President Biden’s Budget Falls Short of Necessary Detention & Enforcement Reforms; Congress Must Cut Funds

By Danica Yu

This year’s transition to the Biden Administration has meant progress in many areas of U.S. immigration policy, from the end of the Trump Administration’s discriminatory “Muslim Ban” and of their harmful public charge rule to reported plans to finally address the nation’s growing immigration application backlog. Still, urgent immigration issues remain that need to be confronted, one of which is the nation’s mass incarceration of immigrants.

Asian Americans Advancing Justice | AAJC, a member of the Defund Hate Campaign, is disappointed that President Biden’s first budget proposal is seeking to continue immigrant detention funding at Trump administration levels. In fact, President Biden is requesting Congress to provide around $8.4 million for the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement office (ICE) — a slight increase in comparison to FY2021 funding levels. $1.8 billion of this money has been allocated for detaining an average of 32,500 people daily, a slight decrease from the pre-Trump levels of 34,000 but nowhere near the reductions we need. We urge Congress to cut funding for this inhumane, expensive, and unnecessary practice that puts immigrants’ safety and liberty at risk.

Immigrant detention is a particularly salient issue for Asian Americans. 57% of Asian Americans were born in a different country, and 1.7 million Asian Americans are undocumented. Asian Americans have accounted for a quarter of all immigration to the U.S. since 1965 and are projected to be the country’s largest immigrant group by 2055. Sikh asylum-seekers detained in 2018 were reportedly banned from wearing their turbans and given no access to vegetarian food. 30 Vietnamese individuals were deported in August of last year, despite being protected under a bilateral agreement between the U.S. and Vietnam.

The DHS often detains immigrants they suspect of committing civil immigration violations, but this hasn’t always been the norm in the U.S. The drafters of the Constitution intended that a person’s individual liberty should only be taken away in rare circumstances, with significant due process rights for the accused. Civil detention ought to be more rare and limited, especially since detained immigrants are not afforded the full due process protections criminal defendants are afforded.

In the 1950s, the government maintained a standard that physical detention should be reserved for rare cases where individuals presented a threat to national security or public safety. A 1958 Supreme Court ruling even asserted that “physical detention of aliens [sic] is now the exception, not the rule.” But in 1988, Congress introduced the mandatory detention process to allow people facing deportation to be held without the right to a bail hearing. Then, in 1996, Congress expanded its use to cover anyone who had committed a broad range of “crimes involving moral turpitude,” which encompasses some lower level crimes. The number of immigrants detained rose steadily through the 90s, paving the way for the practices we see today. The Trump Administration was not alone in its harmful detention practices, as President Obama also expanded family detention during his administration and Congress has increased detention funding for decades.

The U.S. now has the largest immigrant detention system in the world. In the 2019 fiscal year, over 500,000 individuals were admitted to ICE detention facilities, with an average of over 50,000 in custody on a given day. To accommodate growing numbers, ICE turned to contracting with for-profit prison corporations and county jails, which together house 88% of detained immigrants. Contract facilities are not subject to the same government oversight as federally-run facilities, and for-profit corporations in particular are motivated to maximize shareholder returns by cutting operations and medical care costs.

This has dangerous and inhumane consequences for those incarcerated in ICE facilities. An independent review of ICE reports showed that poor medical treatment contributed to over half of detainee deaths. Furthermore, a September 2020 House Oversight and Reform Committee report exposed widespread issues of delayed emergency medical care, staffing shortages, poor sanitation, and expired food.

In 2018, Huy Chi Tran, a legal permanent resident of 34 years, died in ICE custody of a sudden cardiac arrest after being placed in solitary confinement. Staff falsified records to cover-up their failure to monitor him. A review of that facility then showed evidence of a systemic failure to “treat detainees appropriately” and lack of “readily available emergency medications.” An ACLU report described abuses at other facilites, including continual sexual assaults committed by a guard responsible for transporting detainees to their deportation flights, systematic retaliation against individuals on hunger strike, and facilities’ lack of mental health services and suicide prevention plans.

These medical risks were exacerbated during the COVID-19 pandemic. Detainees reported being denied hygiene and cleaning products, a lack of consistently available masks, and an inability to maintain proper social distancing. ICE guidance technically required infected individuals to be isolated in a way that was “operationally distinct from…any punitive form of housing,” but many reported quarantining in solitary confinement-like conditions. Out of fear of such confinement, detainees were therefore less likely to self-report COVID-19 symptoms.

In addition to being actively harmful, detention is neither the only nor the best option for reducing flight risk of individuals in deportation proceedings. There are alternatives to detention, such as ICE’s Family Case Management Program. The program demonstrated a 99% compliance rate for ICE check-ins and 100% attendance at court hearings, all at relatively low costs as compared to detention. Despite this, the Trump Administration canceled the program in 2017.

Because of the COVID-19 pandemic, the detained immigrant population is currently at a historic low. ICE made the decision to release hundreds of immigrants and reduce its detained population to a maximum of 75%. By the end of FY2020, the average detained population fell to 20,000, less than half of the average pre-pandemic numbers. In February 2021, ICE hit a record low of 13,529 people in ICE detention, but the numbers are trending back up. Congress should take this opportunity to cut detention funding, rather than maintaining its pre-pandemic funding levels.

Asian Americans Advancing Justice | AAJC joins the Defund Hate campaign in calling for the following cuts and policies in the FY2022 DHS appropriations bill:

• Cut funding for ICE and CBP’s overall budgets by at least 50%, including specifically 50% cuts in funding for ICE officers and Border Patrol agents.
• Reduce the ICE Custody Operations account by at least 75% through prohibition of the use of funds for the detention of families, a requirement that ICE engage in individualized custody determinations for every person in detention, and a prohibition on the use of funds by Homeland Security Investigations for civil immigration enforcement.
• Defund border wall construction, redirect unobligated border wall funding from previous appropriations Acts, and restrict “virtual” wall and mass-surveillance technologies.
• Restrict DHS authority to transfer and reprogram funding to ICE’s Enforcement and Removal Operations account.
• Through the funding bills for the Departments of Justice and Health and Human Services, invest in appointed counsel programs for immigrants facing removal proceedings. The Department of Justice budget includes a proposed $15 million line item for legal representation for children and families; while signifying an important commitment, it is critical that the Administration commit to appointed counsel programming for all immigrants facing proceedings with a much more significant funding commitment.

Danica Yu is the Policy and Programs Graduate Intern at Asian Americans Advancing Justice | AAJC.