As the Trump administration continues its anti-immigrant salvos at the border, Immigration and Customs Enforcement (ICE) has ramped up its aggression domestically. ICE is now not only arresting more people than it has in years, it’s also opting to lock them up whenever possible, whether they’re criminals or not.
In an attempt to accommodate President Trump’s anti-immigrant posture, the agency has launched indiscriminate raids on immigrant communities, borrowed funds from other Homeland Security agencies to pay for more jail beds, and even tweaked its own risk assessment software to recommend mandatory detention for every person in its custody.
It’s this last change, carried out silently by by the agency in 2017, which has become the target of a recent lawsuit by the New York Civil Liberties Union (NYCLU), the state branch of the American Civil Liberties Union.
The Risk Classification Assessment (RCA) program has been used by field agents since 2013 to help determine whether a person arrested by ICE should be kept in detention or be released on bond until their day in immigration court. Whereas before this computer program might have recommend letting go of an undocumented immigrant with no criminal history, ICE has now completely removed the “release” option from the system.
The NYCLU lawsuit, filed last month with U.S. District Court for the Southern District of New York, accuses ICE of stonewalling information requests on how the system makes its recommendations and the effect that the agency’s recent changes have had on levels of detention nationwide. These requests have been met with “radio silence”, NYCLU wrote in an accompanying blog post.
“We want to know what questions people are being asked by ICE agents, what weight is assigned to each answer, and what the national outcomes have been,” says NYCLU attorney Paige Austin. “The entire process has been obscured. Just imagine this happening in a criminal context—it would be crazy if you had no idea what the standards for release were.”
The most recent information available on the program comes from a 2015 oversight report by Homeland Security’s Office of Inspector General. The OIG report found the program to be, among other things, “time consuming, resource intensive, and not effective in determining which aliens to release or under what conditions.”
Before the changes to the risk assessment program were made, only immigrants with certain criminal convictions would be subject to mandatory detention or immediate removal. But that’s no longer the case. Of the 44,000 immigrants ICE is currently imprisoning—an all-time high for the agency—nearly 60 percent have no criminal record, according to a June analysis of case data by Syracuse University’s Transactional Records Access Clearinghouse. The analysis also found that 75 percent of immigrants detained either had no prior convictions or had only committed a minor offense such as a traffic violation.
ICE has described the change to its risk assessment system as part of a move to “better align” agency processes with Trump administration priorities, and maintains that final custody decisions are always made by ICE deportation officers.
“ICE personnel still use information presented in the RCA to make final detention decisions. The modification to the RCA did not affect bond policy. It did not impact bond determination or recommended bond amounts,” Matthew Bourke, an ICE spokesman, said in an email to the The American Prospect.
But the idea of ICE officers routinely overriding a system recommendation in favor of release seems unlikely, particularly in light of the actions and rhetoric from top ICE officials and the White House. In fact, in that 2015 OIG report, ICE reported that its agents only acted contrary to system recommendations in fewer than 8 percent of decisions.
The spike in the number of people in immigration detention centers correlates neatly with a pivot by the Trump administration (and, consequently, ICE) towards a no-holds barred, lock-’em-all-up approach to immigration enforcement. But without more information, it’s impossible to say with certainty how much the modificationto ICE’s risk assessment program has really contributed.
The agency’s changes have also made immigration attorneys and counselors unsure about what courses of action to recommend to immigrants who’ve been detained. The consensus among groups groups like NYCLU had been to recommend people remain silent when dealing with immigrant officers. But the black box that is ICE’s custody assessment process has thrown that approach into question.
The 2015 OIG report found that the risk assessment software requires ICE agents to ask immigrants in their custody up to 178 questions in an interview process that can take hours at a time. It wasn’t clear then and remains unclear now which special circumstances can lead an officer to personally decide in favor of an individual, if any at all.
“The real question now is, are there people who shouldn’t remain silent if they want to avoid detention,” says Austin, who has participated in “Know Your Rights” workshops and trainings. ““It’s hard to say what the best advice is anymore... It’s frustrating.”
The NYCLU lawsuit could succeed where its FOIA attempts failed. Until such time, however, the “human toll” of the change to ICE’s software, as the NYCLU puts it, will keep piling up as undocumented immigrants are forced to sit behind bars longer. The median time between when an individual in the New York City area is first detained and when they first appear in immigration court is now 80 days, according to NYCLU. That’s nearly the double the wait time a year ago and more than seven times as longas in 2014.