ICE Manipulates the Appropriations Process to Increase Mass Incarceration of Immigrants

September 3, 2019 – The Department of Homeland Security (DHS) recently notified Congress of its intent to pull $271 million dollars from FEMA, the Coast Guard, and TSA for Immigration and Customs Enforcement (ICE).

DHS will use this money to increase immigration detention capacity and construct tent courthouses along the Texas border. The department is going through with this reallocation of funds despite Congress’ objections and ICE’s dismal record of caring for people already held in its custody.

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This reallocation was made under the government funding bill that President Trump signed into law in January 2019, ending the longest government shutdown in U.S. history.

When that bill passed, ICE was holding approximately 49,000 people in detention centers across the country. That was a record at the time. Appropriators in Congress explicitly instructed DHS to decrease detention levels to an average of 40,500 by the end of the fiscal year.

ICE successfully ignored the will of Congress, however, as the agency was reportedly holding an all-time high of 52,398 people in custody as of May. The agency is now projecting an average detainee population of 49,661 by the end of the fiscal year.

DHS claims that the additional $271 million is necessary to deal with a rise in single adults crossing the southern border. The department is making this claim despite the fact that their own numbers indicate a significant decline in apprehensions across all demographics over the past five months.

This is not the first time the administration has pulled funds from various parts of the federal government in pursuit of its immigration enforcement priorities. President Trump declared a national emergency earlier this year to reallocate over $6 billion from the Departments of Defense and Treasury to pay for a border wall.

DHS similarly reprogrammed $200 million in 2018.

This year, the reprogrammed funds will be pulled from several agencies within DHS, including FEMA, the Coast Guard, and TSA. $116 million will be reprogrammed to pay for ICE enforcement activities, including the addition of 9,000 detention beds across the country.

ICE is therefore continuing to increase its detention capacity at a time when numerous investigations by government and non-governmental organizations have made it clear that the agency is incapable of properly caring for people in its custody.

The administration has repeatedly claimed that detention is necessary to ensure that people appear for their hearings, but the reality is that immigrants and their families appear in court in high numbers. Meaningful alternatives to detention that allow people to navigate our immigration system in less punitive settings, while also ensuring that they appear in court, exist and should be used more broadly.

DHS will also pull $155 million from the FEMA Disaster Relief Fund for the creation of temporary tent courts for people who were subjected to the “Remain in Mexico” policy, officially named the Migrant Protection Protocols. This program requires asylum seekers who arrive at the southern border to await their immigration court hearings in Mexico. Immigration judges from other parts of the country will soon begin to issue decisions in hundreds of asylum cases per day in these courts by video, raising serious due process concerns.

It is also unclear how DHS can legally allocate money for the creation of these facilities given that immigration courts are part of the Department of Justice.

Congress will soon have an opportunity to revisit this issue as it debates DHS funding for FY 2020. Legislators should consider implementing a cap on immigration detention in order to prevent ICE’s manipulation of the appropriations process in the future.

www.ImmigrationImpact.com is a project of the American Immigration Council.