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Immigration Law Associates, PC

Not Just A Number: Repealing the Detention Quota Regime

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Immigration and Customs Enforcement

By: James Sellars

In 2007, Congress passed a bipartisan appropriations bill that discretely embedded several riders and conditions on federal funding allocations that have had a tremendous effect on immigration proceedings in the United States ever since.  One such provision in the statute firmly requires Immigration and Customs Enforcement (ICE) to maintain a minimum quota of 34,000 immigrants in detention on a daily basis during the resolution of their individual cases.  This provision has proved to be not only a logistical nightmare for the U.S. legal system and ICE, but it also presents ICE officers with a particularly tantalizing moral dilemma as well.  Moreover, the immigrant detention quota should ultimately be rescinded because it is arbitrary, it is conducive to neither security nor justice, and it is completely void of any deference to judicial economy or agency efficiency.

The detention quota provision stipulated in the appropriations bill is completely arbitrary and unprecedented in U.S. legislative history.  When analyzing the particular diction of the statute, it is important to notice that the 34,000 detention threshold is not intended to be the number of immigrants that Congress seeks to deport.  Instead, that arbitrary threshold is the number of immigrants that Congress insists on incarcerating while they await their immigration fate.  In 2005, the number of incarcerated immigrants awaiting the adjudication and resolution of their case, was less than 20,000.  This curious statistic begs the obvious question; why did Congress, in 2007, create a minimum threshold for immigrant incarceration that was almost double the incarceration rate of the previous two years?  Does this number have an inherent correlation with the rise in the number of dangerous, unauthorized, or out-of-status immigrants in the United States during this time period?  The answer to this question is unequivocally no.  According to the Syracuse University-based TRAC immigration project, the number of deportable immigrants has remained approximately the same since 2005.  Therefore, since the numbers fail to provide an adequate explanation, we are forced to turn to Congress for answers.

The problem with turning to Congress for answers is that many Congressmen and women are themselves perplexed by the rationale behind the imposition of the detention quota regime.  In an astute observation, Florida Congressman Ted Deutch recently noted that “[n]o other law enforcement agency has a quota for the number of people that they must keep in jail.”  Indeed, the detention quota provision in the appropriations bill is exclusively applicable in the immigration context.  Nevertheless, hardliners in Congress have persisted in their annual campaigns to preserve the detention quota provision in various iterations of appropriation bills.  In 2013, when the number of detained immigrants fell to 30,773, U.S. House Homeland Security Committee Chairman, Michael McCaul, wrote a searing public letter to ICE Director John Morton, informing him that he was in clear violation of the statute and its 34,000 prisoner quota.  Thus, since the threshold has no readily identifiable quantitative or logical justifications for its enactment, it is perfectly reasonable to conclude that the rule is arbitrary.  However, this isn’t the sole reason for advocating its rescission.
Other rationales behind the rescission of the detention quota include the enormous costs associated with incarceration.  Indeed, according to the United States Government Accountability Office, the continued incarceration of criminal aliens as a result of the mandatory quota regime was estimated to be $1.6 billion dollars in 2009.  Moreover, the detention quota system is a significant hindrance on ICE’s ability to focus on priority targets and violent criminals.  In 2013, former Homeland Security Secretary, Janet Napolitano, vehemently objected to the detention quota stipulation and colorfully stated before Congress that, “we ought to be detaining according to our priorities, according to public-safety threats, level of offense, and the like, not an arbitrary bed number.”  Unfortunately, her plea fell on deaf ears and the rider provisions were extended for an additional two years in the most recent appropriations bill.

Finally, with such a stringent numerical threshold in place, the question becomes whether the lack of elasticity in the rule can be continued without fostering a corruptive influence on the entire process?  For example, picture the imposition of a mandatory detention regime in another context like criminal law.  Imagine if a state legislature mandated that judges had to fill a certain number of prison cells each day, regardless of how insignificant the offense. This would open a “Pandora’s Box” of possibilities, including possible imprisonment for petty traffic violations.  Additionally, how can ICE’s Office of General Counsel do their job efficiently and effectively if they know their funding is dependent upon meeting a certain numerical threshold?  As Janet Napolitano’s aforementioned statement suggests, they can’t.

In conclusion, the immigrant detention quota should ultimately be rescinded because it is arbitrary, it is conducive to neither security nor justice, and it is completely void of any deference to judicial economy or agency efficiency.  Detention quotas present a serious problem, and a shameful injustice, but one with straightforward solution. Congress should repeal the quota and until then, ICE attorneys and immigration judges should ignore it. Justice demands no less.

Filed under: Immigration Issues