Immigration Law

ICE risk assessment tool now only recommends 'detain'

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A risk assessment algorithm used by U.S. Immigration and Customs Enforcement that helps determine if a person should be detained or released now only recommends “detain,” according to a new report from Reuters.

“To better align [Immigration and Customs Enforcement] processes to the executive order on Border Security and Immigration Enforcement, a modification was made to the [Risk Classification Assessment] that removed the system recommendation of ‘release,’ ” the Department of Homeland Security told Quartz.

The cited executive order, signed by President Donald Trump early in his administration, called for “the termination of the practice commonly known as ‘catch and release.’ ”

The risk assessment software has been used by ICE since 2013. It weighs factors such as criminal history, employment and flight risk, among others, to make a release or detain determination.

ICE spokesperson Matthew Bourke told Reuters “release” was removed as a possible outcome last year.

“The risk classification assessment removed the release option, but the RCA can still make recommendations on bond eligibility, and may recommend that an ICE deportation officer make a final decision on whether to detain an alien or release the individual in some capacity,” Bourke told Motherboard. “Final custody decisions are always made by ICE deportation officers.”

Historically, many immigrants facing an immigration proceeding were allowed to remain in the community pending their hearing. However, as Quartz notes, those facing immigration proceedings were detained at higher rates than Americans waiting criminal trials.

Closing this gap was one motivation for the development and use of the tool under the Obama administration. However, even before the change made by the Trump administration last year, a Department of Homeland Security report from 2015 threw cold water on the idea that the risk assessment was useful or having a positive impact.

“The tool is time-consuming, resource-intensive, and not effective in determining which aliens to release or under what conditions,” the report reads. It went on to say that by December 2013, the tool only recommended “release” 0.6 percent of the time.

In one 2015 article published in the Georgetown Immigration Law Review, researchers argued that the risk assessment would not reduce current over-detention trends. Instead, they wrote: “The immigration risk assessment may only add a scientific veneer to enforcement that remains institutionally predisposed towards detention and control.”

Beyond immigration, risk assessments have proven controversial in the criminal justice context. Being used in in bail and sentencing decisions around the country, numerous lawsuits have challenged the accuracy, efficacy and opaque nature of these tools with little success.

In the criminal context, these tools usually make their recommendations on a spectrum of low-risk to high-risk. There is no known bail risk assessment tool that only recommends “detain.”

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