Read More Analysis on the Senate Immigration Bill
[Editor's note: Additional information has been added to this post since its original publication.]
The latest unserious immigration bill out of Congress does nothing to stop the Biden administration’s assault on America’s borders and immigration enforcement system. It doesn’t require the hiring of ICE officers, it doesn't require additional detention beds, and it doesn’t promote deportation of illegal aliens. But it does give over a billion dollars in taxpayer money to activist groups that encourage illegal immigration.
One of the central expenditures is $1,287,102,000 for the so-called “Alternatives to Detention” (ATD) program. This nearly $1.29 billion is a massive amount of money for a program that provides little value to immigration enforcement, and the government has already spent quite a lot on ATD. Since 2004, the U.S. taxpayer has been on the hook for about $1.5 billion in ATD expenditures, without much to show for it. This new bill would almost match the amount spent over the past 20 years, all in one year. And most of this money would wind up funding non-governmental organizations (NGOs) that are hostile to immigration enforcement.
Originally, ATD was viewed as a way for ICE to keep tabs on illegal aliens for whom detention wasn’t feasible, such as individuals who needed extensive medical attention. It quickly expanded to individuals for whom ICE didn’t have sufficient bed space. Anti-enforcement activists demanded ATD be expanded further in order to allow a greater number of illegal aliens out of detention; the goal of these activists is elimination of detention altogether with illegal aliens being allowed to roam American streets with nominal oversight from ICE. Considering that fewer than 40,000 illegal aliens are currently detained, these activists have pretty much gotten what they want.
But now, even the simple requirements found in the ATD program have become too much for these activists, and the Biden administration is busily transforming ATD into a social services program for illegal aliens. This bill would facilitate that effort. On its face, ATD is supposed to monitor non-detained aliens through some sort of technology. Currently, there are over 166,000 illegal aliens enrolled in a technological program called SmartLINK, which is a cell phone app that is supposed to keep track of an alien’s location, and another 16,000 illegal aliens are participating via an ankle bracelet GPS monitor. The anti-enforcement activists want ankle bracelets completely phased out so that the enforcement mechanism of ATD is nothing more than illegal aliens walking around with a cell phone app.
As ICE wrote in a draft report on ATD obtained by Fox News, ATD has “little value” and has a “significant expense”, with the vast majority of illegal aliens absconding from the program altogether. ICE concluded that “alternatives to detention are not a replacement for detention and that continuing to release aliens prior to the conclusion of their immigration case will not be successful in creating compliance with the law”.
The perception on Capitol Hill is that nearly all illegal aliens on ATD show up to their court hearings and that the program is nearly 100 percent effective. What Congress doesn’t seem to understand is that ICE keeps aliens enrolled in ATD for only a very short period of time — about 14 months, on average. ICE takes aliens out of the program for good behavior, assuming that that they’ll continue to show up to ICE field offices and immigration hearings. This assumption is based on the fact that illegal aliens in ATD generally do show up to their first court date, which is usually nothing more than a scheduling hearing where the court and the alien agree to some date in the distant future when a hearing on the merits will take place. It is the high appearance rate at that scheduling meeting that is bandied about as a sign that the program is effective. Since the first merit-focused hearing may not be for a year or two into the future, and since ICE generally takes aliens out of ATD long before that, the actual compliance rate is much different.
In order to get a better sense of whether aliens in ATD actually show up to hearings, ICE looked at aliens on ATD who were not taken out of the program and left a portion of aliens enrolled for a much longer period. The results were a stunning rebuke of the costly ATD program. As Fox News explained:
Among those participants, the agency found that absconsion rates — which ICE says includes those who cut off an ankle bracelet, delete their cell phone application, fail to return calls, ignored contact attempts, or who the U.S. government is otherwise unable to locate — were extremely high. Over the time period the report covered (from FY15 to part of FY 20), the average absconsion rate was 84%. Of the 47,905 enrolled for their full immigration lifecycle, 40,300 absconded.
In sum, if you leave illegal aliens in ATD for the entire lifecycle of their case, the great majority of them will eventually disappear. This is probably because they know their cases are not legitimate and because they know a court is going to order them to return home. They don’t want to be quickly located and arrested by ICE. It should come as no surprise that ICE officers find hundreds of cut ankle bracelets during their careers. Despite this, there’s no punishment in law for violating the terms of ATD.
So why is Congress attempting to spend $1.29 billion on this program? Here’s the truth: The anti-border crowd is attempting to transform ATD from a law enforcement program into a social services program. The goal is so-called “case management”, where illegal aliens are given nearly endless benefits — from lawyers, to mental health programs. As one effort pushed by the Biden administration explains, these services include, “legal orientation programs, cultural orientation programs, connections to social services, and departure planning and reintegration services for individuals returning to their home countries”. It’s difficult to describe ATD as an enforcement tool once it goes down this path, and that’s entirely the point. Their goal is to take it out of the hands of law enforcement managers at ICE, and have it run instead by advocacy-minded types in the DHS Civil Rights and Civil Liberties (CRCL) office.
It should be no surprise that the illegal alien advocates who assisted Congress in writing this bill are seeking $1.29 billion for the ATD program because it’s nothing more than a handout to their friends and themselves.
Legislation Should Fund Enforcement. If Congress were serious about the nation’s immigration laws actually having any meaning, it would fund immigration enforcement. As a starting point, Congress would significantly increase ICE detention space and require DHS to fill tens of thousands of detention beds, while also funding an increase in ICE officers and lawyers to manage the increased detention space. Separate from the ATD-related NGO funds, the current bill also allows the Biden administration to give NGOs $933,333,333 and an additional $350 million if it decides to submit evidence to Congress that ICE "has the ability to detain 46,500 individuals and has increased the total number of Enforcement and Removal Operations deportation officers by 200 above the current on board levels." In other words, the administration might well decide that the $933 million is sufficient and not seek another $350 million. But even if the administration did want to give NGOs the extra cash, all it would have to do is show that it "has the ability" to detain 46,500 more illegal aliens by paying for more detention beds -- but not actually fill them. There's simply no mandate for ICE to fill beds. While 200 more ICE officers would be helpful, it's entirely inadequate to address the massive increase in illegal immigration the Biden administration has allowed into the country. ICE needs thousands more officers and prosecuting lawyers to begin to adequately address the increased workload. This bill could have straightforwardly mandated increased hiring in the enforcement space and mandated detention.
Any legislation focused on ATD should (1) limit the number and type of aliens who could be enrolled in ATD; (2) require ICE to keep aliens enrolled in the program during their entire course of their immigration cases; and (3) create serious consequences for violations of the program. Congress could create a five-year prison term for any illegal alien who absconds from ATD. At the least, Congress could require DHS to immediately cancel and deny any immigration benefit application for all violators of the program. This isn’t complicated and it would be the bare minimum for creating some credibility in the ATD program.
Congress requires a number of reports in this legislation. Why not require DHS to issue public notices every time an illegal alien absconds from the ATD program? It could require the name, photo, last known address, and any other relevant information like criminal history. Of course, that would mean DHS would be issuing thousands of such notices every month, and the anti-border activists who wrote the bill don’t want the public to be aware of the ridiculously lax nature of the ATD program. Tens of thousands of illegal aliens abscond from the program every year, and yet Congress keeps funding it.
Conclusion. In sum, the latest immigration bill puts over a billion dollars in taxpayer money into a program that serves little purpose, one that has no serious enforcement provisions, and ultimately hands much of this cash over to anti-border activist groups who will use it to give taxpayer-subsidized social services to illegal aliens.