E.g., 08/13/2020
E.g., 08/13/2020

As #DefundThePolice Movement Gains Steam, Immigration Enforcement Spending and Practices Attract Scrutiny

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As #DefundThePolice Movement Gains Steam, Immigration Enforcement Spending and Practices Attract Scrutiny

Protesters at a rally in Minneapolis call for abolishing ICE

Protesters march at a rally in Minneapolis calling for the end of ICE. (Photo: Fibonacci Blue/Wikimedia Commons)

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The nationwide outcry and protests following the May killing of George Floyd by local police officers in Minneapolis have sparked calls for fundamental reform of the criminal justice system. Protesters have called for examining use and proportionality of force, accountability and oversight of officers, and the nature of incarceration. The overwhelming role that agencies’ budgets play in law enforcement operations and priorities has taken center stage, as emphasized by the calls to “defund the police.”

The movement has found an audience—and even changes in law enforcement operational policy that were largely seen as unattainable in the past. Yet the new moment, however different it feels, did not happen overnight. It was built on decades of organizing and activism by Black communities against not just individual rogue officers but institutional racism. Immigrant communities have echoed with grievances of their own—encapsulated over the last year or so in the campaign broadly labeled “Abolish ICE.”  

Supreme Court Allows DACA to Continue

On June 18, the Supreme Court, in a 5-4 decision, ruled that the Trump administration’s termination of the Deferred Action for Childhood Arrivals (DACA) program in September 2017 was unlawful. While the court did not dispute the administration’s authority to end DACA, it found the termination was arbitrary and capricious under the Administrative Procedure Act because the Department of Homeland Security (DHS) did not provide an adequate explanation at the proper time.

DACA thus remains in effect for the 644,000 young people brought to the United States as children who currently have work authorization and protection from deportation; with the court’s ruling, the program should be reopened to all applicants who meet the original requirements. The Migration Policy Institute (MPI) estimates that 1.3 million individuals meet all the criteria to apply; this number includes those who already have DACA status (see table). MPI estimates close to 400,000 others could become eligible for DACA if they enroll in a qualifying education program or age into eligibility.

The administration has signaled that it may attempt to terminate DACA once more, offering a new justification to meet the Supreme Court’s concerns. Such a move would almost certainly be legally challenged, and likely enjoined, with a final ruling unlikely to come before the November presidential election. It remains unclear whether DHS will accept new applications or simply allow renewals for current DACA holders. Looming over this question is the fact that U.S. Citizenship and Immigration Services (USCIS), the agency that administers DACA, is on the cusp of furloughing most of its staff amid a $1.5 billion budget shortfall. if it does not receive additional funding from Congress.

Even a quick examination reveals that the muscular nature and shielding from accountability that Americans have come to accept as problematic—and increasingly unacceptable—with respect to local law enforcement are equally valid in the case of immigration enforcement. The federal budget for immigration enforcement agencies has ballooned dramatically in the post-9/11 period, and their practices and priorities have raised a number of concerns. As the Migration Policy Institute (MPI) first reported in 2013, the federal government now spends significantly more money annually on immigration enforcement than it does on the combined budgets of the FBI, the Drug Enforcement Administration, the Secret Service, the U.S. Marshals Service, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives. The result has been an ever more muscular immigration enforcement presence in U.S. life. Indeed, as protesters crowded the streets of Washington, DC, in early June to denounce police brutality, among the federal forces they encountered were nearly 400 U.S. Customs and Border Protection (CBP) agents and U.S. Immigration and Customs Enforcement (ICE) officers. In 15 cities, protests were monitored by overhead drones and aircraft managed by a branch of CBP. The presence of immigration officers may be unexpected at a civic protest whose participants' immigration status was not under question, but it fits with a broader trend of these agencies gaining extra funding and equipment that allow them to substantially expand their reach and activities.

Post-9/11, as the functions of immigration enforcement agencies have been increasingly seen through the lens of national security, they have seen increases in funding, staffing, detention, and deepening and expanding connections with local law enforcement agencies. Put simply, immigration enforcement is a “formidable machinery” that has evolved over time and taken deep roots, with enormous consequences for immigrants and their communities.

Budgets of Immigration Enforcement Agencies

Since the creation of the Department of Homeland Security (DHS) in 2003, the budgets of its two principal immigration enforcement agencies—CBP and ICE—have swelled dramatically.

While CBP and ICE represent just two of the 22 agencies within DHS, they received 29 percent of the fiscal year (FY) 2020 DHS budget outlay. Moreover, in FY 2020, CBP, ICE, and the Office of Biometric Identity Management (OBIM), which operates the biometrics systems critical to conducting and targeting their operations, received $26 billion—$6.5 billion more than all five other federal principal criminal law enforcement agencies combined. In fact, throughout the existence of DHS, federal immigration enforcement agencies have consistently been funded at higher levels than these other federal law enforcement agencies (see Figure 1).

Figure 1. Appropriations for Immigration Enforcement and Other Principal Federal Criminal Law Enforcement Agencies, FY 2006-20 (in thousands)

Note: The other principal federal criminal law enforcement agencies are the Bureau of Alcohol, Tobacco, Firearms, and Explosives; the Drug Enforcement Administration; the Federal Bureau of Investigation; the U.S. Marshals Service; and the Secret Service.

Sources: For each year’s Department of Homeland Security (DHS) Budget-in-Brief from fiscal year 2008 through 2020, see DHS, “DHS Budget,” available online.

This is a relatively new phenomenon. In 1986, for example, the overall budget of the U.S. Immigration and Naturalization Service (INS), which preceded the DHS immigration agencies, equaled just one-quarter of the budgets of the other principal federal criminal law enforcement agencies, MPI found.

Since DHS’s creation, the budgets of both CBP and ICE have almost tripled. CBP’s budget grew from $6.3 billion in FY 2005 to $17.4 billion in FY 2020, and ICE’s increased from $3.1 billion to $8.4 billion during the same period. Budgets of the other major agencies within DHS have not even doubled, with the exception of the Federal Emergency Management Agency (FEMA), which has more than quintupled, largely due to more up-front funding of disaster relief. CBP, which initially had a budget comparable to the Transportation Security Administration, now receives more than twice as much funding (see Table 1).

Table 1. Budgets of Major DHS Agencies in FY 2005 vs. FY 2020

Sources: DHS, Budget-in-Brief: Fiscal Year 2007 (Washington, DC: DHS), available online; DHS, FY 2021 Budget-in-Brief (Washington, DC: DHS), available online.

Yet the rate of growth has not been steady. Funding for immigration enforcement grew dramatically during the first few years after the establishment of DHS and since President Trump entered office. During the Obama administration, between fiscal 2009 and 2016, the immigration enforcement budget grew just 7 percent.

Growth in Staffing and Misconduct

Rising budgets have led to growing personnel at these agencies. CBP, with a total staff of more than 60,000, boasts 44,000 “armed, sworn law enforcement officers”—the largest number of all federal agents. Just under half of them are Border Patrol agents. And ICE’s workforce of more than 20,000 includes 13,300 law enforcement officers.

Incidents of abuse are widespread in these sprawling agencies. An internal CBP report obtained by Quartz revealed that in FY 2018, 9 percent of the CBP workforce was subject to formal disciplinary action. Misconduct in the agencies includes many instances of sexual harassment and assault reported against Border Patrol agents. There have been several cases in which agents shot and killed Mexican nationals in Mexico from the U.S. side of the border, with the Supreme Court siding with the agent in one such case, Hernandez v. Mesa. There also have been allegations of guards in immigration detention facilities physically abusing detainees.

On the other hand, U.S. Citizenship and Immigration Services (USCIS), the agency that adjudicates green cards and applications for naturalization and asylum among other immigration benefits, has a staff of 20,000, including somewhere between 500 and 550 asylum officers. It gets relatively minimal funding from Congress—$132 million in FY 2020—because Congress since 1988 has required it to be self-funded through application fees for immigration benefits. The agency is facing severe budget shortages this year and may have to place 13,400 staffers on furlough if it does not receive emergency funding from Congress.

Building the Wall

Donald Trump’s consistent focus on the border, first as a candidate and then as president, has been matched by unprecedented spending on the border wall. The administration has thus far allocated $15 billion toward building new and replacement barriers at the U.S.-Mexico border, $4.5 billion of which has come from congressional appropriations and $10.5 billion of which has been reprogrammed administratively from other accounts, mostly from the Defense Department. In comparison, between FY 2007-16, the United States spent $2.7 billion on border wall construction and maintenance.

As the administration rushes to distribute contracts to build more sections of the wall, there has been a need for closer scrutiny of how efficiently the money is spent. The Army Corps of Engineers, which manages federal contracts at the border, awarded wall contracts for $400 million and $1.3 billion to Fisher Sand and Gravel, a company touted repeatedly by the president publicly and to senior Corps officials. The Defense Department’s inspector general is conducting an audit of the first contract.

Detention

ICE’s detention of immigrants has also grown dramatically in the past decade. The average daily population held in ICE detention reached the highest levels on record, at 50,165, in FY 2019 (see Figure 2).

Figure 2. ICE Average Daily Immigrant Detainee Population, FY 2007-19

Sources: For annual DHS Congressional Budget Justifications for fiscal years 2007 through 2020, see DHS, “DHS Budget,” available online. For annual performance reviews, see DHS, “Performance and Financial Reports,” available online

Statutory and budgetary mandates have spurred this level of detention and turned it into a lucrative business. The detention budget has increased even more rapidly than the overall ICE budget: between FYs 2007 and 2019, ICE’s budget increased by 67 percent, from $4.7 billion to $7.9 billion, while the detention budget increased by 129 percent, to $3.1 billion in 2019. Changes in immigration laws in 1996 have subjected more noncitizens to mandatory detention without bond, including those who have committed minor crimes. As the detained population grew following these changes, and as detained immigrants stayed in detention facilities longer, the government began to contract out to private prison companies in order to expand its capacity. Amid the post-9/11 focus on national security, Congress began requiring ICE to maintain a certain number of detention beds, thus incentivizing detaining enough noncitizens to meet—and sometimes blow past—the quota. Beginning in FY 2010, and until FY 2017, Congress mandated ICE maintain a certain minimum number of immigration detention beds—33,400 at first, which rose to 34,000 in FY 2012. Indeed, the average daily population in immigration detention rose from 30,885 in FY 2010 to 33,330 in FY 2011—almost exactly the quota level. No other federal law enforcement agency receives similar mandates on maintaining a number of beds in its detention facilities. Immigration detention has since become key to ICE’s budgetary fortunes.

Private prison companies and local law enforcement agencies have reaped profits from these mandates, and have come to rely on ICE detention for an infusion of funds. Small localities desperate for cash have entered into Inter-Governmental Service Agreements (IGSAs), taking on detention responsibilities for ICE in exchange for money. At times, ICE pays these localities a higher daily rate per detainee than they would extract from a similar contract to hold federal or state prisoners. In many cases, localities then subcontract with a private prison company—the most prominent of which are GEO Group and CoreCivic—to carry out detention functions. At times, localities essentially serve as conduits for transferring federal funds to private prison firms, and collect administrative fees for doing so. In at least one case, a small California town subcontracting with GEO received more than $1 million per year from the company in the form of fiscal mitigation payments, administrative fees, and payments for overseeing the subcontract with ICE. As of 2019, 98 facilities were holding immigration detainees based on an IGSA. These 98 facilities, in addition to eight facilities where ICE contracts directly with a private prison company, accounted for about two-thirds of the average daily detained population in FY 2017.

Those holding detention contracts with ICE may try to cut costs in order to maximize profits, resulting in poor conditions for detainees. In 2018, DHS’s Office of Inspector General (OIG) conducted random inspections of four detention facilities and found poor conditions in all of them. In one, OIG found nooses hanging in cells. In another, OIG learned that the facility staff had not reported to ICE an instance of a guard leaving a loaded gun in a staff bathroom that was being cleaned by a detainee. OIG found that all four facilities were serving detainees expired and unsafe food, that two placed detainees in solitary confinement without it being warranted, and that the bathroom conditions in two facilities risked detainees’ health. Currently, ICE continues to detain hundreds of people infected with COVID-19—a number that would likely be higher if testing were widespread—in facilities with a history of poor medical care. In a handful of cases where immigrants have died in ICE custody before the pandemic, it has been reported that ICE or its contractors provided inadequate medical care leading up to their deaths.

Yet as detention has grown, accountability and oversight have not kept pace. OIG found in 2018 that the private contractor ICE was using to conduct oversight of detention facilities was not carrying out the required inspections. In 2019, it found that ICE was granting waivers to substandard detention facilities without the guidance of a standardized process.

Disciplinary and Accountability Offices Underfunded

Despite the overall growth of enforcement budgets, offices within immigration agencies responsible for investigating allegations of employee misconduct have remained marginalized and understaffed. A 2015 report by the Homeland Security Advisory Council recommended that CBP hire at least 350 additional investigators to staff the Office of Professional Responsibility over the next three years. By 2019, CBP had hired just 50.

While funding has more than doubled for CBP’s Office of Professional Responsibility in the past four years, it accounted for just 1 percent of the CBP budget in FY 2020. Similarly, only 2 percent of the ICE budget went toward that agency’s Office of Professional Responsibility.

Additionally, several oversight reports of DHS, ICE, and CBP have determined that the process within these agencies to report misconduct is unclear and ineffective. According to a June-July 2017 survey by the OIG, just 47 percent of CBP employees and 50 percent of ICE employees thought their supervisors would take appropriate actions to correct misconduct in the workplace.

Across the immigration system, then, enforcement budgets have taken priority over all others, handicapping the effectiveness and development of other parts of the system.

The Immigration System’s Links to the Criminal Justice System

Immigration enforcement does not exist in a vacuum. Today, it is intricately interwoven with the country’s criminal justice system. Whenever immigrants interact with the criminal justice system—whether they are charged with a traffic violation or convicted of homicide—they could potentially end up in deportation proceedings. The direct connection with the criminal justice system has raised concerns of profiling in immigration enforcement in a similar way as it has about policing of Black communities. For example, 92 percent of immigrants deported in FY 2018 were from Mexico, El Salvador, Guatemala, or Honduras, despite people from those countries accounting for 64 percent of unauthorized immigrants.

The direct connection between the immigration and criminal justice systems, though not new, was expanded and cemented by Congress in 1996, with the passage of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. These laws dramatically expanded the list of crimes for which noncitizens, including permanent residents, could be deported, and mandated their detention. They also authorized federal immigration authorities to delegate enforcement to state and local law enforcement agencies through formal agreements under a program popularly known as 287(g). These contracts were rare before 9/11 but gained currency afterwards. They were curtailed during the Obama administration but ramped up during the Trump administration. As of June 2020, 77 state and local law enforcement agencies had signed 287(g) agreements, allowing selected jail officers to determine removability of individuals in their custody and initiate their removal proceedings.

The 2008 establishment of the Secure Communities program, which grew out of recommendations of the 9/11 Commission, fully integrated immigration enforcement with the criminal justice system. The program checks fingerprints taken by a participating law enforcement agency against federal databases that can indicate whether someone is a removable noncitizen. All 3,181 law enforcement jurisdictions in the country were participating in Secure Communities by 2013. While the Obama administration paused the program from 2014 to 2016, the Trump administration restarted it in 2017. From January 25, 2017, when Secure Communities was restored, through the end of FY 2017, 71 percent of those removed after being arrested in the interior of the country entered the immigration system through Secure Communities.

Just as noncitizens are transferred from the criminal justice to the immigration system, they are also shuttled to the federal criminal justice system from the immigration system. Those apprehended crossing into United States illegally may be prosecuted either for a misdemeanor or a felony, depending on whether they have been previously deported. While these provisions have existed in immigration law since the mid-20th century, the federal government began to make increasing use of them in the early to mid-2000s, when DHS was trying to implement deterrence measures that would stem new peaks in the numbers of people entering illegally. Consequently, immigration prosecutions have come to represent a disproportionate share of all federal prosecutions—38 percent in 2019. In the same year, the federal courts in the five districts along the U.S.-Mexico border sentenced 41 percent of all individual offenders in the entire federal criminal justice system, though they make up a small fraction of the 94 total federal districts. Immigration cases constituted between 60 percent and 82 percent of the caseloads in the five districts.

Reforms for Both Systems?

It is still unclear whether—or to what level—immigration enforcement will attract the same scrutiny and remedial action as local law enforcement actions. Despite activists’ efforts, movements calling to abolish ICE have so far failed to yield policy changes on par with even the initial reforms announced for local police. Obvious factors may explain the difference: the history of Black grievances and protests is long and deep, while immigration enforcement, however omnipresent in immigrant communities, leaves most U.S. citizens untouched. Local governments, especially those with large constituencies of color, may also feel more pressure to respond to activists’ demands than the federal government.

But the recent brimming over of public frustrations with biased systems of law enforcement may alter this situation. Going forward, there is some indication that restraints on immigration enforcement agencies could be folded into the legislative response to the movement that emerged after George Floyd’s killing: on June 8, Rep. Karen Bass (D-CA) introduced the Justice in Policing Act, which, among other measures, would ban racial profiling within all law enforcement agencies, including immigration ones, and would require increased reporting on profiling. Whether the movement to defund the police embraces reform of immigration enforcement as part of its agenda or not, it is clear that agencies’ practices, priorities, norms, staffing, and budgets deserve a fresh look. Among the policy options for review are shifting resources away from building the wall and beefing up CBP and ICE to the service components of DHS, maintaining tighter scrutiny and accountability of officers’ conduct, targeting enforcement on serious and dangerous offenses, establishing proportionate consequences for immigration violations, and embracing alternatives to detention. 

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