President Biden’s attorney, defending the government’s immigration policies to the Supreme Court late last month, painted a picture of an administration eager to detain illegal immigrants to the full extent of the law but stymied by a stingy Congress that won’t provide any more beds.
The numbers don’t back that up.
From Dec. 1 to March 31, U.S. Immigration and Customs Enforcement, the Homeland Security Department agency tasked with detaining illegal immigrants, left an average of more than 7,600 beds empty on any given day, or about 27% of its total capacity.
Now, as the Biden administration pleads with the justices for permission to end the Trump-era “Remain in Mexico” policy, those empty beds could come back to haunt officials.
“If you are complying with the law, you are going to use as close as possible to the total number of ICE beds you are authorized for,” said Gene Hamilton, a former top official at the Justice and Homeland Security departments who has tracked the Supreme Court case for America First Legal. “It’s another example of just being very disingenuous with what their capabilities are as compared to what the law requires.”
The beds are at the core of immigration policy.
Under the law, Congress laid out three options for handling illegal immigrants caught jumping the border. They can be detained while they fight deportation, they can be “paroled” into the country in limited circumstances where there is a compelling public interest, or they can be pushed back into Mexico to wait for their deportation cases to be processed.
That latter option was the basis for Remain in Mexico, officially known as the Migrant Protection Protocols, or MPP, which the Trump administration used to resolve the border surge in 2019.
Now facing a worse surge, the Biden administration says MPP is cruel and doesn’t want to use it.
The administration also is reluctant to use all the detention space it has been given and instead is paroling record numbers of people, sometimes nearly 100,000 a month, into the U.S.
“Historically, the detention beds have not been used effectively. We are emphasizing use of alternatives to detention,” Homeland Security Secretary Alejandro Mayorkas told Congress in hearings late last month.
Mr. Mayorkas said he wants to use detention only when it is “a public safety imperative” or it’s critical that someone show up for their deportation proceedings in court.
The problem is that just a day before Mr. Mayorkas’ testimony, the Biden administration’s solicitor general, Elizabeth Prelogar, was painting a different picture for the justices. She suggested that Mr. Mayorkas is using every bed Congress has given him.
“Congress expected us to use the detention capacity that we have, and that’s what we’re doing,” she told the court.
She said Homeland Security was at full capacity in March.
“At that point in time, DHS was appropriated for a little under 32,000 detention beds,” she said. “And the average daily amount of detention over that same month was also at about 32,000 individuals. That’s ICE being a little under its capacity and CBP being over capacity.”
Andrew “Art” Arthur, a resident fellow in law and policy at the Center for Immigration Studies, said equating ICE and CBP beds doesn’t work.
CBP space is for short-term custody while fingerprinting, checking records and figuring out what happens next for an illegal immigrant. By contrast, ICE uses jail cells meant for longer-term detention. Indeed, in many instances, ICE is renting jail space from local communities.
“She could have clarified the facts of this a whole lot better than she did,” Mr. Arthur told The Washington Times.
Experts said ICE’s capacity matters when it comes to ending the cycle of catch-and-release of border jumpers. If they can be detained while awaiting their court hearings, they can be deported in a matter of weeks. Those who are released can linger in the system for six to eight years — if they bother to show up for court dates at all.
Digging into the numbers only makes things murkier.
The Justice Department, in filings with a lower court judge in the case, said CBP’s holding capacity is about 6,000 spaces. Mr. Mayorkas said CBP can hold at least 13,000 people under his new border plan and will have the capacity for 18,000 by later this month.
The Times reached out to CBP last week to clarify which figure is correct, but the agency did not provide a response in time for this article.
The fuzziness of CBP’s numbers underscores the difference between its capacity and the capacity for ICE, where Congress has set a hard cap of funding for 34,000 beds.
ICE said that meant bed space for 31,500 adults as of March 15, but because of COVID-19 restrictions and court orders, its actual operating capacity was 25,780 beds.
On any given day, ICE left more than 5,000 of those beds empty, with an average daily capacity of 20,045 people. The low point was March 4, when it counted 17,988 detainees. The high point was March 21, when it tallied 21,287 people, 4,000 beds shy of capacity.
Looking back from Dec. 1 to March 31, the agency averaged more than 7,600 empty beds a day, according to data ICE has submitted to the court.
The justices homed in on detention capacity in exchanges with Ms. Prelogar.
“You’re sort of making it even harder for you to do anything other than release the people encountered at the border into the United States,” Chief Justice John G. Robert Jr. told her — though he quickly acknowledged that there are “not nearly enough beds to take care of the problem.”
“Did you ask for more?” Justice Stephen G. Breyer prodded Ms. Prelogar.
She ignored the question the first time he asked it, but he came back to it minutes later: “Has the administration asked Congress for more money for detention?”
Ms. Prelogar didn’t answer directly. She said only that funding decisions are up to Congress. She did say Mr. Biden’s new budget asks for more immigration judges to expedite cases and more ways to monitor migrants who are caught and released.
She did not mention that Mr. Biden has asked for fewer beds. His budget would slash 9,000 beds from ICE’s inventory by cutting the spending from $2.9 billion to $2.4 billion.
The Justice Department declined to comment on the record for this article.
Immigrant rights legal advocates contacted by The Times didn’t respond to inquiries.
Neither did Texas Attorney General Ken Paxton, the lead challenger to the Biden administration in the case.
Mr. Hamilton said the Biden administration’s bed cuts undermine the argument that the administration is making a good-faith effort to comply with the law.
“You’re admitting you don’t have the ability to detain everybody, and you’re also admitting you don’t want to use MPP, and you’re also admitting you have a record flood of people at the border — hundreds of thousands a month — and yet you’re asking for fewer beds from Congress?” he said.
The Trump administration took the opposite approach. It asked for more detention space. When Congress lowballed the number, the Trump administration used flexibility in the law to reprogram money and add more beds.
Biden officials treat detention as an option only for worst cases.
“In a world where we don’t have sufficient beds, as everyone acknowledges, there is an imperative public interest in ensuring that we are detaining the people who might be criminals or who might abscond or who threaten our national security, and not simply filling those beds on a first-come basis with no accounting for the limited detention capacity,” Ms. Prelogar told the high court.
She also said MPP relies on cooperation from Mexico.
The Trump administration won that cooperation through threats of economic sanctions. The Biden administration has been reluctant to use similar pressure tactics, and Mexico’s cooperation on taking back migrants has deteriorated.
During the April 26 oral argument, Ms. Prelogar said Mr. Mayorkas has made a carefully crafted decision that the public interest is better served by releasing illegal immigrants rather than pushing them back to Mexico.
She said the high court doesn’t need to evaluate detention beds at this point.
The only question before the justices right now, she said, is whether Mr. Mayorkas has the freedom to end MPP.
“I think that the secretary is well justified in thinking that in light of the tremendous costs that he identified with the program and in light of his determination that it actually detracted from other strategies and programs he thought would be more effective in stemming the tide of irregular migration, that he was well justified in making that policy determination,” Ms. Prelogar said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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