Immigration and Customs Enforcement now jails nearly every immigrant it arrests in New York — including those who don’t pose a threat — for weeks or even months until they go before a judge, according to data released in a new lawsuit.
This is a drastic shift resulting from a Trump-era change to how ICE uses its “risk assessment” algorithm, along with stricter decisions by the agency’s officers, according to the New York Civil Liberties Union and the Bronx Defenders, which filed suit against the administration Friday. “The policy violates due process and has drastically increased the size of the immigration detention population,” said the NYCLU’s Amy Belsher.
An ICE spokesperson said the agency "does not comment on pending litigation."
The data in the complaint only covers the New York City region, but it highlights a change that took place nationwide after President Trump took office and began ramping up immigration enforcement dramatically.
Since 2013, ICE has been using the Risk Classification Assessment algorithm, an in-house tool for categorizing arrestees and helping to determine how much freedom they should have before their trials. For every immigrant arrested, ICE agents enter the answers to up to 178 questions about subjects, such as community ties and biographical information, and the algorithm spits out a response.
When it was first put to use, the algorithm would give one of four answers: jail, release on bond, release without bond, or refer the decision to an ICE supervisor. In June 2017, the Trump administration changed the algorithm so that it no longer recommends the release of any immigrant, which Reuters first reported in 2018. Now it only offers two options: to detain or to refer to an ICE supervisor.
This has had a massive effect in New York, the lawsuit alleges: In the four years prior to the algorithm change, about half of immigrants arrested in New York who were regarded as low risk were released until their trial. Now 96% of them are held in jail for as long as three months, the lawsuit says.
In 2018 — the first full calendar year after the changes — the algorithm deferred its recommendations to a supervisor for 119 of the 128 (93%) lowest-risk immigrants in New York City, and recommended detention for the other nine, according to data provided by the NYCLU to BuzzFeed News. Whereas many of those immigrants would have been released previously, ICE supervisors chose instead to detain nearly all of them.
"The impact of detention on detained immigrants can be devastating, separating people from their families and communities,” said Thomas Scott-Railton, an Immigrant Justice Corps fellow at the Bronx Defenders. “Detention can be particularly harmful — even fatal — for people with physical and mental health needs, because the health services at New York City–area detention facilities are woefully inadequate.”
The changes have contributed, in part, to a massive increase in the number of undocumented immigrants detained in ICE custody. Nearly 50,000 people across the country were held in ICE detention centers at the end of April 2019, according to Syracuse University’s Transactional Records Access Clearinghouse. This is almost double the number of people who were detained in 2015. Sixty-four percent of the people detained as of April 2019 had no criminal conviction, up from 39% in early 2015.