Biden Moves to Cut ICE Detention

Budget request the latest step in dismantling immigration enforcement and demolishing immigration limits

By Andrew R. Arthur on March 29, 2022

The president’s FY 2023 budget has not been released yet (Congress just passed an appropriations bill for FY 2022 this month), but the New York Times reports that President Biden wants to cut ICE detention by more than a quarter — from the current level of 34,000 beds to just 25,000 — for FY 2023. It’s the latest step in the administration’s plan to dismantle immigration enforcement and demolish the limits Congress has placed on immigration — and a test of the popularity of Biden’s immigration policies.

Measuring Detention Space. Detention space is measured by what is referred to as “average daily population” (ADP), that is the number of ICE beds that are available on an average day for detained aliens. Here is how the administration justified its proposed FY 2022 cuts from the FY 2021 ADP of 34,000 beds (which was maintained for FY 2022 after the proposed cut was rejected):

Funding an ADP of 30,000 will maintain ICE’s ability to effectively manage its current detainee population flows and is reflective of impacts from combating the pandemic, and recent decreases in interior enforcement activity. However, surging migrant patterns along the Southwest Border have recently increased, and ICE must remain flexible in its detention bed portfolio to avoid the challenges it confronted during the FY 2019 border crisis. Supporting an ADP of 30,000 will provide ICE with the adequate flexibility and capacity to detain immigration law violators and those who pose a security threat.

“Decreases in Interior Enforcement” and “Surging Migrant Patterns”. My colleagues Jon Feere and Jessica Vaughan have described what “recent decreases in interior enforcement activity” under the Biden administration have looked like in practice. Both explain DHS is “cooking the books” to hide the fact that the number of serious criminal aliens it is pursuing for removal (for crimes like murder, robbery, kidnapping, and sexual assaults) have dropped.

On a monthly basis, I have detailed the “surging migrant patterns” since Biden took office in late January 2021. Simply put, the Southwest border is in chaos, with Border Patrol apprehensions setting a new all-time record at the Southwest border in FY 2021, as that agency has caught nearly 2.2 million illegal migrants in the first 12 full months of the Biden administration.

One would assume that, at least in the short run, the administration would recognize the realities of the current immigration landscape; as the Times’ reporting reveals, however, one would be wrong. All-time apprehension records logically call for record levels of detention funding, which the administration is explicitly rejecting.

In lieu of actual detention beds, the Times explains, the president “is shifting from incarcerating undocumented immigrants to using ankle-monitoring devices and other alternatives”. Those “alternatives to detention” are more costly than detention, however, and do nothing to ensure that aliens show up for court or for removal.

Pending Litigation and Biden’s Budget Request. Expect the president’s immigration detention plans to play a role in ongoing litigation in courts around the country.

DHS’s failure to detain illegal migrants apprehended at the Southwest border is at the heart of Biden v. Texas, a case brought by the states of Texas and Missouri to block DHS’s attempted revocation of the Trump-era Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

The Supreme Court is scheduled to hear arguments in that case late next month after the Fifth Circuit savaged the Biden administration for its policy of releasing most illegal migrants processed under the Immigration and Nationality Act (“INA”, as opposed to expelled under CDC orders issued under Title 42 of the U.S. Code in response to the Covid-19 pandemic) instead of detaining them, as the INA mandates.

ICE’s refusal to detain aliens who are removable on criminal grounds pursuant to Biden administration restrictions on immigration enforcement is at issue in Arizona v. Biden, an ongoing matter in federal court in Ohio.

The court there has ordered ICE to detain aliens charged with removability on criminal grounds, as well as aliens who have received due process and been ordered removed (as again the INA mandates).

The same mandates are at issue in Texas v. U.S., a case that made its way to the full Fifth Circuit before the Biden administration read the writing on the wall and pulled back on some of its ICE restrictions. The case is still pending in District Court in Texas on the validity of the new, slightly narrower ICE restrictions, but expect the judge there to follow the lead of his colleague in Ohio.

In its FY 2023 funding request, the Biden administration is attempting to use funding (or more precisely a lack thereof) for detention beds to justify its release policies. No judge can force the administration to request more beds, nor can he or she compel Congress to provide funding, but the president’s efforts show a lack of good faith in even trying to enforce the law.

The Unpopularity of Biden’s Immigration Policies. Note that the administration’s funding request will probably not be considered in the current 117th Congress, where Democrats control both the House and the Senate. Polling suggests that the GOP will capture at least one of the two chambers on Capitol Hill, meaning that Republicans will have a lot more power to push immigration detention funding next year.

That polling, from Hart Research Associates/Public Opinion Strategies for NBC News, also reveals that the president’s immigration policies are at least part of the reason that his party faces strong headwinds heading into November’s midterm elections.

Respondents were asked what the most important issue facing the country is, and 7 percent stated that it was “immigration and border security”, putting the subject behind pocketbook concerns like the cost of living, jobs and the economy, and taxes and spending; behind voting rights and election integrity; behind the war in Ukraine; and behind climate change.

When given two choices, however, 18 percent of respondents chose border security and immigration, tying it with taxes and eclipsing climate change. As I have explained before, “immigration” can mean different things to different people, but this poll delved deeper to gauge respondents’ specific concerns.

There, concerns about “border security” walloped concerns about “immigration” per se, by a five-to-one margin. The media has largely ignored the disaster at the Southwest border of late, but the news is still getting through to voters. As illegal migration shifts into high gear during the “travel season” for illegal entrants at the U.S.-Mexico line, expect those voters’ concerns to intensify, especially if (as I expect) Border Patrol apprehensions exceed two million in FY 2022.

Few Americans pay much attention to D.C. budget fights. If pictures like those from overcrowded border detention facilities in March 2021 and from Del Rio, Texas, (where some 15,000 migrants overwhelmed agents in September) spill out from the border this summer, an already security-conscious electorate will be clamoring for order — and a change in policy.

Two Solutions to the Border Disaster; Congress Will Get the Final Word. Biden’s detention budget request is just that — a request — and Congress will have the final word. The president tried to cut detention funding by 4,000 beds for FY 2022, but Congress rebuffed those attempts and funded detention at the same level as in FY 2021.

If the appropriations process continues into the 118th Congress, and Republicans capture either the Senate or the House, the GOP will likely try to boost detention levels. That said, if there is either a short-term bill or yet another omnibus before December 31, Democrats may try to cut funding for detention or it will remain static. There could always be a supplemental appropriation in 2023, however.

There are two solutions to the current border disaster — increased detention, a resumption of “Remain in Mexico”, or both. The Biden administration’s request for fewer detention beds this fiscal year, and its ongoing litigation against MPP, however, reveals that the administration doesn’t care about border control. Rather, it shows Biden is simply attempting to dismantle enforcement, thereby demolishing Congress’s limits on immigration.