Immigration in the 2015 Homeland Security Appropriations Bill

By Dan Cadman, January 13, 2015

(This is the second item analyzing the 2105 Homeland Security funding bill; the first item examined the proposed amendments.)

The new Congress, with a Republican majority in both the Senate and the House of Representatives, is wasting no time in tackling that still-hanging issue left over from the prior Congress: funding for the Department of Homeland Security (DHS) in 2015. Although the rest of the federal government received its funding through the end of the fiscal year via appropriations in the last Congress, DHS was left in limbo with only a continuing resolution to keep it solvent through February because of the president's multiple unconstitutional intrusions into the legislative arena through his "executive actions" granting the effective equivalent of amnesty to millions of illegal aliens. This is a brief look at some of the highlights of those portions of the DHS appropriations bill, H.R. 240, pending in the House that relate to the immigration benefits and enforcement functions of the Department.

First things first: those examining the bill to see if it defunds the president's directives so as to render it impossible for the bureaucracy to implement executive action on immigration won't find anything of the sort in the bill. It is, instead, much more prosaic and numbers and figures-oriented. For their own reasons, House leaders decided to segment the controversial language to defund executive action into a number of amendments to the bill. If one were of a somewhat cynical disposition, one might consider that a stratagem that permits the amendments to be quietly strangled in the back rooms of various committees and subcommittees, leaving the unencumbered bill to sweep through on a voice vote. Certainly that kind of ploy has a Boehnerian look and feel to it, the speaker's tepid indifference to enforcement of the immigration laws being the known quantity that it now is.

Second, accompanying the bill is an Explanatory Statement (ES), submitted by Rep. Hal Rogers (R-Ky.), which contains this obtuse introductory paragraph:

The following is an explanation of the effects of this Act, which makes appropriations for the Department of Homeland Security for fiscal year 2015. Unless otherwise noted, references to the House and Senate reports are to House Report 113-481 and Senate Report 113-198, respectively. The language and allocations contained in the House and Senate reports warrant full compliance and carry the same weight as language included in this explanatory statement, unless specifically addressed to the contrary in the bill or this explanatory statement. While repeating some language from the House or Senate report for emphasis, this explanatory statement does not intend to negate the language referred to above unless expressly provided herein.

This is not a model of language clarity. Again, if one were of a cynical disposition, one might conclude that the opaque references and redundancies are the legislative nuances of a seasoned politician aiming to do something while hiding it from immediate comprehension. But it's hard to know for certain what's going on because it is so obtuse.

Yet despite the unpromising beginning, to understand fully what is represented by the bland presentation of the bill, the ES is the place to look. Here's what we find. (Each item is referenced with a page number of the ES where the beginning of the section is to be found.)

Title I, Office of the Secretary and Executive Management. (p. 3) The bill provides $4 million more than the budget estimate submitted, up to $132.5 million. In fact, monies for the immediate office of the secretary are doubled. This is a singularly ineffectual way for Congress to express its displeasure to a cabinet officer who has been so instrumental in the president's usurpation of the legislature's authority, and it stands in stark contrast to other portions of the bill. Compare, for example, the "Professionalism in the Workforce" section of Secret Service funding, which withholds $10 million from their Headquarters, Management, and Administration "until the Secret Service submits to the Committees ... a report providing evidence that the Secret Service has sufficiently reviewed its professional standards of conduct." (p. 41) Compare, also, the bill's treatment of the National Protection and Programs Directorate (NPPD): "NPPD's excessive use of administratively uncontrollable overtime (AUO) was inappropriate. As a result, the President's budget request for Infrastructure Security Compliance has been reduced. NPPD shall brief the Committees on implementation of its new overtime policies and on overtime year-to-date and anticipated expenditures, not later than May 1, 2015." (p. 46)

Unaccompanied Alien Children (UAC). (p. 4) Asserts that the president's budget submission failed to request funding to handle the arrival of children and families at the border, and "rectifies" the mistake by appropriating more than a half billion dollars to deter and interdict the migrants, transport and care for them, and facilitate their movement through removal proceedings. What the bill does not seem to do is provide for any oversight to ensure that the migrants are actually expeditiously placed into proceedings, or that the proceedings are ever concluded. Yet the House cannot be unaware of the fact that, to date, the administration's track record on this score is abysmal. (See, for instance, "Contrary to Administration Claims, Only a Tiny Fraction of 'Surge' Border-Jumpers Deported".)

Reporting of Operational Statistics. (p. 4) Directs DHS to do a better job of publicly reporting the entire cycle of encounter-through-removal statistics. This is disappointingly genteel chastisement for the hijinks, misrepresentations, and cone of silence that have accompanied the reporting of immigration enforcement activities under this administration, particularly at Immigration and Customs Enforcement (ICE). Regrettably, there is no companion directive to DHS concerning more forthright reporting of approvals and denials of the various benefits undertaken by U.S. Citizenship and Immigration Services (USCIS).

Over-Classification of Information. (p. 5) Directs DHS not to over-use the designation "For Official Use Only (FOUO)" in documents submitted to congressional committees and warns that the signatories of all FOUO documents will be held accountable for inappropriate designations.

Situational Awareness of Illegal Border Activity. (p. 6) Requires the DHS secretary to submit a draft plan for situational awareness and operational control of the southwest border/associated maritime environment, within 180 days of enactment.

Criminal Intelligence Enterprise. (p. 12) Encourages DHS Intelligence and Analysis to coordinate with police chiefs and sheriffs from major urban areas "which is aimed at integrating state and local criminal intelligence and counterterrorism operations" and requires a report on those efforts within 60 days of enactment. Curiously, it does not address the fact that many of these police chiefs and sheriffs steadfastly refuse to comply with DHS agents in their attempts to identify, assume custody of, and remove alien criminals when they are arrested by those self-same authorities.

Border Security and Control between Ports of Entry. (p. 18) Directs officials of Border Patrol's primary organization, Customs and Border Protection, to take all of the un-obligated salary and expense monies that ought to have been used maintaining legislatively required staffing levels (21,300 agents) and put it instead into the UAC pot (see the second bullet in this blog).

Later in the section, DHS is directed to provide a report to Congress on its review of CBP and ICE repatriations of "vulnerable" individuals — presumably UACs and families. This may be a sparse report, given that so few have actually been removed, whereas significant numbers have absconded from their required immigration court proceedings.

This section again raises the issue of missing or incomplete data, directing CBP to ensure it publishes data in the statistical yearbook regarding aliens held in CBP custody. (This is a veiled recognition of, and reference to, one of DHS's statistical manipulations, in which it permitted ICE to take credit for removals of aliens CBP agents had apprehended.)

The section also directs CBP to provide a report on the experimental use of body cameras by Border Patrol agents working the line, within 60 days of completion of the pilot program.

Automation Modernization. (p. 18) Authorizes more than $808 million for various systems modernization programs, including the legacy Treasury enforcement system TECS, a project that has been going on so long that one wonders if that portion of the funding isn't a case of throwing good money after bad. But at least a progress report to the congressional committees is mandated.

U.S. Immigration and Customs Enforcement (ICE) – Salaries and Expenses. (p. 23) Begins by providing nearly $6 billion — well over the amount sought by the administration — and takes DHS to task for "excessive shortfalls [and] poor budgeting practices". The funding is intended to restore proposed cuts to staffing, operations, investigations, and other critical programs. There are line item breakdowns and verbiage in succeeding pages, which aid in clarifying exactly which programs will be beneficiaries, although it is not always clear to what extent.

ICE Legal Proceedings. (p. 24) ICE is given $4.5 million to hire additional trial attorneys to aid in expediting the immigration proceedings docket.

ICE HSI Domestic Investigations. (p. 24) An additional $62 million is provided to ICE Homeland Security Investigations (HSI) division, for a grand total of nearly $1.7 billion "to conduct investigations in high-priority mission areas, such as human smuggling and trafficking ... child exploitation ... antidumping and countervailing duties, including illegally dumped seafood; counter-proliferation; gang activity; and drug smuggling" within its domestic investigative activities. To immigration enforcement watchers, knowing how that sum will be apportioned is critical. In recent years, HSI has done all it could to abandon the immigration-related portions of its mission — down to a statistically insignificant 4 percent of its efforts — and it seems quite likely that without strong oversight virtually none of the funds, new or old, will in fact be used for immigration enforcement efforts.

ICE HSI International Investigations. (p. 25) One happy note is that within HSI, the Visa Security Program (VSP), designed to provide a backstop of homeland security support to consular visa operations abroad, will receive a significant infusion of funds. So, too, will automated systems development to aid the VSP, although a cautionary note is in order that for quite some time DHS and ICE have worked to remove the physical presence of VSP officers from embassies and consulates abroad and replace them solely with automated technology of the sort being developed.

An interesting side note is that ICE is being provided $1.74 million to double the number of "vetted units" in Central America dedicated to interdicting smuggling and trafficking ventures. In other words, Congress is providing the funding for foreign law enforcement and border agents, who have been vetted against amenability to corruption (to the extent such a thing is possible), to aid in ensuring smuggled aliens never reach our borders.

ICE Enforcement and Removal Operations (ERO). (p. 25) ICE's Enforcement and Removal Operations (ERO) division is provided, in total, about $3.43 billion for all of its operational activities plus salary and expenses. Several programs within ERO will receive an infusion of new funds. Toward the beginning of this section of the ES one finds the following statement:

The bill does not contain funds for ICE's efforts to establish a unified career path for ERO frontline law enforcement positions and ensure pay parity in the ERO workforce. Such funds were not requested by the President and are not affordable due to other immigration enforcement and border security budget shortfalls.

This is disingenuous claptrap. The officers and agents in ERO have been overworked, underpaid, shortchanged, and disrespected for years, most particularly under this administration. They were lured by the DHS secretary's promise to ameliorate this situation, even though there was ample reason to doubt his sincerity or motives in doing so. Congress is now perfecting the bait-and-switch on behalf of the administration. The ERO union carried the House of Representatives' water in fighting the administration's efforts to dismantle interior immigration enforcement in the United States (see here and here), and this is how they are paid for their efforts. How about taking some of the past salary and expense monies not used by ICE or CBP and, instead of pushing it toward unaccountable and probably futile UAC programs, making a down payment on the promise of pay parity?

ICE ERO Custody Operations. (p. 26) Congress chastises DHS/ICE for "assum[ing] an artificially low cost per detention bed" and goes on to state that "The department must stop employing misleading and operationally harmful budget gimmicks." It then provides substantially more money for detention beds than the administration sought — an additional $385 million, raising the total to almost $2.533 billion for detention. Somehow, one doubts that it will be expended appropriately by an administration so deeply averse to any use at all of detention, notwithstanding the crisis in immigration court absconder numbers (see "Fugitive operations" immediately below).

ICE ERO Fugitive Operations. (p. 26) The Fugitive Operations program will receive an infusion of new funds — $12.1 million more, for a total of $142.6 million — to overcome administration attempts to curtail the program through deliberately low budget submissions. This is welcome news, but given that nearly a million aliens have shown themselves scofflaws, absconded from proceedings, and are now wandering around the United States, the added monies will unlikely prove adequate to the task.

ICE ERO Criminal Alien Program. (p. 27) ERO's Criminal Alien Program, which includes the Secure Communities program ordered closed by the secretary as a part of the administration's "executive actions", also receives a funding infusion — an additional $7.5 million for a total of over $327 million. The explanatory language, though, is far from satisfactory:

A total of $327,223,000 is provided for the Criminal Alien Program, including an increase of $7,500,000 to mitigate the potential public safety challenge posed by the growing number of jurisdictions choosing not to honor ICE detainers on illegal aliens in their custody. Of primary concern is the release of aliens subject to removal who may pose a danger to the community, requiring ICE to expend additional resources and putting ICE personnel at greater risk when bringing the aliens back into custody. ICE is directed to publish on its website the list of jurisdictions failing to honor ICE detainers and to include details on individuals released as a result of these decisions, segmented by jurisdiction and level of criminality.

Over 300 state and local police and sheriff's offices so far have decided to stop complying with ICE detainers; the DHS secretary orders discontinuance of a major program using biometrics to identify criminal aliens in near-real time; and he concurrently orders an end to the use of detainers, a key tool in removing threats to public safety — and instead of tackling the problem head-on and substantively, Congress throws money at the problem. This will not solve the problems, nor ameliorate the degradation of public safety, officer safety, and efficient (and cost-effective) immigration law enforcement. Surely a Republican-led Congress, if it is truly interested in rolling back the administration's creeping nullification of laws and regulations, can do better than this.

ICE ERO Alternatives to Detention (ATD). (p. 27) Think ankle bracelets and electronic monitoring here, at the high-tech end of the spectrum, daily or weekly calls to one's monitoring officer on the low end. These are the types of alternatives to detention for which Congress is appropriating almost $110 million, nearly $16 million of it additional funds, in return for which it expects to receive semi-annual progress reports on program compliance and effectiveness. There is nothing fundamentally wrong with the concept of ATD — provided it is not conceived of as a panacea, nor as a comprehensive alternative to locking some individuals up because they are unfit for monitoring. However, it is important that the measures of what constitutes "compliance" be standardized and clearly articulated, that the figures not be gamed, and that they be publicly available and subject to careful scrutiny. Unfortunately, this has not been the norm with DHS or ICE in recent years, which is cause enough to exercise a great deal of skepticism about how ATD is being implemented.

State and Local Programs. (p. 52) This portion of the appropriations bill relates to grant monies made available to state and local agencies for various initiatives, two being counterterrorism funding and Operation Stone Garden, a Border Patrol initiative "to enhance law enforcement preparedness and operational readiness along the land borders of the United States". $1.5 billion is allocated in the bill for those purposes — and yet, as discussed earlier, substantial numbers of state and local agencies steadfastly refuse to cooperate with federal immigration authorities' efforts to identify and remove alien criminals from their jurisdictions. Logic and common sense would suggest that any funding to state and local agencies be predicated upon certification that they fully cooperate with DHS in its program missions. That is notably absent from language in the ES or elsewhere.

TITLE IV-Research, Development, Training, and Services; United States Citizenship and Immigration Services (USCIS); E-Verify. (p. 57) $124.4 million in discretionary funds are provided to the E-Verify program, without further discussion.

Little is contained in the appropriations bill relating to USCIS because the majority of its funding is derived from the Examinations Fee Account, from revenues generated by fees for immigration benefits applications and petition. However, the ES might have been well used to provide guidance (or chastisement) to USCIS, as was done for a number of other DHS agencies — for instance, as discussed earlier, with regard to ensuring accuracy and transparency in USCIS statistical accounting for all manner of approvals and denials generated by the agency in the course of each year. This seems to be a missed opportunity. One of the few exceptions is itemized immediately below.

TITLE V-General Provisions, Sec. 522. (p. 66) Asserts that no funding may be provided for granting of benefits to alien recipients unless and until all required background checks are completed and the results returned.

General Provisions, Sec. 528. (p. 66) Requires the secretary to notify, and receive approval from Congress, of any proposal to transfer monies from the Treasury Forfeiture Funds to other programs, projects, or activities. One can only speculate that this may have been inserted to prevent these funds (derived from forfeiture of the proceeds and assets of illegal activities) from being diverted to implement "executive action" programs such as DACA.

General Provisions, Sec. 533. (p. 67) Prevents DHS funds from being used to effect the transfer or release of terrorists from Guantanamo. Regrettably, this appears to be a closing of the barn door after a significant number of the horses have left, as is evident from recent transfers to Yemen, Uruguay, and elsewhere.

General Provisions, Sec. 543. (p. 69) Grants DHS "flexibility" (presumably through funds reprogramming) to respond to immigration emergencies. This is a dangerous provision, without specifics and delimiters on executive authority, which could be (and in the past, was) used to justify the draining of important enforcement programs, to replenish resettlement pots for individuals who justifiably should have remained in detention and expeditiously removed.

General Provisions, Sec. 544. (p. 69) Continues authority for DHS to sell ICE-owned detention facilities — although, in contrast to the above provision under Sec. 543, there are clear delimiters on the manner in which this may take place.

General Provisions, Sec. 565. (p. 71) In another move at forcing transparency, this provision requires DHS and components to publicly post on their websites all reports required by the appropriations committees, unless doing so compromises homeland security or compromises proprietary information.

General Provisions, Sec. 569. (p. 72) Requires the government to include in budget justifications, estimates relating to UAC costs.

General Provisions, Sec. 571. (p. 72) Provides reprogramming language for CBP and ICE-related to care and transport of UACs.

General Provisions, Sec. 572. (p. 72) Establishes/broadens grant funding related to reimbursement of care and transportation costs for UACs and families that are shouldered by state and local agencies in the immediate border area.

In sum, there are a number of welcome, indeed overdue, features of the appropriations bill and explanatory statement with which advocates of fair but unambiguous immigration law enforcement can be pleased. The picture is brightened by some of the amendments introduced (provided that they are, in fact, adopted). Yet, in many ways the bill is a disappointment. We hope it is not a harbinger of a failure of will on the part of the new Congress in creating the pushback this administration requires, before there is a complete collapse of the statutory and regulatory framework of our nation's immigration laws. Time will tell, quite probably sooner rather than later.