The budget bill that President Trump signed last week continues the federal government’s long-term trend toward an expansive immigration prison regime. Tucked into the 1,169-page Consolidated Appropriations Act, 2019, are numerous provisions that ensure that the Departments of Homeland Security and Justice are equipped to lock up large numbers of people suspected of violating immigration law.
The most obvious beneficiary, the Immigration and Customs Enforcement division of DHS, comes out with almost $4.3 billion to pay for its enforcement and removal operations. Division A, Department of Homeland Security Appropriations Act, 2019, Title II, Security, Enforcement, and Investigations, page 8. ERO’s responsibility includes operating ICE’s sprawling detention system. Congress also noted that ICE ERO’s budget includes costs related to transporting unaccompanied minors. On top of this money, ICE received $45 million “for procurement, construction, and improvements” to facilities—that is, contracting for or preparing facilities for its use. Id. at 9. Should these pools prove insufficient, DHS “may reprogram within and transfer funds to [ICE operations]…as necessary to ensure the detention of aliens prioritized for removal.” Id. at 19 § 208.
To be sure, the bill does limit ICE’s detention powers in some ways. Pushing back against a Trump administration practice of entrapping people who step forward to care for children who arrive in the United States alone, Congress prohibited DHS from detaining, removing, or initiating removal proceedings against the sponsor or potential sponsor of an unaccompanied minor “based on information shared by the Secretary of Health and Human Services.” Id. at 24, § 224. It did, however, include many exceptions for various types of criminal histories. Folks who have been convicted of or merely been charged with several types of felonies can be turned over to ICE if they try to take custody of a child or other minor relative.
Importantly, the bill includes a valuable reporting requirement. Within 90 days and weekly thereafter, ICE must post on a public website data about its detention population. Id. at 30, § 226. This must include year-to-date average daily population, daily population counts, and average length of stays. The reported data must also identify how many detainees have passed the credible fear review, the first step in the asylum request process. It must list the number of single adults and members of family units detained. The agency must also report the number of people enrolled in an alternative to detention program as well as the average length of participation. For researchers and journalists, this is a welcome development. I’ve had a FOIA request for monthly population counts pending since March 2018!
As it has previously, Congress bars contractors from continuing to operate a particular detention center if a site receives less than “adequate” marks in two consecutive performance evaluations. Id. at § 210. This sounds like it has a bite, but in reality doesn’t because DHS has a poor record of supporting its evaluations process. As I wrote before, “During the eight-year period spanning October 1, 2010 to August 1, 2018, internal and external auditors hired by ICE raised almost 7,000 instances of policy violations.” But since ICE audits infrequently and doesn’t follow-up, as the DHS Inspector General reported in 2018, this number is probably too low.
While ICE gets the biggest share of immigration prison funding, it’s not alone. Customs and Border Protection gets over $270 million “for construction and facility improvements” including “$33,447,000 for Border Patrol station facility improvements.” Division A, Department of Homeland Security Appropriations Act, 2019, Title II, Security, Enforcement, and Investigations, at page 33, § 230.
Meanwhile, the U.S. Marshals Service, part of the Justice Department, gets $1,532,397,000 for “necessary expenses related to United States prisoners in the custody of the” agency. Division C, Title II, Department of Justice, page 33. Most USMS prisoners are people charged with immigration crimes.
Finally, state prisons and county jails stand to receive funding too. The State Criminal Alien Assistance Program, a program through which the federal government reimburses local governments for incarcerating certain migrants, got a budget of $243,500,000. Id. at 51.