House Democrats are racing to come to an accord with President Donald Trump this week that would avoid a government shutdown while also cutting the explosive growth in immigration detentions under the Trump administration.
But immigration activists warn that the Democratic proposal may not have its intended effect, and could end up perversely incentivizing even more lock-ups.
With only four days left to broker a compromise before the government shuts down, House Democrats have proposed putting a cap on Immigration and Customs Enforcement detentions as part of a final deal. They’ve pitched it as a way to curb an overzealous ICE. The administration and its allies are calling it a boon to criminals.
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Immigration advocates have their own problems with the proposal. They say it contains a loophole so substantial that it risks accelerating the over-incarceration it’s aimed at stopping. And House Democrats say the criticism is fair—but that this is the best they can do.
“Congress is long overdue in imposing stricter oversight, but imposing that oversight on only one portion of the detention system will incentivize ICE to grow the other portion. In this case, that will mean more jailing of asylum seekers, and for longer,” said Heidi Altman, policy director for the National Immigrant Justice Network.
At issue is ICE’s record-breaking detentions of tens of thousands of people, a trend on the upswing. As of Oct. 30, ICE was holding 44,631 people in custody. That was an all-time high until Dec. 8, when the number was 44,892. By Jan. 30, ICE recently told The Daily Beast, the lockup figures stood at 48,088. ICE, in other words, currently stands on the precipice of detaining the 52,000 people that its parent agency, the Department of Homeland Security, is asking for funding to detain in its next budget.
It wasn’t supposed to be this way. House appropriators last spring authorized ICE to hold a maximum of 40,520 people—substantially below the 51,000-person detention ICE had wanted that fiscal year—and warned DHS against shuffling money around from other accounts to fund a supersized detention apparatus. By September, Jeff Merkley, an Oregon Democrat on the Senate appropriations committee, caught ICE doing exactly that. Then ICE locked up thousands more people than Congress permitted anyway.
“ICE is pursuing a political directive to jail and deport as many immigrants as possible, and it has repeatedly abused the appropriations process to do so above congressionally imposed limits,” Altman said.
Enter the new Democratic offer.
As part of the negotiations to prevent a new government shutdown at the end of this week, lawmakers are proposing a cap of 35,520 detainees through Sept. 30. (DHS and Congress tend to refer to this as a cap on beds, rather than on people in custody.) Their proposal, according to a summary released late last month, “statutorily limits” average detentions “associated with interior enforcement”—that is, undocumented people already in the country—at 16,500 people per day.
It seems like a limit on detentions at first blush, but immigration advocates are warning that it’s less of a restriction than meets the eye. As the Democratic numbers reflect, roughly half of ICE detentions come from people it rounds up inside the country. The other half, they say, are people ICE takes custody of after Customs and Border Patrol apprehends them.
And there lies a potential loophole.
The Democratic proposal doesn’t put restrictions on the funds DHS could use to step up immigration detentions that originate at the border or at airports. Accordingly, advocates warn, DHS will have an open pathway to locking up ever more people—particularly asylum-seekers apprehended at the ports of entry where they have a legal right to seek asylum—and nothing to stop DHS from raiding other elements of its budget to fund it.
“What the proposal does is put a cap on the number of people who can be detained who were apprehended internally,” within the country, said Mary Small, policy director of the Detention Watch Network. “Meanwhile, there’s no limitation on the number of people who were originally detained by CBP and then turned over to ICE.”
Without that limitation, ICE can continue exceeding the number of detainees in its custody beyond its budget, and continue paying for the facilities required to do so by transferring and reprogramming funds from agencies like FEMA.
A document circulating on the Hill from immigration advocates outlines an alternative way to limit detentions without loopholes. Put a “firm cap on the dollar amount that can be used” for detentions, states the document that The Daily Beast obtained, “prohibiting the transfer or reprogramming of funds” between ICE and DHS, and, crucially, cap “the entirety of the detention system, not distinguished by interior versus border apprehensions.” Ideally, the advocates say, Congress should penalize DHS and ICE should they once again detain more people than legislators have permitted.
But Democrats on the Hill, under pressure both from Trump and the calendar, are unlikely to adopt that language. “While we recognize the concerns of immigration advocates about our proposal, we know that this is the best possible outcome given the political reality that Democrats control only half of one branch of government,” a House Democratic aide told The Daily Beast.
The GOP opposition is already on public display. On Sunday, Trump tweeted that Democrats “don’t even want to take muderers [sic] into custody! What’s going on?”
Accordingly, one of the key Democrats in the negotiations, Rep. Lucille Roybal-Allard (D-CA), who heads the homeland-security appropriations subcommittee, put out a statement Sunday blasting “claims that this proposal would allow violent criminals to be released [as] false.” She said the Democratic proposal for capping ICE detentions would force the agency to prioritize targeting “violent felons and other people who pose security risks.”
But Richard Shelby, the Alabama Republican chair of the Senate appropriations committee and the lead GOP negotiator on a government shutdown deal, warned on Fox News Sunday that talks to forestall a shutdown are “stalled” and that Democrats have to be “willing to meet us halfway.”
Still, the Detention Watch Network’s Small warned that the Democratic detention cap already gives ICE a whole lot of what it wants—and if it becomes law, will pave the way for many more immigrants to be locked in ICE’s jails.
“It’s a perfect parallel of what Trump is threatening to do about the border wall,” Smalls said, referring to the president’s frequent threats to declare a state of national emergency that would allow him to use money budgeted for the Department of Defense to construct his long-promised border wall. “ICE is doing the exact same thing, on a slightly smaller, below-the radar-scale.”
