DHS Sec. Johnson Disputes Detention Bed Mandate

By Jessica M. Vaughan on March 14, 2014

Two House appropriations hearings this week revealed some interesting new information on immigration detention issues.

DHS Secretary Jeh Johnson and several deputies appeared before the House Appropriations Subcommittee on Homeland Security to discuss the DHS and ICE budgets.

The president is requesting about a billion dollars less in discretionary spending for the Department in total (down from $39 billion) and about $255 million less for ICE. The bulk of the cuts for ICE came from a request to reduce the number of funded detention beds from the congressionally mandated 34,000 down to 30,500. ICE proposes to save money through greater use of alternatives to detention such as electronic bracelets, bond, and other forms of supervision.

Congress enacted the detention bed mandate in 2009 as a way to help the agency meet statutory requirements as to which aliens must be detained to bring about their removal, and to guarantee that a minimal level of enforcement actually takes place. Congressional appropriators want to make sure that ICE does not use the detention bed money for something else that is presumably less effective.

An analysis done for the House Judiciary committee in 2012 found that ICE actually needs more detention space, not less. The analysis showed that criminal aliens released by ICE, in part due to insufficient bed space, committed 58,000 new crimes over a 2.5 year period, including 59 murders, 21 attempted murders, and more than 5,000 major or violent criminal offenses. In addition, they were charged with more than 6,000 drug violations and more than 8,000 DUI violations.

The Obama administration, which makes no secret of its desire to remove as few aliens as possible, has chafed under this mandate and instigated a relentless media and lobbying campaign to try to persuade Congress to relax it, without success.

On March 11, testifying before the appropriations subcommittee, Johnson hinted at an eyebrow-raising new strategy to evade the mandate, one that validates his reputation as a cunning in-house lawyer. He suggested that the statute requires only that ICE "maintain" or "keep available" 34,000 beds — but that it does not necessarily require ICE to fill 34,000 beds. It sounded to me like he was saying, "you can make me (or taxpayers) pay for bed space, but you can't make me use it."

I was a little stunned by Johnson's remarks, but I was even more stunned that the subcommittee chair, Rep. John Carter (R-Texas), seemed to agree with him.

The testimony from ICE representatives at the March 13 hearing also produced a few interesting tidbits.

Thanks to the non-cooperation policy forced on California sheriffs by the ill-advised and probably illegal TRUST Act, ICE is able to execute 25 percent fewer detainers in that state. Tom Homan, who runs ICE's removal operations, including the Secure Communities program, expressed concerns about the impact on public safety when sheriffs are forced to release known criminals that ICE would like to remove. He also told the committee that it is quite a bit more expensive and dangerous for ICE officers to have to track all these people down, hopefully before they commit more crimes. Homan said there are now 22 jurisdictions that obstruct ICE operations by ignoring some or all detainers.

Homan testified that the administration's proposed alternatives to detention are not always more cost-effective than detention, as advocates claim. When an alien's case moves to the non-detained docket (which numbered 1.78 million cases at the close of FY 2013), it can take much longer to conclude. If it takes more than 300 days to resolve the case, which is not uncommon, then alternatives to detention become more expensive. The more ICE uses ATD, the more clogged the non-detained docket, the longer these illegal aliens get to stay.

Rep. John Culberson (R-Texas) pointed out that with only 25,000 out of 1.78 million cases on ATD, that means that about 1.53 million illegal aliens in ICE's caseload are completely unsupervised and by implication unlikely to be removed. (I learned from documents I reviewed for a recent study that more than 850,000 people on ICE's docket have been ordered removed but remain here in defiance of enforcement.)

In a related development, President Obama recently told representatives of the Congressional Hispanic Caucus that he has ordered a review of ICE practices that will almost certainly result in new excuses and pretexts to avoid enforcing immigration laws.