Unlocking Liberty: A Way Forward for US Immigration - LIRS

Appendix D: Factors for Decision Tree
NGO Recommendations Regarding Factors to Consider
When Using the Custody Decision Tree in Appendix C
LIRS, together with a broad coalition of nongovernmental organizations working on detention
reform, compiled the following charts to organize various factors for consideration when making
determinations regarding the following:
• Is custody or detention necessary?
• If so, what is the appropriate level of custody or detention?
• When should other restrictions be placed on individuals’ liberty to mitigate flight risk or threat
to public safety?
• Which individuals present humanitarian considerations or “vulnerability triggers” that should
inform all three of the decision points above?
We recommend that the federal government create an evaluation instrument that
meets the goals and takes into account the factors outlined in the following table:
Instrument
Goals
Establish
individual’s
identity.
Identify
individuals
that ICE has
the authority
to detain,
according
to the INA,
who cannot
be released
because
they pose
an imminent
threat to
public safety.
Factors and Triggers with Comments
(These factors are explained more fully on page 58.)
Individual has government-issued identification.
Individual does not have government-issued ID but can get it.
Individual has a third-party sworn affidavit as to his or her identity, and the affiant has government-issued ID.
Individual has neither a government-issued ID nor an affidavit, but he or she has made credible
statements that do not raise doubts his or her identity.
Significant history of violent felony convictions
Frequency of violent offenses
Degree of offense and whether violence was involved
When conviction occurred, over ten year old conviction should not be considered.
Length of sentence served
Age when offense was committed
Gang affiliation
This raises concerns given that gang experts have concluded that accurately determining gang membership is
very difficult. Information in gang databases is often obsolete. The information documented in filed interview
cards, which is later entered into the gang database), can be inaccurate and is the result of field interviews with
patrol officers who have little or no experience with gangs. The unreliability of the information is exacerbated by
inadequate departmental oversight and quality control measures. Additionally, it is easy to misinterpret symbols
as gang-related when they are not. Experts have stressed that modern gangs make less use of symbols, including
gang names, clothing, and traditional initiation rites, than gangs of the past. Such misinterpretation can lead to
identifying individuals of specific ethnicities as gang members and mistakenly including them in gang databases.
NGO recommendations:
o ICE must offer clear guidance to those who enforce ICE regulations on defining “gang affiliation”
and determining whether a person is properly classified as a gang member.
o Any gang identification must require at least three independent sources of documentation that
indicate actual membership.
o Individuals must have the opportunity to provide mitigating evidence before gang identification can
be made.
o ICE must specify what information was relied upon to allege gang affiliation, e.g., body tattoos or
clothing; names of police officers who gave information; gang database information, including dates
and information when data was acquired.
A Publication of
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