A Practical Immigration Decarceration Approach for the New Biden Administration

Guest post by Matthew Boaz. Matthew is the Visiting Assistant Clinical Director of the Immigrant Rights Clinic at Washington & Lee School of Law. He was formerly a Senior Detention Attorney in a universal representation pilot program at the Immigrant Rights Project of the American Friends Service Committee in Newark, NJ.

With the advent of a new administration comes the opportunity for radically re-imagining what might be possible, a chance to envision an alternative drastically different from the present. In the midst of a pandemic, at a time when fundamental norms are broadly being reconsidered, the Biden administration is presented with just such an opportunity. Currently, there are 14,715 individuals being held in immigration detention in the United States. This is the lowest number of immigrant detainees in the U.S. in the past 20 years.

There is some debate about what has caused the drop in detention numbers from their high-point of 55,000, but it is likely due to a combination of restrictions imposed by the Trump administration in the COVID-era, limiting the number of people who were permitted to enter the country. This broad extension of prohibited entry built upon the MPP framework that had been diverting asylum-seekers to Mexico for several years. In addition, court orders across the country resulted in the release of vulnerable individuals being held in detention centers. Regardless, the result is that the detention population has shrunk substantially. This news should be met with enthusiasm and provides an opportunity for advocates to capitalize upon these developments. One possibility is to make the massive reduction in detention size the new norm, or even to continue to reduce the size of the detained immigrant population in the U.S.

In this post, I advocate for a significant reallocation of detention funds toward a universal representation program. At present, the costs of immigration enforcement in the United States are astronomical. More money is spent on immigration enforcement than all other areas of federal law enforcement combined. The costs of keeping one individual in immigration detention vary from $133 to $775 per day. In addition to the fiscal costs, the harm to individuals and their families has been well-documented. Nevertheless, the United States has continued to rely on immigration detention in growing numbers in the past decades.  

Unlike defendants in the U.S. criminal justice system, immigrants in removal proceedings are not provided counsel, because they are in civil proceedings. Those who are unable to afford an attorney must represent themselves against trained government counsel. This lack of due process persists despite the fact that removal from the United States may result in separation from family and, as Supreme Court Justice Louis Brandeis said, "all that makes life worth living." The result of this adversarial mismatch in U.S. immigration courts is that those without attorneys are significantly less likely to succeed in their cases. The U.S. government could provide counsel by using funds that would otherwise be spent on detention.

One benefit of this approach is that it utilizes a fiscal argument that has already been broadly embraced by a conservative audience. Specifically, right-leaning states, including South Carolina and Mississippi have worked to reduce their overall criminal prison populations with no adverse effects on public safety. This same approach can be successfully utilized in immigration proceedings, where the primary purpose of detention is to ensure that individuals simply show up to their proceedings. In fact, there is evidence of broad support for such a program already. Providing universal representation to all individuals that it would otherwise detain would actually result in cost-savings for the United States government, since those who have attorneys attend court nearly 100% of the time. The overall costs of alternatives to detention, including the provision of counsel, would be substantially less expensive than the current regime. Moreover, it would have important extrinsic benefits: (1) the elimination or significant reduction of the size of the immigration detention system, (2) an increase in the likelihood of success of those seeking to remain in the United States, promoting both justice and the unification of families, and (3) a net fiscal benefit.

Successful universal representation programs have already been implemented throughout the United States. The most notable is the New York Immigrant Family Unity Project (NYIFUP), which started in 2013 and in its first three years, represented nearly 2,000 individuals. Simply having a NYIFUP attorney increased the likelihood of success for detained individuals in removal proceedings from 4% (those without counsel) to 48% (those with NYIFUP counsel), an 1100% increase. The success of this program led to other pilots, including in New Jersey, Maryland, California, and a number of other regions. Each of these programs receives a combination of public and private funding but would need much more substantial resources in order to be fully universal. At present, there are at least 42 publicly funded local and state deportation programs in the United States. Cost estimates for full representation in removal hearings are approximately $5,000 for non-profit attorneys, while the cost of detaining an individual for the average period of 55 days results in costs between $7,000 and $16,000, depending on whether an individual is being detained with other family members.

The Biden administration has recently proposed, through legislation, the potential provision of counsel to certain individuals considered vulnerable, including children, people with disabilities, victims of abuse, torture, and violence, pregnant or lactating women, and all parents of U.S. citizen children. While this is a welcome initial step, such a provision would still exclude a large, equally vulnerable contingent – those being held in immigration detention. These individuals are less likely to have counsel in their proceedings and less likely to succeed in their cases without counsel.

If the purpose of immigration detention is to ensure that individuals appear as scheduled for their civil hearings, there are a number of less expensive and equally efficient ways to do so. The Biden administration has included in its proposed legislation some of these non-carceral alternatives, a welcome change from the prior administration.  This post’s proposal to provide counsel in lieu of detaining immigrants is one idea for how the Biden administration might expand representation further. The implementation of such a system would help keep families together, lower costs to U.S. taxpayers, and promote a more just and equitable society.

Note: This Article has been accepted for publication by the Tennessee Law Review Association, and will appear at 89 Tenn. L. Rev. _____ (2021). Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3801782

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How to cite this blog post (Harvard style) 

Boaz, M. (2021). A Practical Immigration Decarceration Approach for the New Biden Administration. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/03/practical [date]