The electronic monitoring of noncitizens by immigration authorities amounts to a form of detention that imposes a "considerable human toll" on immigrants and their families and may even violate constitutional guarantees of due process, according to a report commissioned by the American Bar Association that was released Friday.

The report by the ABA Commission on Immigration says agencies under the purview of the U.S. Department of Homeland Security routinely force undocumented immigrants to wear ankle monitors or install cellphone applications that constantly track their movements, even in cases where the use of such devices is not justified.

"Most migrants present neither a flight risk nor a danger to the community to justify either detention or electronic monitoring," says the report, compiled by students and faculty members of the immigration clinic at the University of Texas School of Law. "As employed, electronic monitoring of migrants is punitive in nature because it is imposed without objective assessment of either need or risk in a one-size-fits-all approach."

As an alternative to placing noncitizens in detention, authorities place them in electronic monitoring programs, which are run by government contractors, for the duration of their immigration proceedings. Noncitizens may be monitored at any time from the moment they reach the U.S. border until they are deported or achieve final permanent status in the United States.

Migrants are forced to wear ankle monitors, which sometimes are strapped too tightly to their legs, causing swelling and pain. Other times, they are instructed to install an application on their phone called SmartLINK, which directs them to take and submit photos of themselves, or to call or message immigration agents, at random times of the day and night.

Hundreds of thousands of people, many of them seeking asylum, are subject to monitoring on any given day, the immigration clinic's co-director, Denise L. Gilman, who supervised the production of the report, told Law360. As of December 2023, ICE was electronically monitoring more than 190,000 migrants, according to the report.

"There has been a huge scale up of the use of electronic monitoring on migrants," Gilman said. "It's a really significant group of people being affected and a huge cost to the U.S. government, which means to the U.S. taxpayer."

The report found that, although it has been described by the U.S. government as a more humane alternative to locking up migrants in detention centers, which are often crowded, unsanitary and unsafe, electronic monitoring is "punitive in nature" and presents severe limitations on the freedom of movement and privacy of people who are subjected to it.

"It really is just another form of detention. And it's being used on migrants who really don't need to be either detained or monitored," Gilman said.

According to data compiled by the U.S. Immigration and Customs Enforcement, nearly 195,000 noncitizens were in alternative-to-detention programs as of Sept. 30, 2023. The vast majority of them, over 173,000, were monitored through the SmartLINK application, while over 12,000 were wearing ankle monitors. The daily cost of monitoring the noncitizens totaled more than $200,000.

The daily cost per electronic monitoring participant is less than $8. The cost of detention, meanwhile, is approximately $150 per day, according to the agency.

Miguel Alvarez, a spokesperson for ICE, said in an email that the agency uses electronic monitoring technology and case management to ensure noncitizens comply with release conditions, court hearings and final orders of removal.

"ATD effectively increases court appearance rates, compliance with release conditions, and helps the participants meet their basic needs and understand their immigration obligations," Alvarez said. "Those who are released from custody and enrolled in ATD must comply with the terms and conditions of their release, including appearances at all scheduled court hearings and compliance with ATD requirements. Depending on the circumstances of the case, failure to comply may result in an immigration judge issuing a final order in absentia and may render a noncitizen a priority for arrest and removal by ICE."

The use of electronic monitoring for immigrants began in 2004 during the Bush administration, mostly to surveil people who had been ordered deported after a criminal conviction.

The Vera Institute of Justice, a national nonprofit advocating for immigrants' rights and criminal justice reform, said in a report released last month that the number of adult noncitizens placed on electronic monitoring by ICE more than tripled between 2021 and 2022, reaching 360,000.

In 2023, ICE expanded the electronic monitoring program to apply to families of migrants seeking asylum. Under the program, each family's head of household is required to both wear an ankle monitor and use the SmartLINK application. According to the ABA commission report, the average amount of time spent under electronic monitoring was around 550 days, as of September 2023.

Participating in the alternative-to-detention program also requires noncitizens to comply with a curfew and remain in their residence from 11 p.m. to 5 a.m. every day. In addition to using the devices, the migrants might be required to periodically report to ICE agents.

"The combined impacts of these restrictions on liberty impose significant limitations on migrants' lives," the report says.

The use of ankle monitors has also shown to cause mental harm, according to a 2021 survey of migrants referenced in the report. According to that survey, about 88% of migrants subjected to electronic monitoring in New York City reported negative impacts on their mental health.

Wearing an ankle monitor also creates a stigma. People who wear them face additional hurdles finding employment or housing because of a perception linking electronic monitoring to criminals.

"Sometimes at the store or in the bus, [the ankle monitor] would make noises and people would stare at me and refuse to speak to me or tell me that only criminals or drunkards are monitored," a Salvadoran immigrant identified only as Rosie was reported saying in the report. "I couldn't sleep, I became depressed."

Meanwhile, Nelson, an immigrant from Colombia, said that having to use the SmartLINK app instilled in him a constant sense of fear.

"I was told to carry [my phone] with me at all times, even to the bathroom. As soon as I get a notification, I have to take a selfie. The app doesn't always work, and I often have to start over several times. It is very stressful because they also told me that I can get a prison sentence if I don't send the selfie in time," Nelson was reported saying in the report.

The government's main justification for tracking noncitizens is to ensure that they show up for hearings in immigration court.

Arguing that electronic monitoring isn't necessary, however, the ABA report references studies in recent years showing that migrants appear at high rates for their hearings, particularly when they have legal representation.

In particular, a report published in October 2020 by the Vera Institute of Justice, which runs legal representation programs in several jurisdictions across the country, found that 98% of its clients released from custody have continued to appear for their scheduled court hearings. Other in-depth studies found high rates of court appearance by migrants.

"The reality is that neither detention nor electronic surveillance are necessary to ensure that people appear for their immigration court hearings. The evidence shows that non-detained immigrants with legal representation nearly always come to court," Jacob Kang-Brown, a senior research fellow at Vera Institute of Justice, said in an email. "ICE's approach to electronic monitoring is putting too many people on these invasive devices."

For years, the ABA has opposed the detention of migrants except in limited circumstances where there is a threat to national security or to persons or where there is a "substantial" flight risk. The report found that the current use of electronic monitoring violates ABA policy.

"The use of electronic monitoring should be reevaluated and limited," the report says.

--Editing by Michael Watanabe.