Originally Published in The Washington Post.
A bunk bed and desks inside a cell is seen at the Caroline Detention Facility in Bowling Green, Va., in August. A former regional jail, the facility has been contracted by Immigration and Customs Enforcement to house undocumented adult immigrant detainees. (Saul Loeb/AFP/Getty Images)
By Nick Miroff
February 12, 2019
Democrats opposing President Trump’s push for a border wall used this week’s budget negotiations to launch an attempt to rein in his administration’s deportation efforts, proposing to reduce the number of detention beds available for immigration arrests inside the United States.
Though the congressional deal struck late Monday omits a strict new cap Democrats had sought for immigrants detained within the United States — as opposed to at the border — it returns funding levels for detention beds maintained by the U.S. Immigration and Customs Enforcement agency to 2018 levels. Lawmakers backing the proposal, amid calls by some Democrats to “abolish” U.S. Immigration and Customs Enforcement, said they hoped a bed limit would force the agency to refocus its attention on violent criminals while backing off immigrants who lack legal status but have not committed serious offenses.
Before the deal scrapped the proposal, Trump administration officials had denounced the idea, saying a reduction in detention beds would hamstring ICE and force the release of thousands of criminals. Matthew Albence, ICE’s deputy director, said he had never seen a proposal for such a cap during his 24-year career.
“It would be extremely damaging to public safety,” Albence said.
But the Democrats’ maneuver was not entirely unprecedented: It takes a little-known funding mechanism long-wielded by border hawks and tries to turn it against them.
Proponents of a more-rigorous approach to immigration enforcement have for more than a decade treated detention bed funding as a way to ensure a minimum number of immigration arrests. By tying funding levels to a specific number of beds — 40,500 per day last year — appropriators were able to establish an informal quota for enforcement activity. Unofficially known as the “bed mandate,” Republican lawmakers typically pushed for as many beds as possible and encouraged ICE officials to fill them with potential deportees.
In their clash with the president over border wall funding, Democrats were working to use the bed number as a ceiling rather than a floor — and a way to put a brake on Trump’s plans to deport “millions.”
The Democrats’ proposal aimed to cap the number of detention beds available for interior enforcement at 16,500 per day. Democrats also wanted to reduce the overall number of available beds to 35,400, far below the 52,000 that the Trump administration has requested.
“ICE has been overspending and overjailing,” said Kerri Talbot, an advocate with Immigration Hub, a group that is backing the Democrats’ proposal. “Democrats want controls on ICE because ICE is out of control.”
President Barack Obama came under criticism during his first term from many Democrats and immigrant advocates when annual deportations reached levels that far exceed current totals. By his second term, ICE had developed a more tailored enforcement approach that targeted serious and violent offenders but gave greater latitude to immigrants who were otherwise law-abiding.
After Trump took office, ICE officials praised him for “taking the shackles off” and giving agents greater discretion to make arrests. Criminal violators remain the agency’s priority, ICE officials say, but they also have sparked a backlash with arrests of immigrants with deep community ties, American children and well-established lives in the United States.
ICE arrests increased 11 percent last year, and the agency carried out 14 percent more deportations. But enforcement efforts have fallen far short of Trump’s post-election promise to immediately remove 2 million to 3 million immigrants living in the United States illegally.
At a time when record numbers of Central American families have been showing up at the border, the number of people held in ICE custody has soared to nearly 50,000 per day, far above the number of beds Congress has funded.
Albence told reporters Monday his agency has paid for the additional beds by making the best use of its resources, but noted that ICE has an obligation to enforce immigration laws. A cap on interior enforcement would ask ICE “to ignore the very laws that Congress has already passed,” he said.
“We cannot have a system whereby immigration enforcement is only effectuated against individuals once they commit a subsequent crime to their immigration violation,” he said. “If they know there is no enforcement arm within the interior of the United States that is out there looking for them, you will continually have that pull factor and you will never secure the border.”
GOP aides said after Monday’s deal was reached that ICE would have enough money and flexibility to maintain its current detention levels and add more when needed.
In 2013, a guard escorts an immigrant detainee at the Adelanto Detention Facility in California. (John Moore/Getty Images)
Albence held a White House conference call hours after senior Trump adviser Stephen Miller had a separate call with the president’s surrogates and supporters, telling them the Democrats “want illegals released” and “won’t fund ICE officers,” according to a person who listened to the briefing.
ICE relies on a network of government-run and privately operated detention centers to hold immigration violators in custody while awaiting deportation or a court hearing.
Costs for those beds vary widely, and some county jails in rural areas have converted sections of their facilities into immigration detention centers by offering rock-bottom rates to the federal government.
The number of beds funded annually by Congress is based on the average daily cost for one detainee, so the agency can also hold more people in custody by using less-expensive facilities.
John Sandweg, who was acting director of ICE under President Obama and who held other senior positions at the agency, said the debate showed the necessity of devising more sophisticated ways to assess the flight risk of immigration violators that wouldn’t require locking them up.
Because the U.S. immigration court system prioritizes the cases of those held in custody over those who have been paroled, it can give lawmakers a misleading impression that the only way to ensure someone shows up in court is to keep them jailed.
“Detention is not the key to deportation,” said Sandweg, adding that immigration violators should be treated more like criminal defendants, with a greater range of cost-effective parole options.
But Albence said that such alternatives are ineffective. He said 72 percent of immigrants in ICE custody are subject to “mandatory detention” because of serious criminal records, a pending deportation order or some other administrative restriction on their ability to qualify for parole or GPS monitoring.
This article has been updated.
Josh Dawsey contributed to this report.