Recommendations for an Emergency Supplemental Fund to Protect Families and Asylum Seekers at the U.S.-Mexico Border

1. Fund an Alternatives to Detention (ATD) Initiative

Justification: Immigration detention facilities are not appropriate settings for children and parents with children. Furthermore, there are more cost-effective alternatives that are appropriate in many cases. ICE currently spends over $2 billion, or $160 per person per day, on the detention of up to 34,000 immigrants on any given day.

• Children and families should not be detained, especially in existing detention facilities. In 2009, DHS ceased using its primary detention facility for families after multiple reports of inappropriate conditions for and treatment of children and their parents. The United States should not detain children, including infants and small children. Families should only be held for processing in custody for short periods of time and in conditions appropriate for family detention. Per requirements of the Flores agreement on treatment of children in DHS custody, DHS should always place children in the least restrictive setting appropriate. If families are detained because they are determined to be a danger or a flight risk, and alternatives are not appropriate, then DHS should only use facilities and standards appropriate to civil immigration detention.
• For cases that need supervision, DHS needs funds to launch an Alternatives to Detention initiative for border cases. The supplemental should fund ICE to launch a nationwide initiative to increase its use of alternatives to detention for cases released in the border areas and elsewhere who pose no security risk but that need additional supervision to mitigate flight risk. This initiative should provide case management, supervision, and/or monitoring to support appearance in the area in which individuals relocate upon release. For families, Congress should use the supplemental to direct DHS to build on models of community-based alternatives, such as the pilots underway by Lutheran Immigration and Refugee Service and the U.S. Conference of Catholic Bishops.
• ICE must be authorized to respond on a case-by-case basis. The American immigration system works best when each case is considered on its own merit. However, ICE currently lacks the flexibility it needs to make custody decisions on a case-by-case basis. The supplemental should grant ICE the ability to shift funds, where appropriate from detention to other measures to support appearance.

2. Increase Access to Legal Information and Counsel Early in the Process

Justification: The large increase in border crossers and protection requests is driven in part by a reported lack of information and misinformation about the immigration process in the U.S. The Legal Orientation Program (LOP) provides for competent nonprofit lawyers to explain U.S. procedures to detainees and helps migrants determine the most appropriate course for them. According to a 2012 Justice Department study, LOPs create efficiencies in adjudication by reducing processing time and time spent in detention, and saved the government approximately $18 million.

• Fund DOJ to expand access to early legal information presentations – including for families. LOP is a proven program, and especially if processing and deportation for recent border crossers will be accelerated, immigration detainees should be given access to lawyers within a few days of arrival. Congress should appropriate funds to expand LOP from the existing 25 sites to all facilities nationwide.
• Fund DOJ to support increased quality representation early in the process for indigent asylum seekers. The bill should fund expansion of projects to increase access to legal counsel for vulnerable populations, including unaccompanied children. A 2014 independent study by NERA Economic Consulting found that providing counsel to indigent immigrants could effectively pay for itself.

3. Reduce Backlogs and Vulnerability to Abuse, With Fair Case-by-Case Decision-Making

Justification: Prior to the most recent surge, in April 2014, there were already over 366,000 cases are pending nationally for approximately 19 months. Similarly, because the USCIS Asylum Office continues to divert resources to addressing credible fear and other protection screenings at the border, the backlog in affirmative asylum cases has grown substantially since the influx at the border. The supplemental should address the imbalance in funding for the courts and address the backlog nationwide. If the bill simply re-directs immigration court resources to detained border cases it will only exacerbate national backlogs in the non-detained dockets especially. The Asylum Office needs funding to manage both expedited removal and its affirmative caseload.

• Fund EOIR to increase immigration court staffing nationally to address removal hearing delays and eliminate hearing backlogs with adequate time and safeguards to ensure access to justice and fairness. The bill should include funding to increase resources and staffing for the immigration courts to ensure that individual merits hearings are generally scheduled within approximately six months of the filing of an asylum application.
• Fund USCIS to increase asylum office staffing and resources to reduce backlogs and for the conduct of in-person credible fear and reasonable fear interviews with adequate time and safeguards to ensure access to justice and fairness. The bill should fund the Asylum Division to conduct timely screening interviews in expedited removal and reinstatement of removal without diverting officers from the affirmative asylum process.

4. Do Not Weaken Protection Safeguards including the TVPRA

Justification: DHS should not weaken safeguards including protections within the Trafficking Victims Protection Reauthorization Act (TVPRA) to identify and protect asylum seekers, victims of trafficking, vulnerable children and others with protection concerns and the bill should provide funds to for timely in person protection screening. Unaccompanied children should be screened for protection concerns by experts outside of a law enforcement agency, and screening should occur after an individual has had some time to recover from what are often traumatizing journeys, outside of border detention facilities, and in conditions that do not place children in a compromised position to discuss their victimization. A 2005 U.S. Commission on International Religious Freedom report on adult asylum seekers processed in expedited removal found that border officers often failed to follow procedures designed to identify individuals with protection concerns. As documented by a 2011 Appleseed report on the concerns of screenings of Mexican unaccompanied children at the border, the challenges of a screening in these conditions are especially acute for children, many of whom are extremely young, potentially victims of trafficking, and unable to express fears to an armed border officer after long and harrowing journeys.

• Unaccompanied alien children (UACs) should receive appropriate screenings and referrals to HHS custody for care and evaluation for protection or reunification. Congress should not amend the TVRA to expedite the screenings and removals of Central American UACs.