Biden Tries to Cut ICE Detention, Again

$163 million in wasted beds as apprehensions hover near historic records and criminal alien removals drop

By Andrew R. Arthur on April 5, 2023

President Biden has sent his budget for FY 2024 to Capitol Hill, and — just like last year — he is trying to slash ICE detention beds for illegal aliens, even as CBP encounters at the Southwest border hover at historical record levels. Worse, the administration is costing the taxpayers more than $163 million for unused beds, as it refuses to comply with congressional detention mandates and removals of convicted criminal aliens fall.

Fiscal Year 2024 Congressional Justification. Under perverse bureaucratic logic, if you want to find out what happened in federal agencies last year, you must examine those agencies’ budget requests for next year, and in particular their fiscal year “congressional justifications”. You can hide facts from oversight investigators and the media, but you must tell the folks writing the checks what you’ve done with the money.

ICE’s Fiscal Year 2024 Congressional Justification is downright dismal. For example, the agency explains that in FY 2022, it removed just 38,447 removable convicted criminal aliens.

I almost think that the agency is trolling congressional appropriators in explaining that this was a “modest decrease of 702 (1.8%) from FY 2021’s 39,149”. They should not be so “modest”, but then DHS under Secretary Alejandro Mayorkas has a lot to be modest about.

Compare that to FY 2018, when ICE removed more than 145,000 convicted criminal aliens, a figure that rose to 150,000-plus in FY 2019. The Covid-19 pandemic — which was announced in March 2020 — cut ICE’s detention capacity and consequently its ability to remove convicted criminal aliens — but the agency still managed to deport nearly 104,000 of them that fiscal year.

In other words, last fiscal year, ICE removed just more than 26 percent as many convicted criminals as it had in FY 2018, less than 26 percent as many as FY 2019, and 37 percent as many in the depths of the Covid-19 shutdown in FY 2020. Is there a powerful criminal alien lobby out there demanding that more removable alien criminals should be allowed to stay?

Cutting Detention Beds. ICE provides detention not only for the aliens its officers and agents catch, but also for inadmissible aliens encountered by CBP at the borders and the ports of entry. ICE defines its detention capacity in terms of “average daily population” (ADP), the number of detention beds it has available on a daily basis.

In its FY 2023 budget justification, the White House asked for an ADP of 25,000 adult detention beds, a 26.5 percent decrease from FY 2022 (34,000 beds).

Note that in FY 2018 and FY 2019 — as apprehensions of illegal migrants at the Southwest border surged during the Trump administration — ICE utilized more than 42,000 and 50,000 daily detention beds, respectively.

That FY 2019 figure would have, and should have, been higher, except for two factors. First, the Democrats who controlled the purse strings in Congress took a dismal view of immigration detention generally and refused to fund any more.

Second, halfway through that fiscal year the Trump administration implemented the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Under MPP, illegal migrants apprehended at the Southwest border were sent back to Mexico to await their removal hearings.

Some brief background on that program: Under the Immigration and Nationality Act (INA), DHS is required to detain all aliens apprehended entering the United States illegally, from the moment they are apprehended until they are either granted asylum or removed.

In FY 2019, however, Border Patrol agents at the Southwest border apprehended so many illegal entrants (more than 851,500) that it lacked detention space to hold them all.

As problematic as that was, the detention issue was further complicated by a 2015 district court order in Flores v. Lynch, which interpreted (wrongly, in my opinion) the 1997 Flores settlement agreement (FSA). The FSA was intended to govern the detention and release of alien minors in the custody of the then-Immigration and Naturalization Service (INS).

The 2015 order required DHS to release adult migrants and children apprehended entering illegally in “family units” (FMUs) within 20 days.

The Obama administration appealed that order to the Ninth Circuit, which in 2016 held that DHS could detain the adults, but had to release the kids in that 20-day timeframe. To avoid “family separation”, however, both adults and children are usually released together.

Of the 851,500-plus migrants apprehended at the Southwest border in FY 2019, nearly 474,000 were in family units. As a bipartisan federal panel found in April 2019, the 20-day release requirement in Flores “exacerbated” the border crisis, as it called on Congress to implement a “Flores fix”.

Congress refused to act, so the Trump administration utilized its authority under section 235(b)(2)(C) of the INA to craft Remain in Mexico, which was fully implemented by the summer of 2019.

As DHS determined in its October 2019 assessment of the program, 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. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.

Most importantly for this analysis, DHS did not have to detain illegal migrants subject to MPP in ICE facilities, which freed up what limited bed space there was.

One of Joe Biden’s first acts as president was to suspend the program, and for the past two years his administration has been fighting an effort by the states of Texas and Missouri (in Texas v. Biden) to force it to reimplement MPP. In any event, no alien has been returned under the program since August 2022.

In lieu of returning those illegal migrants to Mexico under MPP or a similar program, the Biden administration has simply been releasing them into the United States, prompting the state of Florida (in Florida v. U.S.) to file suit in federal court in March 2021, opposing those border releases.

On March 8, the U.S. district court judge hearing the matter, T. Kent Wetherell II, issued an opinion finding that those border releases violated federal law. In his opinion, Judge Wetherell noted:

Shortly after President Biden took office, DHS requested a reduction to 32,500 ADP for fiscal year 2022. And for fiscal year 2023, DHS requested a further reduction to 25,000 ADP.

It is true that Congress is ultimately responsible for allocating the funds that are required to detain more aliens. However, DHS led Congress to believe that it did not need more detention capacity because it represented in its fiscal year 2022 and 2023 budget requests that “a reduction in detention capacity level will not impede ICE’s ability to apprehend, detain, and remove noncitizens that present a threat to national security, border security, and public safety.”

In its FY 2023 omnibus federal funding bill, Congress (smartly) rejected the administration’s request to slash alien detention, leaving funding for ICE’s ADP static at 34,000 adult detention beds. Which brings me to ICE’s FY 2024 budget justification.

Finding itself unsuccessful in the Democratically controlled 117th Congress, the White House has decided it will have better luck in the now-Republican controlled House of Representatives in the 118th Congress and is again asking for a cut in ADP to 25,000 beds.

Here is its justification for the reduction: “Funding an ADP of 25,000 maintains ICE’s ability to effectively manage its current detainee population flows. ICE retains the ability to apprehend, detain, and remove noncitizens that present a threat to national security, border security, and public safety”. (Emphasis added.)

Sound familiar? It likely will to Judge Wetherell, too. As he explained in his opinion:

Thus, like a child who kills his parents and then seeks pity for being an orphan, it is hard to take [the administration’s] claim that they had to release more aliens into the country because of limited detention capacity seriously when they have elected not to use one of the tools provided by Congress in [section 235(b)(2)(C) of the INA] and they have continued to ask for less detention capacity.

Millions in Wasted Funding. It only gets worse, because even though Congress funded those beds, the Biden administration refused to fill them — its actual ADP in FY 2022 was 22,630, at a cost to taxpayers in millions in wasted funding.

Here are the numbers: In FY 2022, ICE estimated that it would cost less than $142.44 to detain each alien per day, but the actual cost ended up at $162.50 per day, a per-bed daily increase of more than 20 bucks ($20.06 to be exact) per day.

Inflation is affecting us all, but why did the “average direct adult bed cost per day” increase roughly 14 percent? In its best bureaucratese, the agency explains:

A key variable in rate calculation is the [ADP] across detention facilities. The target rate of $142.44 was calculated under the assumption that ICE would realize an adult ADP of 31,500 for the year. For FY 2022, the ADP was 22,346 adults. A portion of detention cost is tied to levels of ADP, however the majority of detention costs are fixed and not influenced by ADP. An increase in ADP will lower the bed rate and vice versa, all else equal. ... Nevertheless, ICE continues to achieve its mission by executing operations in an efficient and effective manner.

There is nothing “efficient”, let alone “effective”, in how ICE is leaving detention beds empty, and their claims to the contrary are offensive; but let me translate that D.C. word salad.

When it estimated its average direct adult bed cost per day, ICE assumed that it would fill those beds. It must contract or directly pay for detention beds, and many of those costs are fixed, meaning that they will have to be paid whether the beds are occupied or not.

Not detaining those aliens was a choice, however. There was no mass exodus of potentially removable aliens in FY 2022 that dried up the pool of available detainees. In fact, ICE likely had more aliens subject to detention last fiscal year than in any prior one in history.

In FY 2022, Border Patrol agents at the Southwest border apprehended more than 2.2 million illegal migrants. Just over 1.54 million of them were expelled under CDC orders issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic, meaning that more than 1.152 million others were processed for removal under the INA.

Subtracting out the unaccompanied alien children (who are subject to different rules), and the aliens in family units subject to the 20-day release standard in Flores, there were still more than 636,000 single adult migrants who should have been detained. The administration simply didn’t hold most of them.

Let me do the math to explain how much that cost you. At an average of 22,346 detained adults per day, times an extra $20.06 per day , that’s more than $448,250 per day in wasted costs, or more than $163.5 million for all 365 days in FY 2022.

That total figure is $17 million more than the total budget for the Department of Labor. And it’s all purely discretionary waste.

Worse, as Judge Wetherell found, the administration’s refusal to detain migrants who are subject to detention is driving the disaster at the Southwest border:

[T]he evidence establishes that [the administration has] effectively turned the Southwest Border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country by prioritizing “alternatives to detention” over actual detention and by releasing more than a million aliens into the country.

The administration’s FY 2024 ICE budget justification says a lot, none of it good. Criminal alien removals are falling and Southwest border releases continue, even while ICE detention beds sit vacant at a cost of more than $163 million. As a taxpayer, I’m not happy.