Anti-enforcement advocates have come up with another manufactured controversy to serve as sob-story bait for mainstream journalists — the detention bed mandate. This is a requirement imposed by congressional appropriators starting in 2009 stipulating that ICE must actually use all of the tax dollars it receives for immigration detention. While it has been portrayed in several recent stories as arbitrary, simplistic, cruel, and wasteful, looking back on the litany of Obama administration executive decrees that have suppressed and undermined enforcement, this mandate now seems downright prophetic.
I'd like to add just a few facts about immigration detention that have been largely missing from the public discussion, since the investigative journalists are sticking to the script provided by the advocacy groups. These are drawn from a collection of internal and unpublished ICE reports I obtained.
- What share of ICE's caseload is in detention at any one time? Less than 2 percent, according to ICE records. As of the end of July 2013 only 1.7 percent of ICE's caseload (30,000 out of 1.8 million active cases) was detained. This is 30 percent less than at the same point last year, when 2 percent were detained (36,000 out of 1.7 million active cases). These numbers hardly suggest that Congress is forcing ICE to use more beds than warranted by its caseload.
- Of the roughly 30,000 aliens in detention, just over half are awaiting a removal decision and just under half have already been ordered removed. More than 80 percent are "mandatory" detainees, meaning that their offenses are so serious that ICE is prohibited by law from releasing them.
- The very small share of aliens who are detained while in immigration proceedings helps explain why there are more than 870,000 aliens who are still living here even after having been ordered removed by an immigration judge (and after exhausting all appeals). These individuals have skipped immigration hearings or failed to appear for removal as ordered. They represent nearly half of all cases that ICE has on its docket.
- The number of absconders grew by more than 15,000 from 2012 to 2013. ICE devotes little attention to pursuing these individuals. In 2012, ICE removed 11,426 aliens who were arrested by the Fugitive Operations units of ICE (out of 176,000 total ICE interior removals).
- The amount of time aliens spend in detention has grown since 2011. Not only is this bad for the aliens, who should be processed as quickly as possible, it also suggests that ICE is now less efficient at removing aliens than before, which increases the cost of enforcement. Aliens were detained 17 to 38 percent longer in 2013 than in 2011, depending on how their case was processed — but the average length of detention for all types of cases was noticeably longer in 2013.
- About half of ICE's enforcement activity in 2012 and 2013 was detaining and processing individuals who were apprehended by the Border Patrol. ICE processed 40 percent more Border Patrol cases for removal in 2013 than it did in 2008, even though the Border Patrol apprehended 42 percent fewer people in 2013 than it did in 2008. Meanwhile, the illegal alien population in the interior has stayed roughly the same and possibly even grown over the same time period. ICE is finding out about more criminal aliens than ever before through Secure Communities and other partnerships with local authorities, yet they are releasing more criminal aliens than they are arresting. With so much interior enforcement that could be done, Congress might well ask why ICE is choosing to use so much of its detention resources on border crossers who can be expeditiously returned rather than on criminal aliens who should be removed from our communities before they commit other crimes.
These facts hardly suggest that Congress is forcing ICE to use more beds than warranted by its caseload. But we can expect to see the detention bed mandate become another bogus talking point in the 2014 budget and appropriations wrangling as the Obama administration pushes for more flexibility to use the less effective and, according to ICE's own analyses, more expensive alternatives to detention. At the very least, Congress should insist that ICE show some progress in reducing the numbers of fugitives and absconders before giving the administration any slack in its detention space leash.