President Obama’s proposed budget for the 2015 fiscal year, unveiled on Tuesday, contains several indications of his administration’s immigration law priorities. Most remarkably, the administration would cut the number of immigration detention beds DHS maintains while expanding the immigration judge corps.
The proposed budget claims to “[f]ocus resources for immigration detention of mandatory and priority individuals, such as violent criminals and those who pose a threat to national security, while expanding less costly alternatives to detention programs” (p. 87). This is a variation of the administration’s oft-repeated claim to focus on the worst immigration law offenders.
Just as often, though, this claim is contradicted by the administration’s own statistics. In December, for example, DHS reported that 52.44% of the 477,523 people detained in FY 2012, the last year for which data have been released, had no criminal history (see my blog post about these data here). What’s more, available information suggests that those convicted of a crime aren’t dangerous and only a small number have committed a violent crime. According to DHS data obtained by Human Rights First of immigration detainees held on May 2, 2011, ICE classified 19% as “high risk” detainees and a mere 11% had committed violent crimes. The rest were classified as low risk (41%) or medium risk (40%) (see my previous blog post about these data here). With a track record like this, it’s hard to trust the administration to actually focus on “violent criminals and those who pose a threat to national security,” assuming for now that that’s even a worthy goal.
The budget also announces a reduction in the number of beds DHS maintains from the current 34,000 to 30,539. At a reported cost of $116 per day per bed, DHS claims that shaving a few thousand beds from the detention estate would save the government approximately $185 million (p. 66). Fewer beds certainly makes sense given that most people filling them pose no danger, but it’s unclear why the administration thinks more than 30,000 beds are necessary. Neither the White House nor DHS provided an explanation.
Furthermore, though it’s commendable that the budget suggests expanding alternatives to detention (ATDs), such programs are not without complications. As I wrote last August,
Though ATD programs ought to be expanded as a way of decreasing the detention population, ICE’s use of ATD programs needs to be watched closely. The agency, it seems, could easily be tempted to use ATD programs for individuals who pose such little risk of flight or danger to the community that they do not merit detention. This could quickly become “a large-scale regime of ‘alternatives to release,’ rather than true ‘alternatives to detention,’” as Anil Kalhan warned. Anil Kalhan, Rethinking Immigration Detention, 110 Columbia Law Review Sidebar 42, 56 (2010). Indeed, a recent Miami Herald article reported that ICE sometimes moves people into ATD programs who would show up to their hearings without monitoring. Brenda Medina, Instead of Detention, Many Undocumented Immigrants Being Electronically Monitored, Miami Herald (June 7, 2013).
In a separate section, the President’s budget proposes “to add 35 new immigration judge teams, [and] expand the successful Legal Orientation Program” (p. 103). Both would be very welcomed. The immigration courts are drowning under an enormous backlog. It currently takes on average 573 days for a case to wind its way through the immigration court system. Adding 35 new IJ teams isn’t likely to erase the backlog, but any additional resources would be helpful. It’s unclear what constitutes an “immigration judge team,” but assuming that refers to support staff such as law clerks, this is an even better proposition. Right now there are reportedly about 3 immigration judges for every law clerk, and without question they could greatly benefit from the assistance of more new attorneys that tend to fill clerk positions.
Similarly, the Legal Orientation Program has been a wonderful innovation in immigration courts and deserves to be expanded. Funded by the Justice Department’s Executive Office for Immigration Review, the agency that houses the immigration courts, the LOP gives immigration detainees information about immigration law, including relief from removal. In a report by the Vera Institute for Justice, participants in the LOP who were in detention had their cases completed substantially faster than non-participants (p. 48). In addition, LOP participants are less likely to fail to appear for an immigration court date than non-participants (p. 56).
Overall, the proposed budget represents an improvement over the status quo. Of course, that’s largely because immigration law enforcement has been on overdrive for many years while the immigration court system has been equally underresourced.
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