Anti-border activists in Congress and the executive branch are working hard to make detention of illegal aliens difficult or impossible though burdensome audits designed to discourage local jails from cooperating with U.S. Immigration and Customs Enforcement (ICE). The latest impacts of these policies will threaten the public safety of people living in Utah, Nebraska, and Nevada.
ICE’s detention standards are quite detailed, yet the agency has been the focus of multiple lawsuits by numerous anti-enforcement groups. ICE has responded by making the detention standards ever-more demanding in every instance. While it is understandable that the standards in detention would be different than standards in a jail — since detention is not punishment — the Biden administration is requiring that local jails used for a short-term basis also meet the more stringent standards. This is something that most jails cannot do, and as ICE makes the standards more and more demanding, it’s entirely likely that more and more jails will no longer cooperate with ICE. The last things sheriffs need is half-baked narratives about how they’re allegedly treating illegal aliens poorly by not perfectly meeting overdemanding federal detention standards.
As part of the detention process, all ICE detention space is subject to audits. These audits are conducted by multiple offices: ICE’s Office of Detention Oversight (ODO), the DHS Office of Inspector General, DHS’s Civil Rights and Civil Liberties Office (CRCL), and DHS’s new Office of the Immigration Detention Ombudsman (OIDO). These offices do not coordinate their visits and, as a result, inundate detention facilities, including the jail space of sheriffs rented by ICE, with endless audits and inspections. And now there’s talk of getting the U.S. Environmental Protection Agency (EPA) and the Department of Labor’s Occupational Safety and Health Administration (OSHA) to start conducting their own audits of ICE detention.
Add to this that U.S. Marshals often rent the same jail space from local law enforcement at a higher price and with less demanding standards, and it’s no surprise that jails are choosing to work with the Marshals instead of ICE.
The troubling trend is decreasing cooperation with ICE on the state and local level on matters of detention. If there is any hope of removing illegal aliens from the country, Congress must immediately address a subversive effort designed to undermine detention and ICE’s mission. This will require Congress to consider doing a few things:
- Defund and eliminate the newly formed and redundant Office of Immigration Detention Ombudsman (OIDO)
- Require audits of ICE detention space to be coordinated and limited to no more than one audit every 18 months
State legislators should also consider writing letters to Congress requesting these changes, before more criminal aliens are released into their cities.
Over Two-Thirds of Illegal Aliens Are Being Released in Utah. Legislators from Utah recently erupted over an internal letter written by a U.S. Immigration and Customs Enforcement (ICE) Field Office Director (FOD) for the Salt Lake City office, in which the FOD designated Utah a sanctuary state. In the letter, the FOD explained to his superiors at ICE headquarters that his officers were encountering serious restrictions on their ability to carry out federal law in Utah due to “terminations of intergovernmental service agreements with ICE by the Utah County Sheriff’s Office in August 2016, Cache County Sheriff’s Office in November 2022, and the Washington County Sheriff’s Office on May 31, 2023”.
These types of agreements allow ICE to temporarily house illegal aliens at sheriff’s offices, which are usually more closely located to the areas where aliens are arrested. Without this relationship with sheriffs, ICE must either transport aliens to the nearest ICE detention facility — which may be a four-hour drive away — or release the aliens back into the community, which happens more often than not due to limited resources at ICE; there are only so many vans and officers. ICE frequently drives aliens to detention space in Nevada or Montana, but the space is also used by CBP and the U.S. Marshals, so it's not always available.
Here’s how the ICE FOD explained it in the letter:
In fiscal year 2023 (October 1, 2022 – April 30, 2023), the Salt Lake City Field Office arrested 4,216 foreign nationals of which only 33%, or 1,396, were detained by ICE, the other 67% were released from ICE custody. Non-detention policies stemming from local sheriffs’ offices directly resulted in the exceptional number of foreign nationals released back into the community to reside alongside Utah residents.
This percentage is abysmal, and the real numbers are only expected to get worse with the Biden administration’s ongoing mass illegal immigration agenda. The FOD also explained that more illegal aliens have been relocating to Utah since it is now viewed as a sanctuary state:
[The lack of bed space is] providing a pull-factor from the border to the region as foreign nationals have provided intelligence to staff advising that word of mouth amongst migrants is that Utah is a location where they will likely not be deported. The field office is also observing migrants who recently crossed the border are relocating from sanctuary states like New York and Illinois to Utah due to the lessened risk for deportation.
But because ICE’s movement of illegal aliens is quite dynamic, the lack of bed space in Utah is also having an immediate effect on other states, as the FOD explained:
Additionally, the bed terminations have also directly de-stabilized ICE’s law enforcement capability in the States of Idaho and Montana as Utah-based bed space provided a central location for detainee transfers for those arrested by ICE and the Border Patrol on the northern border. Additionally, due process for foreign nationals has been degraded as those in immigration proceedings no longer [have] direct access to Immigration Judges based in Utah who are responsible for hearings in Idaho, Montana, and Utah in an expedited detained setting. All hearings are now conducted in a non-detained setting, increasing hearing wait times from one to three months, in a detained setting, to two to five years due to lack of bed space for detained hearings.
Utah Cites Burdensome Audits for Ending Cooperation. According to Utah officials, their decision to pull out of cooperative jail agreements is the result of burdensome audits of their jails by DHS staff. Utah’s state senate and house leadership wrote in a memorandum, among other things:
We certainly want to work constructively with our federal partners, but when ICE requirements become too onerous, Utah’s sheriffs are completely justified in declining to sign agreements with ICE.
The federal government’s failed policies and inability to protect our country’s border is causing upheaval and strain on states across the nation, including Utah. States are being forced to deal with the public safety, financial and humanitarian consequences of the federal government’s ongoing failure to reform immigration policies.
The Utah Sheriffs’ Association explained the problem further in its own statement:
Throughout the years the Utah sheriffs who have held contracts with I.C.E. have been subjected to an unending list of federal “strings” that are attached. These include more than 700 pages of regulations that are not based upon constitutional rights or legal standards based on case law. Many of these absurd standards give special treatment and privileges to I.C.E. detainees that are far above and beyond what our own incarcerated citizens receive. The sheriffs who have tried to work with I.C.E. have been subjected to audits from liberal Washington DC based special interest groups. They have been threatened with lawsuits bringing undue liability upon the sheriffs and ultimately the tax paying citizens of Utah’s counties. I.C.E. policy and practice have made it simply impossible for Utah’s sheriffs to house I.C.E. detainees.
Utah County Sheriff Mike Smith told the Salt Lake Tribune that “the agreements, for instance, required separate entryways and housing for ICE detainees, as well as a different disciplinary system when such detainees break jail rules. He added that ICE pays less than a jail’s daily rate to house the federal detainees.” He explained that “those requirements aren’t feasible, and that when jails don’t follow those rules, they open themselves up to lawsuits and ‘special interest group’ scrutiny” making “such agreements undesirable”.
The burdensome detention policies have caused conflict both among Utah’s political leaders (e.g., the mayor of Riverton issued a statement demanding that state officials work with ICE to avoid being a sanctuary) and also between the state and ICE (e.g., the ICE FOD eventually rescinded the memo after demands from the statehouse). The Biden administration has remained silent through all of this, and none of the administration’s political appointees to ICE or DHS have made any effort to make detention within Utah any easier. For them, frustrating ICE’s mission and releasing criminal aliens into the country is the goal.
Nebraska Also Ending Cooperation with ICE Over Detention. A little over a week ago, news broke that Nebraska’s Hall County Department of Corrections will no longer house ICE detainees as of December 30 of this year. In an article titled, “Bureaucracy cited in cancellation of Hall County Jail's ICE contract”, it was reported that the county commission “voted unanimously to terminate the county's contract with ICE in response to the federal government’s requirements for the handling of ICE detainees”. The commission is okay with the change because the U.S. Marshals Service is happy to take the jail space and pay $105 a day for each inmate it houses, while ICE pays less and reportedly would not increase its rate unless the Department of Corrections put some increased standards in place. Like all local jails, Hall County Department of Corrections is already required to comply with Nebraska’s jail standards, and that makes a transition to housing the Marshals’ inmates much easier.
According to Todd Bahensky, director of Hall County Department of Corrections, ICE is tightening up and changing its standards “and then adding requirements on to it”. He continued, “They’re asking for us to put a lot of time and effort and money into it to be able to meet these requirements, and it’s just not worth it for us.”
Bahensky explained, “They just come in and they look at our standard operating procedures, look at the way we handle our paperwork and all that kind of stuff and make sure we meet their guidelines — their standards.” He noted that ICE expects the jail to do things “that are kind of above and beyond” what a county facility typically does such as guaranteeing the detainees have additional access to phones.
Between the audits and the constantly expanding detention standards, the procedures required by ICE have become burdensome enough that it’s “just come to the point where it’s really difficult for us to keep up with it”, said Bahensky.
However, my colleague Ronald Mortensen published a blog post on this same topic explaining how Utah politicians are not necessarily innocent bystanders in all of this. The state has promoted amnesty for illegal aliens for a number of years now; it’s giving illegal aliens driver’s licenses; it has reduced penalties for certain crimes down from a felony to 364 days in order to help criminal aliens avoid deportation; it has weakened the state’s E-Verify law; and is providing in-state tuition breaks to illegal aliens -- just to name a few examples. The point is that ICE can benefit from state cooperation, but that cooperation can be unreliable. ICE still needs enough of its own resources to be able to run efficiently.
Nevada Sheriff Ended 287(g) Partnership with ICE Over Excessive Audits. Earlier this year, the Nye County Sheriff’s Office ended its 287(g) partnership with ICE, leaving the state of Nevada without any 287(g) program whatsoever. The 287(g) program is an important cooperation program in which sheriffs enter into agreements with ICE to receive training so that local law enforcement can identify criminal aliens in its custody. The Trump administration significantly expanded the number of 287(g) agreements, resulting in more identification of criminal aliens who are first encountered by local law enforcement.
I spoke with the Nye County Sheriff’s Office and ICE officials to figure out what happened, and it turns out there is a direct connection to the Utah situation discussed earlier. Simply put, the Nye County Sheriff’s Office was tired of the excessive audits coming out of DHS. The sheriff still supports ICE’s mission and is cooperating with ICE in a detention capacity, but the decision was made between the sheriff and ICE to keep their detention cooperation and eliminate the 287(g) partnership, thereby sparing the sheriff from some of the constant audits. Like all federal programs, the 287(g) program comes with some oversight and audits. But between losing the 287(g) agreement and losing the Nye County jail space used by ICE, it was more important for ICE to keep the jail space because it is needed for aliens arrested in Utah.
Put differently, due to excessive audits, ICE has lost detention space in Utah and must transport aliens to Nevada, but the agency also had to see the canceling of the Nye County 287(g) agreement as a means to limit the sheriff’s frustration with audits and maintain the jail space in Nevada. It’s a ridiculous amount of negotiation and coordination that ICE must go through to simply carry out its mission. Congress needs to make things much easier for ICE.
There’s also a concern that the few remaining jails in Nevada that ICE relies on are considering ending their relationship with ICE as well, citing too many audits, protestors, and phony news articles.
What Can Be Done. An effort aimed at frustrating ICE’s ability to detain illegal aliens has been underway for years, and the parties involved include Congress, activist groups, judges, and now Biden administration political appointees to ICE. This effort to undermine ICE detention is extremely destructive and cannot be allowed to continue. Congress must step in and help ICE in carrying out the enforcement of the nation’s immigration laws.
For starters, Congress must fund an increase in ICE detention space so that ICE officers aren’t required to drive hours to relocate a detainee. As explained above, it’s common for ICE officers in Utah to transport aliens arrested in that state to available detention space in Nevada. This is time that the officers should be spending locating and arresting illegal aliens. It’s certainly not an efficient use of taxpayer dollars. And, as noted earlier, because only so many aliens can be transported at any given time, ICE field offices routinely have no choice but to release illegal aliens back into the community.
In the next DHS funding bill, Congress can direct DHS to limit audits of jails cooperating with ICE to no more than once every 18 months (at the most). It is important to remember that these jails are already subjected to oversight and audits by their own county and state auditors, and ICE should honor those reports instead of ignoring them and requiring additional audits.
As part of this effort to stop incessant audits, Congress would have to require all auditing units within ICE and DHS to coordinate their visits and conduct their audits concurrently. Audits of ICE detention space are conducted by ICE’s own detention oversight staff, but also by DHS’s Civil Rights and Civil Liberties (CRCL) office, the DHS Inspector General’s office, and by the new (and redundant) Office of the Immigration Detention Ombudsman (OIDO) created by Congress just a few years ago. It’s not enough to require a limited number of audits by each of these bodies; they must be required to visit at the same time so that jails and detention facilities aren’t inundated with audits from different offices every few months.
Congress should also consider eliminating the OIDO office altogether, as it is a costly redundancy. Despite not showing any value, it has exploded in size without justification. In 2020, there were four government staffers running OIDO. But the office quickly expanded, as the OIDO director explained in his annual report, noting that “by the end of 2022, we had grown to 60 Federal personnel, along with dozens of contractors supporting our mission.” How has ICE detention benefitted from this? The new office is part of DHS and is supposed to advance DHS’s mission, but it operates more as an opponent of ICE’s mission — a role already filled by CRCL (which should also be championing ICE’s mission, but is not). Internally, there is conflict between CRCL and OIDO about which office has priorities over which parts of immigration enforcement; even those offices know that Congress created a redundancy when it launched OIDO.
OIDO explains it “is committed to providing a persistent presence in immigration detention facilities nationwide, and accordingly, we expanded our regions to empower teams in the field to conduct more frequent and regular visits” to detention facilities. Well, ICE officers already have a persistent presence in detention facilities, and detainees have regular contact and constant opportunity to voice complaints that are almost always quickly resolved. OIDO exists as yet another avenue for complaint gathering, despite the fact that detainees already have about a half-dozen ways to file complaints. It turns out that most of these complaints are not legitimate, and ICE jumps to resolve them quickly. There’s no need for “persistent presence” by a new office unless the goal is to frustrate ICE’s mission and encourage jails to stop working with ICE.
Assuming that Congress fails to address any of this, one option for a future administration that cares about ICE’s mission and government efficiency is for the DHS secretary to direct that all complaints from detainees be directed to one office, perhaps to OIDO, and remove CRCL and ICE from their current oversight responsibilities. It makes no sense to offer detainees multiple phone numbers and e-mail addresses to lodge the same complaint, as is currently the case. ICE officers will always be immediately available in ICE detention facilities, so most small concerns will naturally be addressed up-front, without the need for involvement from a higher level.
Bottom line, ICE is unable to take custody of many aliens arrested by local law enforcement due to a lack of detention space and because ICE officers are spending too much time transporting other illegal aliens to distant detention beds. ICE will continue to lose detention space rented from local jails as DHS audits grow more out of hand. The release of illegal aliens is the goal of the anti-enforcement crowd, and Congress must step in if it wishes to protect public safety and ICE’s mission.