Document Type

Article

Publication Date

2020

Abstract

The U.S. Department of Homeland Security arrests as many as 500,000 migrants per year and detains more than 350,000 of them through Immigration and Customs Enforcement (ICE). Since 2012, ICE has relied on an automated Risk Classification Assessment (RCA) system to recommend whom to detain and whom to release. The authors are the first to obtain access to its algorithm and this Article is the first to make that system’s methodology public. While purportedly basing these recommendations on indicia offlight risk and risk to public safety, the RCA in fact relies on an algorithm driven by political preferences. By linking detention to enforcement policy rather than risk, the RCA lost its underpinning in the Constitution. In addition, compromises in its logic thwarted the program’s ability to deliver the harm reduction, transparency, and uniformity it promised. Ultimately, our data and analysis reveal that manipulation of the RCA resulted in automated detention recommendations for hundreds of thousands of people in violation of the Constitution. The RCA thus delivers mass incarceration of immigrants with staggering efficiency. In the end, we argue the RCA supplied a veneer of risk to a tool of punishment.

Comments

Guide to FOIA Documents on the U.S. Department of Homeland Security’s Risk Classification Assessment for Immigration Detention

FOIA REQUESTS

Requestors Benjamin Casper, Linus Chan, Kate Evans, Robert Koulish, and Mark Noferi asked DHS to release materials concerning its new Risk Classification Assessment system through five targeted requests. Each of those filings, itemizing the categories of documents sought and justifying the basis for their release and the waiver of fees, is available here.

CONSOLIDATED RCA FOIA DOCUMENT RELEASE: 2016-ICLI-00018

This document is a compilation of DHS’s staggered responses to our requests concerning the RCA components, mandatory detention analysis, and special vulnerabilities screening. It includes the RCA’s business rules, training materials, memoranda concerning changes to the RCA, and presentations on its operations and outcomes. These documents were released in response to a lawsuit filed in the U.S. District Court for the District of Minnesota and a subsequent settlement agreement.1 The authors were represented in this litigation by pro bono attorneys Shannon Bjorkland, Michelle Grant, Colin Wicker, and Emily Mawer from Dorsey & Whitney LLP. Additional documents released in response to the requests for the National RCA Summary Print-outs and the St. Paul RCA Summary Print-outs will be discussed in future publications. The index provides the names and page numbers of each document included in the consolidated FOIA response.

ATP RULES MATRIX v3

This spreadsheet provides the corresponding values relied on by the business rules to generate the RCA’s assessment as to special vulnerability, mandatory detention, public safety risk level, flight risk level, detention/release recommendation, bond recommendation (if any), custody classification level if detained, and community supervision level if released.

COMBINED RCA VIRTUAL UNIVERSITY RELEASE

This document compiles screenshots of the Virtual University training course on the RCA given to all users within DHS.

STIPULATION OF SETTLEMENT AND DISMISSAL & SEARCH VERIFICATION LETTER

The document outlines the terms of the settlement agreement underlying the plaintiffs’ agreement to dismiss the lawsuit. The settlement required defendants to certify that all records responsive to certain categories of our FOIA requests were located and produced so that the absence of certain documents in DHS’s production signified that they did not exist within DHS.

ORIGINAL ICE PRODUCTIONS

This folder contains DHS’ original, incremental, document production with accompanying cover letters that verify the contents and date of each production. All FOIA responses contained in these folders have been consolidated and organized in the above documents for ease of reference.

1 Benjamin Casper, Katherine Evans, and Robert Koulish v. U.S. Dep’t of Homeland Sec., and U.S. Immig. & Customs Enforcement, No. 0:16-cv-00380-ADM-BRT (D. Minn.) (filed Feb. 16, 2016).

Additional Research on the Impact of the Risk Classification Assessment System on Immigration Detention

Injustice and the Disappearance of Discretionary Detention under Trump: Detaining Low Risk Immigrants Without Bond

This Report demonstrates that the Immigration and Customs Enforcement (ICE) violates legal requirements to provide immigrants with an individualized custody determination. Trump’s enforcement policies brought a surge of low-risk immigrants into ICE custody. The detention risk tool was supposed to train officers and strongly discourage them from detaining low-risk immigrants who posed no harm to society and were not a flight risk. Data received pursuant to FOIA show the opposite result. ICE has failed to perform the individualized assessment and restrict its use of civil detention to only those whose high levels of dangerousness and risk of flight justify their incarceration. The data show that officers have manipulated the risk tool by subjecting low-risk immigrants to blanket detention, which has come to define the no-release Trump immigration policy in the New York City area.

Available at: https://scholarship.law.duke.edu/faculty_scholarship/4006/

Punishing With Impunity: The Legacy of Risk Classification Assessment in Immigration Detention

In 2012, the Department of Homeland Security adopted a risk classification assessment ("RCA") tool to run on migrants in the custody of Immigration and Customs Enforcement ("ICE"). The risk tool helped determine who was detained and who was released from ICE custody. It was intended to curb detention rates by limiting detention based on risk of flight and danger and to ensure that the conditions of civil immigration detention were distinct from those in criminal detention. This Article presents data from several RCA datasets received pursuant to the Freedom of Information Act.

The story of the RCA is one of manipulation, subversion, and bias. In this study, we examine the RCA's outcomes for migrants with special vulnerabilities, migrants subject to mandatory detention, and release. We demonstrate that over time the risk tool recommended release or bond for fewer and fewer categories. Further, ICE officers' punitive use of detention defeated attempts at top-down reform and resulted in detention without bond for nearly every migrant.

As the Biden administration faces mounting criticism over its detention policy, our results amplify calls to shift the paradigm in immigration enforcement and to eliminate the use of detention as the predominant method of immigration control.

Available at: https://scholarship.law.duke.edu/faculty_scholarship/4115/

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Library of Congress Subject Headings

Emigration and immigration law, Risk assessment

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