Punishing with impunity: the legacy of risk classification assessment in immigration detention

• Author: Robert Koulish/Kate Evans
• Position: Full Research Professor and Director of MLAW Programs at University of Maryland, and Lecturer at Law at Francis King Carey School of Law, Baltimore, MD. B.A. University of Pennsylvania; Ph.D. University of Wisconsin/Clinical Professor of Law and Director, Immigrant Rights Clinic, Duke University School of Law; B.A., Brown University; J.D. New ...
• Pages: 1-72

ARTICLES

PUNISHING WITH IMPUNITY: THE LEGACY OF

RISK CLASSIFICATION ASSESSMENT IN

IMMIGRATION DETENTION

ROBERT KOULISH* AND KATE EVANS**

ABSTRACT

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 data-

sets 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 vulnerabil-

ities, migrants subject to mandatory detention, and migrants eligible for bond

* Full Research Professor and Director of MLAW Programs at University of Maryland, and Lecturer

at Law at Francis King Carey School of Law, Baltimore, MD. B.A. University of Pennsylvania; Ph.D.

University of Wisconsin. I wish to thank the 2019 Law and Society Association Meetings in Washington

DC, the Section 002 audience in particular, for helpful comments, my colleague Ernesto Calvo for in-

formative discussions, Jose Cabezas for consultation and research assistance, and Kelsey Drotning,

Elbereth Fernandez, Kee Hyun Park, and George Shalloway for research assistance. I also wish to thank

colleagues attending annual Law & Society meetings and the CINETS International Crimmigration

Network for their helpful comments at roundtables, panel presentations and during informal conversa-

tions, and reviewers. © 2021, Robert Koulish and Kate Evans.

** Clinical Professor of Law and Director, Immigrant Rights Clinic, Duke University School of

Law; B.A., Brown University; J.D. New York University School of Law. I thank Linus Chan, Ben

Casper, Mark Noferi, and the remarkable pro bono counsel team from Dorsey & Whitney LLP led by

Shannon Bjorklund and Colin Wicker who litigated our FOIA requests. I would also like to thank partici-

pants at the 2021 Border Criminologies conference and the UNC-Duke Law Clinical Scholarship

Workshop for their support and helpful feedback. I am indebted to Natalie Pate and Andrew Lindsay for

their invaluable research assistance throughout this project and to Christine Mullen for making this

Article possible. Thanks to the incredible editors at the Georgetown Immigration Law Journal for their

careful review and guidance in publishing this research.

1

and release. We demonstrate that over time the risk tool recommended

release or bond for fewer and fewer categories. Further, ICE officers’ puni-

tive 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.

TABLE OF CONTENTS

INTRODUCTION ......................................... 3

I. THE FRAMEWORK FOR THE RCA . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. The Legal Parameters for Immigration Detention . . . . . . . 9

B. The Operation of the RCA within the Immigration Detention

System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

C. The Role of the RCA in the Crimmigration Narrative . . . . . 15

II. DATA AND METHODOLOGY: ICE DETENTION DECISIONS IN THREE

DATASETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

III. FINDINGS: WIDESPREAD DETENTION OF VULNERABLE AND LOWER

RISK MIGRANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

A. People with Special Vulnerabilities: Underreported and

Largely Detained . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

B. Mandatory Detention: Congressionally Imposed Custody of

Lower Risk Migrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

C. Subverting the RCA Into a Tool of Punishment . . . . . . . . . 35

1. Algorithmic Bias: Subversion from the Top . . . . . . . . 36

2. Officer Bias: Subversion from the Bottom . . . . . . . . . 56

3. The Loss of Algorithmic Fairness Due to Algorithmic

Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

IV. THE IMPLICATIONS OF THE RCA’S RESULTS FOR DETENTION POLICY

UNDER THE BIDEN ADMINISTRATION ....................... 63

A. People With Special Vulnerabilities. . . . . . . . . . . . . . . . . 64

B. The Scope of Mandatory Detention . . . . . . . . . . . . . . . . . 66

2 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:1

C. The Future of the RCA . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

D. The Nature of Immigration Enforcement and the Use of

Detention .................................... 69

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

INTRODUCTION

The Biden administration took office amid promises to promote racial jus-

tice, decarceration, and a humane approach to immigration enforcement.

1

A

flurry of executive orders and policy memoranda announced the administra-

tion’s efforts toward each goal.

2

However, immigrants as well as their fami-

lies and advocates have watched a disturbing increase in the number of

people detained.

3

Indeed, rather than reversing course from the Trump

administration predecessor, these commitments appeared to be sidelined.

4

This increase portends a return to the detention policies of the Obama and

Trump administrations: mass incarceration of Black, Latinx, and Asian

migrants

5

under the guise of risk mitigation.

Since 2012, the decision to detain or release someone after an arrest for an

immigration violation has been guided by the Risk Classification Assessment

1. See The Biden Plan for Securing Our Values as a Nation of Immigrants, BIDEN HARRIS

DEMOCRATS, https://perma.cc/NE66-QTAP; The Biden Plan to Build Back Better by Advancing Racial

Equity across the American Economy, BIDEN HARRIS DEMOCRATS, https://perma.cc/5DK2-94LB; The

Biden Plan for Strengthening America’s Commitment to Justice, BIDEN HARRIS DEMOCRATS, https://

perma.cc/4T5F-XRU8; Lisa Lerer, Biden’s Sky-High Promises on Racial Justice, N.Y. TIMES (Apr. 24,

2021), https://perma.cc/9UE2-UNVU.

2. E.g., Advancing Racial Equity and Support for Underserved Communities through the Federal

Government, Exec. Order No. 13,985, 86 Fed. Reg. 7009 (Jan. 20, 2021); Revision of Civil Immigration

Enforcement Policies and Priorities, Exec. Order No. 13,993, 86 Fed. Reg. 7051 (Jan. 20, 2021);

Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention

Facilities, Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021); Establishment of Interagency Task

Force on the Reunification of Families, Exec. Order No. 14,011, 86 Fed. Reg. 8273 (Feb. 2, 2021).

3. JORGE LOWEREE & AARON REICHLIN-MELNICK, AM. IMMIGR. COUNCIL, TRACKING THE BIDEN

AGENDA ON IMMIGRATION ENFORCEMENT 22–23 (2021), https://perma.cc/3LES-5L6Z; Hamed Aleaziz,

The Number of Immigrants Jailed by ICE Has Ballooned under Biden This Year, BUZZFEED NEWS (June

29, 2021, 6:17 PM), https://perma.cc/K3VM-GXE8; Philip Marcelo & Gerald Herbert, Immigrant

Detentions Soar Despite Biden’s Campaign Promises, ASSOCIATED PRESS (Aug. 5, 2021), https://perma.

cc/2TVU-5MRQ; NAT’L IMMIGRANT JUST. CTR., ROADMAP TO DISMANTLE THE U.S. IMMIGRATION

DETENTION SYSTEM, (2021), https://perma.cc/S28L-ZZBX.

4. LOWEREE & REICHLIN-MELNICK, supra note 3, at 18–24; Walter Ewing, Biden’s Actions on

Immigration Enforcement Have Been Inconsistent Since Taking Office, IMMIGR. IMPACT (May 20, 2021),

https://perma.cc/MFS5-7PGU.

5. This Article uses the word “migrants” throughout to avoid both the legal significance of the word

“immigrant” and the offensive nature of the term “alien,” which is still used in the Immigration and

Nationality Act (“INA”). See generally MAI NGAI, Introduction, in IMPOSSIBLE SUBJECTS: ILLEGAL

ALIENS AND THE MAKING OF MODERN AMERICA (2d ed. 2014). In April 2021, both ICE and CBP issued

memorandums instructing agency officials to use “preferred terminology and inclusive language,” align-

ing communications practices with the Biden administration’s guidance. See Memorandum from Tae

Johnson, Acting Dir., U.S. Immigr. & Customs Enf’t, to ICE Leadership, Updated Terminology for

Communications and Materials (Apr. 19, 2021); Memorandum from Troy A. Miller, Senior Off.

Performing Duties of the Comm’r, U.S. Customs & Border Prot., Updated Terminology for CBP

Communications and Materials (Apr. 19, 2021); see also Memorandum from Jean King, Acting Dir.,

Exec. Off. For Immigr. Review, Terminology (July 26, 2021).

2021] PUNISHING WITH IMPUNITY 3