A March 2021 post captioned “Taxpayers to Spend $392.69 per Person per Night on Hotels for Illegal Border-Crossers” examined a “questionable” $86 million contract entered into by ICE to house adults and children who entered illegally in “family units” (FMUs). The DHS Inspector General (IG) completed its investigation of that questionable contract and raised a lot of questions about it, finding that DHS had wasted $17 million in your tax money on rooms that went unfilled while ICE had its own unused detention space. Instead of issuing policies to head off an anticipated migrant surge, the Biden administration threw money at it, and the results were predictable. Expect Congress to investigate next, and possibly the Department of Health and Human Services (HHS) IG, too.
Background on FMU Detention. Section 235 of the Immigration and Nationality Act (INA) requires ICE to detain illegal migrants caught entering the United States illegally, from the point at which they are apprehended until they are either removed or granted status in the United States.
That detention mandate applies to all aliens, except for unaccompanied alien children (UACs) who are not nationals of “contiguous” countries (Mexico and Canada). DHS is required under an extremely flawed 2008 law to transfer those UACs to HHS for placement with a “sponsor” (usually the child’s own parent or an close family member) in the United States.
Accordingly, that detention mandate applies to “accompanied” children in FMUs, except to the degree that it does not. In 2014, a federal district court judge determined that children in FMUs must be released within 20 days. Then-President Obama’s DOJ appealed that decision to the Ninth Circuit (where it lost) and then failed to ask the Supreme Court for review.
The Trump administration attempted to draft regulations that should have superseded the district court’s decision, but (not surprisingly) the same district court judge enjoined those regulations. The Ninth Circuit (again) sustained that decision, three weeks before Joe Biden became president.
The Trump administration ran out of time to seek Supreme Court review of the circuit court’s decision, and the Biden administration refused to do so, and so that 2014 decision remains in effect.
In any event, the first time the Ninth Circuit considered the matter, it held that while DHS had to release the kids in those FMUs within 20 days, it was under no obligation to release the parents who brought them here. To avoid “family separation”, however, the adults are usually released, too.
If you want to know why more than half of the 851,508 illegal migrants apprehended by CBP at the Southwest border (473,682) in FY 2019 were aliens in FMUs, look no further than that 2014 decision. You don’t have to trust me, however. A bipartisan federal panel tasked with looking into FMU migration in 2019 reached a similar conclusion and called for Congress to plug the FMU release loophole the district court decision had created.
That panel found that the “major ‘pull factor’” drawing FMUs to enter the United States illegally was the practice (prevalent both then and now) “of releasing with a [Notice to Appear, the charging document in removal proceedings] most illegal migrants who bring a child with them”, a situation “exacerbated” by that 2014 decision. The panel explained: “In too many cases, children are being used as pawns by adult migrants and criminal smuggling organizations solely to gain entry into the United States”.
In any event, due to that decision, ICE never invested in FMU detention facilities for migrants that it knew it would have to quickly release. Consequently, ICE only has 2,500 detention beds to house FMUs on a daily basis.
The Trump administration addressed this problem by implementing the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Under MPP, illegal migrants (including FMUs) were sent back across the border to await their removal hearings.
In its October 2019 assessment of the program, DHS noted that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien families.
Biden hated MPP, however, and directly after he became president he first suspended the program, and then his DHS tried (thus far unsuccessfully) to end it. Even under the court-ordered continuation of MPP, however, the Biden administration has refused to return FMUs to Mexico pending their removal hearings.
That has led to the question of what, exactly, DHS should do with those FMUs while it is processing them. Border Patrol facilities — built in the late 1990s and early 2000s when most illegal migrants were single adult Mexican males — were never intended for parents with children, and as noted ICE only has detention space for 2,500 FMUs.
The Endeavors Contract. Which brings me to the questionable contract in question. According to the IG, ICE anticipated an FMU surge, and entered into an $86.9 million sole-source contract with “a non-profit faith-based organization founded in 1969 to provide social welfare services to the community” called “Endeavors” to provide FMU housing.
The contract required Endeavors “to provide 1,239 beds and other necessary services in hotels”, and was to run for six months, from March through September 2021.
There were several red flags surrounding that contract from the get-go. First, as an erstwhile federal government contract lawyer, I can assure you that “sole-source contracts” — which are awarded to a specific contractor without an open competitive bidding process — require “adequate justification”. You may not view the federal government as a good steward of your money, but its rules are strict.
ICE went ahead anyway, and when the IG investigated it concluded: “Based on our analysis of ICE’s justification for sole sourcing the contract to Endeavors, we determined ICE did not have supporting documentation to establish that Endeavors was the only contractor that could provide the services needed.” I will get back to that.
Then, there was the contractor, Endeavors, itself. In April 2021, Sen. Ron Johnson (R-Wisc.), the ranking member on the Permanent Subcommittee on Investigations at the Senate Homeland Security and Governmental Affairs Committee, sent letters to both HHS Secretary Xavier Becerra and ICE Acting Director Tae Johnson looking for answers as to why Endeavors had been chosen for this contract.
As Johnson explained in his letter to Becerra: “According to recent media reports, [HHS] awarded the no-bid contract to the Texas nonprofit, Family Endeavors, after the group ‘hired a Biden transition official.’”
In a press release that included those letters, Johnson identified the official in question as Andrew Lorenzen-Strait, and asserted that:
Lorenzen-Strait worked at ICE from 2008 through May 2019, where his last responsibility was overseeing the 45,000-person capacity detention facilities. His immediate boss at the time was Tae Johnson, who has since been promoted to become the acting director of ICE and would have the final say on the $87 million contract.
In an April 2021 article, Axios reported that Lorenzen-Strait had “previously advised the Biden-Harris transition team on” DHS “policy and staffing matters”, and further explained:
He also ran a consulting firm advising companies on federal procurement practices, according to his LinkedIn page, with specific expertise on agencies that include the Administration for Children and Families — the division of the Department of Health and Human Services tasked with detaining and processing child migrants.
The IG’s Findings. Note that the IG never mentioned Lorenzen-Strait, nor did it suggest that there was anything improper about his role in a company that had won this contract. The federal government is often a big revolving door for former employees, and I have no reason to believe that either ICE or Lorenzen-Strait did anything wrong in that regard.
The IG did identify some curious details in the contracting process, however, including the fact that: “Endeavors sent ICE a proposal for housing migrant families without ICE requesting such a proposal.”
Apparently, you can just identify a perceived government need that even the government is not thinking about, write up a bid to address it, and win an $86.9 million sole-source contract. I am plainly in the wrong business.
The IG also concluded that ICE had failed to “adequately justify its use of sole source contracting in selecting Endeavors”.
It specifically noted that ICE had “cited ‘unusual and compelling urgency’ as the basis for an exception to the competitive contracting process” and had determined that “Endeavors was the only known source capable of meeting” its requirements for “1,239 hotel beds and all-inclusive emergency family residential services” for the anticipated rush of FMUs.
Returning to my point above, the IG found that ICE had no documents proving that Endeavors was the only contractor capable of providing those services. Instead, the IG determined:
ICE records showed that Endeavors had no experience providing the services covered by the sole source contract, including hotel beds or all-inclusive emergency family residential services. Rather, the contractor only had experience providing staffing for other migrant services. Further, there was no documentation to show that Endeavors had the capability to provide such services, other than the statements made in its proposal.
Taking this one step further, the IG further explained:
ICE documentation we reviewed showed that ICE used a different contractor in 2021 to provide hotel services to house individuals as they awaited transfer to [ICE Family Residential Centers, “FRCs”], but neither that contractor nor any other contractor was given the opportunity to submit a proposal.
That raises some really serious questions that I assume Sen. Johnson and even his Democratic colleagues will want to examine further, but it is not the end of the issues the IG uncovered.
Under the terms of its sole-source contract with Endeavors, ICE was on the hook to pay for up to 1,239 beds, even if it didn’t need that many. That may be an issue in and of itself, which is made worse given that the IG:
[R]eviewed costs and usage rates at hotels operated by Endeavors to house migrant families between the dates the hotels opened and June 2021 and found none of the facilities used more than half of the number of beds ICE paid for under its contract.
“As a result”, the IG concluded, ICE (read: “you, the taxpayer”) “spent $16.98 million for unused beds at the hotels between April and June 2021”. To make matters even worse, the IG found that the three ICE FRCs — at Dilley and Karnes, Texas, respectively, and in Berks County, Penn., over which I had jurisdiction as an immigration judge — “were underutilized both prior to and during the” Endeavors contract.
Specifically, between January 1 and June 30, 2021, Karnes was at an average of 18 percent of capacity, and Dilley was at an average of 23 percent of its capacity. ICE only used Berks from January to February of that year (although the contract on Berks would not end until June), but when ICE was sending aliens there, Berks was only at 6 percent of capacity.
Some of that had to do with Covid-19-related housing restrictions, the IG found, but March 2020 ICE guidance stipulated “that facilities holding detainees should reduce usage to 75 percent of capacity limits to allow for increased social distancing.” Needless to say, 75 percent is higher than 23, 18, or 6 percent.
Why did all those hotel beds go empty while ICE had its own excess capacity? The IG explained that ICE had failed to “accurately determine the number of beds necessary to address the anticipated surge or determine whether the surge would require additional capacity beyond the existing FRCs” ICE already had contracts for to house FMUs.
I assume that sort of thing happens when an agency enters into an $86.9 million sole-source contract in response to an unsolicited proposal.
The IG further concluded that Endeavors failed to “meet new healthcare protocols or ensure proper” Covid-19 testing, explaining:
For example, families were not tested by ICE for COVID-19 prior to being transported to hotels and were not always tested by Endeavors staff upon arrival at or departure from hotels, putting migrant families and the outside population at risk of contracting COVID-19.
For its part, ICE denied that there was anything improper about this contract or that its current Covid-19 protocols are insufficient. It did, however, agree to “conduct an assessment to appropriately determine the housing needs of families before entering into a similar or new contract”.
That said, however, it is unlikely that ICE under the Biden administration will need any such housing in the immediate future, as the agency claimed that “it is transitioning all forms of family staging to alternatives to detention [ATD] programs”.
I have previously explained that ATD is more costly and ineffective than detention, and that ATD does not satisfy the detention mandate for illegal migrants in section 235 of the INA. For its part, the IG noted that ATD “is not a substitute for detention but allows ICE to exercise increased supervision over a portion of those who are not detained.” “Increased supervision” beats no supervision, I guess.
Congress will likely be looking into ATD, too, if not in this Congress than in the upcoming 118th Congress. ICE may want to get its underutilized FRCs ready.
There may be more to come. As I explained above, Johnson sent a letter to Becerra seeking information about a similar no-bid contract between HHS and Endeavors. That one was to house UACs and was worth up to $529.5 million — which Axios described as “potentially worth more than 12 times” Endeavor's “most recently reported annual budget”. It’s not clear whether the HHS IG is looking into that, but it should.
The key takeaway is that the Biden administration knew there was a border disaster coming, but instead of implementing policies to head that disaster off, it just threw your money at it to manage the chaos. And, as you would expect with such a plan, it does not appear that money was wisely spent.