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Immigration and Customs Enforcement should shi its model when processing non-
criminal asylum seekers so as to assume Alternatives to Detention as the first-line re-
sponse and to require that use of detention be justified by establishing that an asylum
seeker constitutes a national security risk or a high risk of absconding.
The right to asylum is one of the key forms of
legal protection that is omered to migrants ar-
riving in the United States who have suffered
persecution or face a risk of persecution in their
countries of origin. To qualify for asylum, asylum
seekers must be in the U.S. and must prove that
they meet the definition of a refugee,
1
as pro-
vided under the U.S. Immigration and Natural-
ization Act (INA) § 101(a)(42) (A) and (B) (1).
2
The
INA also establishes the process for applying for
asylum, which is made up of both the “affirma-
tive” and the “defensive” asylum application process. Applicants applying under the af-
firmative process must do so within one year of arriving in the country or demonstrate
extenuating circumstances that delayed their application. Every day, approximately
1,400 non-criminal asylum seekers are detained in the U.S.;
3
asylum seekers are typically
detained by Immigration and Customs Enforcement (ICE) while undergoing the defen-
sive asylum process.
4

AutLvsis
The widespread use of detention is problematic because it violates the rights of asylum
seekers and because of its excessive cost. The United Nations High Comissioner for Ref-
guees (UNHCR) holds that as the majority of asylum seekers are not accused of having
comiued a crime, their detention violates the fundamental right to liberty and may be
classified as arbitrary if not substantively justified by demonstrable risk.
5
Any imposition
of arbitrary detention violates the U.S. Constitution and thus must be highly scrutinized.
Detention is additionally problematic because of conditions in detention facilities; de-
tained asylum seekers are onen housed in jails or jail-like institutions and are treated
as criminals, forced to wear prison uniforms, handcuffs, and sometimes even shackles.
6

Furthermore, the use of detention is expensive, with an estimated base cost of $122 per
detainee per day, and this estimate increases to $166 when operational costs are consid-
ered.
7
Given the realities of limited government resources, such an expensive program
should be critically examined and have to prove significantly higher success rates than
less expensive alternatives in order to merit its implementation.
Nexf Sfe¤s
ICE should limit the detention of non-criminal asylum seekers in favor of Alternatives
to Detention (ATDs). ATDs are preexisting, effective and less expensive than detention,
and include measures such as telephone reporting, radio frequency, global positioning
tracking and home visits.
8
While the ICE has increased use of ATDs,
9
the agency should
Kev Ftcfs
Approximately 1,400 non-
criminal asylum seekers are de-
tained daily in the U.S.
13
Detention costs an estimated
$166 per detainee per night.
14
Estimated costs of ATDs vary
from $0.40 to $14 per day.
15
21
20 21
shi its model so that ATDs are consistent-
ly explored as the first solution. Accord-
ingly, the burden of proof must be shied
such that authorities have to justify the use
of detention with evidence of security or
absconding risks; under the current para-
digm, asylum seekers must demonstrate
that they are not a security risk or high risk
of absconding in order to qualify for ATDs.
ATDs are less restrictive than detention
and thereby constitute less of a violation
of asylum seekers’ freedoms. Furthermore,
daily ATD program costs are estimated to
vary between $0.30 and $14 per day.
10
ATDs are also proven to be effective, with a 93-
98 percent immigration court appearance rate.
11
Authorities could still detain asylum
seekers with a criminal record or those that posed a demonstrable risk. Furthermore,
the increased implementation of ATDs would free up funding that could be shied to
programs proven to effectively increase national security. Other critics may argue that
ATDs continue to violate the human rights of asylum seekers and that all detention mea-
sures should be eliminated.
12
Given current national security concerns, however, ATDs
represent a more viable option and would be an important step toward improved pro-
tection. Opponents may also raise concerns about the economic self-sufficiency of non-
criminal asylum seekers released and monitored through ATDs. These individuals could
be regulated, however, by the same policies that already exist to govern the economic
and employment status of the proportion of asylum seekers that are released into the
community and are neither detained nor monitored through ATDs.
Euouofes
1. INA § 208(a)(2)(E) (Online at hp://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1687.html)
2. INA § 101(a)(42) (A) and (B) (Online at hp://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa
7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act)
3. Schriro, Dora. 2009.”Immigration Detention Overview and Recommendations”. Department of Homeland Security, Immigration and Cus-
toms Enforcement. 6 October 2009. hp://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf (last accessed October
30, 2011).
4. U.S. Citizenship and Immigration Services (USCIS). 2011. “Obtaining Asylum in the United States.” 10 March 2011. hp://www.uscis.gov/
portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=dab9f067e3183210VgnVCM100000082ca60aRCRD&vgnext
channel=f39d3e4d77d73210VgnVCM100000082ca60aRCRD (last accessed October 30, 2011).
5. UN High Commissioner for Refugees, Detention of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended Prac-
tice, 4 June 1999, EC/49/SC/CRP.13, available at: hp://www.unhcr.org/refworld/docid/47fdfaf33b5.html (last accessed October 30, 2011)
6. Human Rights First (HRF). 2007. Background Briefing Note: Detention of Asylum Seekers in the United States: Arbitrary Under the ICCPR,
at 6 (Jan. 2007), available at hp://www.humanrightsfirst.info/pdf/061206-asy-bac-un-arb-det-asy-us.pdf (last accessed October 30, 2011).
7. National Immigration Forum. 2011. “The Math of Immigration Detention: Runaway Costs for Immigration Detention Do Not Add Up to
Sensible Policies.” August 2011. hp://www.immigrationforum.org/images/uploads/MathofImmigrationDetention.pdf (last accessed
October 30, 2011), p. 2.
8. Schriro, pg. 20.
9. United Nations High Commissioner for Refugees (UNHCR). 2009. “US initiative offers asylum-seekers an alternative to detention.” 25
November 2009. hp://www.unhcr.org/4b0d643a6.html (last accessed October 30, 2011).
10. National Immigration Forum, p. 6.
11. American Immigration Lawyers Association (AILA). “Alternatives to Detention Position Paper”. hp://www.aila.org/content/default.
aspx?docid=25874 (last accessed October 30, 2011).
12. UNHCR.
13. Schriro, Dora. 2009.”Immigration Detention Overview and Recommendations”. Department of Homeland Security, Immigration and Cus-
toms Enforcement. 6 October 2009. hp://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf (last accessed October
30, 2011).
14. National Immigration Forum. 2011. “The Math of Immigration Detention: Runaway Costs for Immigration Detention Do Not Add Up to
Sensible Policies.” August 2011. hp://www.immigrationforum.org/images/uploads/MathofImmigrationDetention.pdf (last accessed
October 30, 2011), p. 2.
15. Ibid., p. 6.
16. The Global Detention Project (GDP). 2009. “United States Detention Profile.” March 2009. hp://www.globaldetentionproject.org/
countries/americas/united-states/introduction.html (last accessed October 30, 2011).
17. Wasem, Ruth Elle. 2005. U.S. Immigration Policy on Asylum Seekers. May 5, 2005. hp://www.fas.org/sgp/crs/misc/RL32621.pdf (last ac-
cessed October 30, 2011).
TtLkiuc Poiufs
Detention of non-criminal asylum
seekers is excessively expensive and
raises human rights concerns.
This detention can also constitute
arbitrary detention when detainees
do not demonstrate high risk.
ATDs are proven to be effective and
are considerably less costly and less
restrictive than detention.

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