By Diego F. Salinas, Woodson Martin Democracy Program Fellow
On February 22, 2021 Virginia Attorney General Mark Herring joined the attorneys general of New York and Massachusetts along with the Consumer Financial Protection Bureau (CFPB) in suing Libre by Nexus. Libre, which means “free” in Spanish, offers undocumented immigrants being held in immigration detention centers the chance to post bond in exchange for wearing a Libre-issued GPS ankle monitor and paying roughly $420 per month for the service. Since its founding in 2014, Libre has been the target of many lawsuits alleging that the company told clients to sign documents written in a language the client doesn’t understand and threatened individuals with deportation for non-payment, even though Libre is a private company that is not connected with the U.S. government. Last year, the company paid out millions in settlements to the California Department of Insurance and the Virginia Bureau of Insurance, and is under investigation by the U.S. Justice Department along with nearly a dozen state and federal agencies.
In a statement, Libre CEO Mike Donovan “categorically denies all allegations in the complaint” filed this month and argues that “Libre by Nexus is committed to fighting for immigrants scarred by the torture of ‘civil’ immigration detention.” Looking at Libre’s website, it would be easy to think that the for-profit company has the best interest of immigrants in mind. They claim to be focused on fighting the “broken immigration system” and to have reunited over 20,000 families. For individuals who fear for the safety and well-being of their loved ones inside COVID-ridden immigrant prisons the choice seems easy to make: one phone call to Libre and my loved one is free. For the person detained, the idea of trading in a crowded cell for an electronic ankle monitor definitely seems like an improvement. For those watching this process unfold, ankle monitors also appear to be an ideal alternative to the mass detention of immigrants in private for-profit detention centers. So what’s the problem?
In order to understand why Libre by Nexus is being accused of taking advantage of immigrants we must first take a step back and understand the system that enables a company like Libre to exist. We’ll examine the rise and shortfalls of current alternatives to detention programs, address misconceptions about life with an ankle monitor, explore not-for-profit community-based alternatives to detention, and contextualize the future of e-carceration as we move beyond the Biden administration’s first hundred days.
ALTERNATIVES TO DETENTION: THE RISE AND RISE
Alternatives to detention (ATDs) are programs created to reduce the number of people held in detention. ATD programs range from parole to community- and case management-based to “digital solutions” offered by for-profit companies like Libre. In 2003, Congress approved funding to pilot a five-year ATD called the Intensive Supervision Appearance Program (ISAP) which ran in ten cities from 2004 to 2009. A 2005 Immigration and Customs Enforcement (ICE) memo clarifies that ISAP would rely on a “highly-structured supervision model” which would include electronic bracelet monitoring and unannounced home visits, among other tools. The goal of the program was to allow for better case management, improved appearance rates at immigration courts, and compliance with removal orders.
Since 2004, ICE has contracted with Behavioral Interventions (BI), a for-profit subsidiary of the private prison company GEO Group (GEO), to manage its Intensive Supervision Appearance Program. In 2009 ISAP II saw the nationwide expansion of the pilot program with Congress appropriating close to $62 million in funding despite a report describing ISAP as “the most restrictive and costly” option. Over the next decade and a half, ISAP evolved from a pilot program to the sole ATD program offered by ICE. Funding for ATD programs has grown alongside an increasing number of immigrants in detention, in direct opposition to ATD’s goal of reducing detention. According to the Center for American Progress between 2006 and 2016 funding for ATD programs rose from $28 million to more than $114 million. During the same time frame ICE’s budget for detention more than doubled from $1 billion to $2.3 billion. In 2006 roughly 256,842 individuals were detained. In 2016 that number had risen to 352,882 detained individuals.
At the outset of the program enrollment was limited to “high priority categories” of immigrants, namely those who were currently in removal proceedings or were considered dangerous. With ISAP’s expansion came an explosion of immigrants enrolled in the program. As of 2018, close to 84,000 immigrants were enrolled in electronic monitoring through ICE’s ISAP contracts with GEO. Now that ISAP has become the default ATD program, low-risk individuals including single mothers and asylum seekers are increasingly being enrolled in ankle monitoring programs, a move that immigrant advocates and legal experts have denounced.
BETTER OUT THAN IN
Advocates for ATD programs are acutely aware of the negative effects of incarceration and the frequent reports of facilities withholding medical care, providing spoiled food for those detained, and physical or sexual abuse, some in retaliation to calls for improved conditions for those being detained. Adding to the horror is the increase in the number of children and adults who have died in detention in the past decade as well as the rampant spread of COVID-19, which resulted in the death of a Canadian man held at an Immigration Centers of America (ICA) facility in Farmville, VA. With all this in mind it’s no wonder that lawyers fight to get their clients enrolled in ISAP and immigrants themselves acknowledge that they’d prefer wearing an ankle monitor to sitting in a detention center.
There are also proven benefits to allowing immigrants and asylum seekers to wait for their paperwork to process outside of detention. ATDs increase the likelihood that immigrants and asylum seekers have access to quality legal representation. Only 14% of detained immigrants acquire legal counsel compared to 66% of non-detained immigrants. Studies repeatedly demonstrate that families with legal counsel appear at court 98% of the time, are more likely to have successful outcomes in court, and are more likely to apply for relief from deportation.
Immigrants placed on ankle monitors are also more likely to stay in the United States for longer. When people move from detention to an ATD they are also moved from the detained docket to the non-detained docket “which is so backlogged that it takes years for these cases to be heard and resolved.” In FY2019 ICE reported that the non-detained docket continued to increase, surpassing 3.2 million cases for the first time compared to the 50,922 individuals who were on the detained docket. The vast majority of the backlog is made up of civil immigration cases which include cases for asylum seekers, those who overstayed visas, and unauthorized border crossings. The average wait time for a case was 578 days while asylum seeker cases can take as long as three years. This wall of waiting is detrimental to the mental, physical, and emotional health of those awaiting their case to process and to the case itself. The wait time can complicate cases as circumstances change and witnesses become unavailable. Coupled with the Trump administration’s policy of detaining asylum seekers while their cases are pending, this can lead to people who are awaiting court decisions to abandon their case.
The COVID-19 pandemic has only exacerbated the backlog, causing that 500 day processing estimate to shoot up to over 700 days. The pandemic has caused some courts to close and in certain cases migrants have had their court date postponed because they or someone in their cellblock caught COVID. While the detained docket has been able to creep along, the non-detained docket was halted for several months. Cases scheduled for July 2020, for example, were pushed back to February 2021 before being postponed again until May or June 2021.
Amidst the chaos, uncertainty, and agony caused by immigrant detention, companies like Libre by Nexus continue to profit. Their services are not dissimilar from those offered by ISAP, including the use of ankle monitors. The main difference here is that exorbitant costs are passed off to Libre’s clients, many of whom struggle to pay the $420 monthly fee for the ankle monitor. Since Libre is essentially a middleman who fronts the money for the immigration bond, their clients are also saddled with an annual interest rate of about 57% for bail bond loans. As bail bonds for immigrants continue to rise, more and more people are priced out of freedom and companies like Libre swoop in to make a buck.
According to data gathered by TRAC, prior to 2005 all bail bonds issued by judges to immigrants were less than $2,000. Since then immigration bonds have skyrocketed to as much as $250,000 with a median of $4,250 and an average of $14,500 according to documentation from Freedom for Migrants. High bond prices plus lengthy case processing times make Libre by Nexus’ offer seem all the sweeter, pushing families into poverty while lining Libre’s pockets. Though Libre by Nexus announced in June 2020 that it would discontinue ankle monitors in favor of an app-based monitoring system, the companies FAQ page mentions that clients are “not required to pay collateral when using the GPS bracelet.” At the moment, an ankle monitor seems like a small price to pay for your freedom but it is only the start of a system of detention defined not by walls and bars, but by GPS technology and constant anxiety.
ELECTRONIC SHACKLES: THE REALITY OF ANKLE MONITORING
Wearing an ankle monitor, whether it’s issued by ISAP or another provider like Libre by Nexus, isn’t without its own horrors and challenges. The UN Special Rapporteur on the Human Rights of Migrants has stated that “the stigmatizing and negative psychological effects of the electronic monitoring are likely to be disproportionate to the benefits of such monitoring.” There’s a misconception that an ankle monitor is just a little bracelet on your leg but wearers report that the grilletes, Spanish for shackles, cause a great deal of physical, emotional, and mental anguish.
For starters, the grilletes are not designed to be painless. The grilletes used by BI, the GEO Group subsidiary that oversees the ISAP program, can cause swelling, numbness, and severe cramping. The devices can also become very hot while they are charging which has caused scarring and blistering for some wearers. The chafing and blistering caused by the monitors can develop into sores that have a risk of becoming infected and leading to further health complications. One man was in danger of losing his foot when a blister from his ankle monitor became infected. Another woman developed a sore under her monitor which progressed until her entire body was covered in painful sores. Some of the sores dissipated after the e-shackle was removed but sores still cover a large part of her body. Ankle monitors have also been known to burst into flames and electrocute wearers.
Monitors also limit mobility, and not just in the way that you think. In order to be eligible for ISAP you must live within eighty-five miles of an ISAP office and remain in that zone at all times. Leaving your designated zone, even accidentally, can have serious ramifications on your immigration proceedings and an infraction could land you back inside a detention center. Even within a person’s geographic limits, the monitor can further hamper mobility due to the device’s constant need to be charged. The bulky charger and limited cord length requires people to remain chained to an outlet for multiple hours a day lest they risk their device running out of batteries, putting them at risk of being detained again. These technological limitations make it difficult for people to find jobs that are willing to accommodate charging times and unpredictable surprise visit schedules.
ALTERNATIVES TO ALTERNATIVES TO ALTERNATIVES
Members of the immigrant community, advocates, social workers, and lawyers have called for ICE to pivot away from ISAP and detention in favor of community-based ATD models. A community-based approach would transition ICE’s ATD programs from contracts with for-profit companies to partnerships with not-for-profit organizations.
In fact, the U.S. government experimented with a case management-based ATD program for families seeking asylum at the US border known as the Family Case Management Program (FCMP). FCMP was planned as a five-year program running in five cities across the country, but was shuttered in 2017 by the Trump administration after only 1.5 years. FCMP’s case-management design was based on best practices put forth by the UN Refugee Agency, an Australian model of community detention, and prior pro-bono partnerships between ICE and not-for-profit organizations like the US Conference of Catholic Bishops (USCCB) and the Lutheran Immigration and Refugee Service (LIRS). A report by the Women’s Refugee Commission (WRC) found that despite receiving proposals from more experienced not-for-profit organizations ICE ultimately awarded the contract to the for-profit GEO Care citing low costs. However, once GEO Care was required by ICE to subcontract with community-based organizations the company was forced to reduce the number of families it could service, increasing the program’s average cost per family.
Despite this, participants reported a mostly positive experience within the program. ICE’s evaluation, which included interviewing over 100 heads of household enrolled in FCMP, found that:
“99% of participants reported positive relationships with their case managers and many of their responses centered on this relationship and trust. Most of the participants interviewed indicated that beyond providing information, case managers helped them understand the information and helped them cope with the psychological aspect of navigating immigration proceedings. Furthermore, participants stated that comprehending their legal obligations made it easier for them to comply with immigration proceedings.”
Despite bureaucratic limitations the program was able to help a total of 952 families enrolled in FCMP across the five test cities. The data found that 99.3% of program participants complied with immigration court hearings and 99.4% complied with ICE check-in appointments. None of those families wore ankle monitors. Unfortunately due to the program’s early termination, it remains unknown what the success rates would have been since the majority of the participants were still in immigration proceedings when the program ended in June 2017.
According to an ICE spokeswoman speaking on the programs end in 2017, “Since the inception of FCMP, there have only been 15 removals from this program, as opposed to more than 2,200 from ATD [programs]” suggesting that the effectiveness of FCMP was based on increasing removal proceedings rather than granting asylum. ICE also boasts that ISAP is more affordable than FCMP, each program costing $4.40 per person per day and approximately $38.47 per family per day. For comparison, family detention costs roughly $237.60 per family and $79.57 per adult detention. This is in-line with ICE’s view that ATD programs like ISAP are “not a substitute for detention, but allows ICE to exercise increased supervision over a portion of those who are not detained.” As instructed by Congress, ICE has recently modified the ISAP III contract to include Extended Case Management Services (ECMS) inspired by the FCMP principles. As of June 2019 57 families and 59 adults were enrolled in ECMS.
Community-based not-for-profit models have been proven to work time and time again. WRC reports that following the zero-tolerance family separation policy of 2018, the US government asked LIRS and USCCB to provide services to reunited families. LIRS found that “[d]espite a limited time frame for standing up and operating the Family Reunification Support program, LIRS and its partners were able to observe positive qualitative and quantitative impacts on the reunited families enrolled in this community-based program.” The services provided were similar to those offered by FCMP and only cost $14.05 per person per day.
PROMISES OF A SMART BORDER WALL
The Biden administration has signaled that immigration is one of their top priorities. Since taking office, President Joe Biden has taken steps to undo some of President Trump’s most controversial policies including revoking the Muslim and African Travel Ban, taking steps to safeguard DACA, offering deportation relief for Liberians and Venezuelans, and ending the Trump administration’s “Remain in Mexico” policy. Likewise, the Senate is set to vote on the American Dream and Promise Act of 2021, a subset of the Biden administration’s proposed U.S. Citizenship Act of 2021, which could provide a path to citizenship for 2.5 million people.
However, the Biden administration has also failed to follow through on other campaign promises. The 100-day moratorium on deportations has all but fallen flat after federal judges and states attorneys general have challenged the policy. President Biden has also continued to use Title 42, an obscure public health policy enacted by the Trump administration, to deport asylum seekers without allowing them the chance to apply for asylum. Coupled with messaging from the head of the Department of Homeland Security, Alejandro Mayorkas, that “the border is closed,” the administration is closing in on its first hundred days with a messy immigration record at best.
Even amidst calls to defund the police and abolish ICE, the Biden administration remains committed to increased funding for both organizations. In a fact sheet summarizing President Biden’s vision for immigration reform he champions a call to supplement “existing border resources with technology and infrastructure.” This call for additional funding would “enhance the ability to process asylum seekers” and “manage and secure the southern border between ports of entry that focuses on flexible solutions and technologies that expand the ability to detect illicit activity.”
The idea of a “smart wall” has garnered bipartisan support over the past several decades as the southern border has become more policed and militarized. In 2011, the Obama administration cancelled the SBInet system, a high-tech network of towers, cameras, ground sensors, and motion-detecting radar that swallowed up $3.7 billion in taxpayer money with the hopes of providing Border Patrol with “complete situational awareness” along the southern border. The SBInet version of the “smart wall” was deemed a technological failure with a massive human toll as migrants took more inhospitable routes into the United States to avoid detection and were at increased risk of death and injury.
President Biden’s smart wall would follow similar footsteps by relying on biometric data, artificial intelligence, facial recognition, aerial drones, infrared cameras, motion sensors and radar. Tech companies have flocked to participate in the border-industrial complex. Familiar defense contractor players like Boeing, Lockheed Martin, and Raytheon are joined by Silicon Valley upstarts like Anduril and Palantir (both named after Lord of the Ring artifacts). Echodyne is a Bill Gates backed startup working on radar for CBP. Elbit Systems, an Israeli defense contractor, cut its teeth by building a smart fence between Jerusalem and the West Bank and has already built dozens of towers, sensors, and cameras in Arizona. As more federal funds are diverted towards surveillance technologies, private companies will surge to fill the need. Anduril has even been designated a “program of record,” suggesting the company will become essential in the Homeland Security budget as its five-year agreement with CBP continues.
Experts have already begun to sound the civil liberties alarms too, worrying that the technology that is currently being used to track, detain, and e-carcerate migrants will expand throughout and beyond the 100 mile “border zone” where CBP and ICE operate. The border zone is designated as anywhere within 100 miles of a border and encompasses major cities like New York, Chicago, and Philadelphia as well as the entirety of Michigan and Florida. Here, border agents’ power to enter private property, set up checkpoints, and detain suspected individuals have drawn comparisons to a “Constitution-free zone” where agents can operate with impunity using dragnet surveillance operations.
The growth of CBP and ICE’s technology budget comes amid growing concerns of the present and future intentions of the agencies. According to reporting done by The Nation, a CBP officer speaking under anonymity has warned that the agency is “expanding its capabilities and training its armed personnel to act as a federal police.” These capabilities were seen in action during the Black Lives Matter uprisings of 2020 as CBP agents joined other federal forces in efforts to quell unrest. That same summer CBP flew an unarmed Predator surveillance drone over Minneapolis.
E-CARCERATION AND YOU
The way our immigration system has grown over the past two decades has given roots to problems that are synonymous with immigrating to the United States. Immigrants experiencing long-term detention develop PTSD, experience sexual assault, and contract diseases that are left untreated. Private companies have risen to the challenge by offering digital solutions to ease the problems that are intrinsic to our system of immigration. Ankle monitors replace steel cages, cameras and radar supplant fences and walls, patrol cars cede the skies to Predator drones, and human eyes take a backseat to artificial intelligence. It is tempting to view technological solutions to the challenges that our immigration system creates as innately more compassionate, humane, and fair than detention and physical barriers, but more often than not they mask the horrors immigrants face behind a silicon-gilded veneer of circuit boards and WiFi.
Libre by Nexus rose to fill a demand for relief cultivated by our overcrowded, inhumane, and backlogged detention system. Libre offers immigrants languishing in detention centers an electronic shackle masked as a lightweight GPS-enabled ankle monitor. While immigrant families dug themselves further into poverty to pay for their loved ones’ freedom, Libre continued to weigh them down with exorbitant fees, shady business tactics, and threats of re-detention in the name of profit. A company like Libre can only exist in a world where those seeking asylum are subjected to lengthy and cruel imprisonments.
The United States has continuously invested in ATDs that prioritize private profits over community support. Immigration effectiveness is measured by deportations executed rather than asylums granted. Affordable community-based case management alternatives to detention have been cancelled in favor of intrusive technology offered at rock-bottom prices. Even though Libre by Nexus is currently facing a federal lawsuit for defrauding immigrants, they are but one tendril of the growing border-industrial complex. The surveillance technologies being developed at the border threaten to swell beyond ports of entry and isolated deserts and into the major cities and backyards of everyone in this country, whether they’re a citizen or not.
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