DHS announced implementation of the FERM program in May 2023. Under FERM, ICE places heads of households of asylum-seeking families detained by U.S. Customs and Border Protection at the U.S.-Mexico border under surveillance with ankle monitors. ICE also places heads of households under curfew. The alternative to detention program only applies to certain nationalities and is active only in certain cities throughout the country.
ICE has said that the FERM program ensures families show up at credible fear interviews, which serve as asylum screening interviews, but advocates have seen that families enrolled in the program face rapid removals. Complaints suggest that families enrolled in the FERM program often lack legal representation during their credible fear interviews. If the families fail the credible fear interview, ICE moves to remove them without the opportunity of ever seeing an immigration judge to assess their claims.
Since its inception, ICE has continued to expand the FERM program. Initially, ICE announced that the FERM program would be active in four cities. As of December 2023, the program was active in 45 cities nation-wide.
On November 21, 2023, the Council and the American Immigration Lawyers Association filed requests under FOIA with ICE and CBP to find out more about the program. The requests sought more specific information on the criteria the agencies use to enroll families in the FERM program, including the list of nationalities who may be subject to FERM and the cities where it operates. The organizations also requested the information given to families about the program including information about access to legal representation. The requests also asked the agencies to produce demographic data on the families placed in FERM.
Neither ICE nor CBP responded to the request, and the Council filed this lawsuit to compel disclosure. The lawsuit was filed on April 5 in the U.S. District Court for the District of Columbia.
