On February 15, President Trump signed the Consolidated Appropriations Act of 2019, which funded more than 15 federal agencies, including the Department of Homeland Security (DHS), through the rest of Fiscal Year 2019. The bill’s passage followed the longest government shutdown in U.S. history, which ended on January 25, 2019, after 35 days. Although the final bill received criticisms from both sides of the immigration debate, it contains measures supported by both parties, addresses U.S. border security concerns, and boosts oversight over DHS enforcement activities. Below are some of the highlights of the immigration-related provisions in the bill.
U.S. Customs and Border Protection
U.S. Customs and Border Protection (CBP) received $49.4 billion in discretionary funding for the rest of Fiscal Year (FY) 2019 to expand its capacity to manage the U.S.-Mexico border. However, the appropriations bill did not provide President Trump his full request for funding to build a border wall, opting instead to allocate funds for new barriers with additional investments in border infrastructure, staff, and border security technology that targets drug movement across the border and strengthens CBP’s capacity to receive asylum seekers.
In the case of new border structures, the bill provides CBP with $1.375 billion to build approximately 55 miles of bollard-style fencing along the southern border in the Rio Grande Valley of Texas, which is significantly lower than the $5.7 billion President Trump demanded during the shutdown. The bill also includes provisions that require the government to use fencing designs that have been in use as of 2017 (thus prohibiting use of any of the prototype designs CBP contracted for in California in 2017) and prohibit construction in sensitive environmental areas located along the U.S.-Mexico border between Brownsville, TX, and the Gulf of Mexico.
The bill also strengthens the agency’s capacity to receive individuals seeking asylum. Congress set aside $415 million to strengthen CBP’s humanitarian assistance capabilities, including funding for medical care, transportation, and food and clothing for migrants. The bill also allotted $192 million to build a new CBP central processing facility in El Paso, TX, and expanded the humanitarian facilities in CBP’s McAllen Central Processing Center. Meanwhile, the bill rejected the Trump administration’s request for joint detention facilities for families detained along the border.
Finally, the bill makes significant investments in border technology, assets, and staff deployed at and between ports of entry. The bill sets aside $100 million for new border technology, including fixed surveillance towers, remote video surveillance systems, and mobile surveillance systems for improving situational awareness between ports of entry.[i] At ports of entry, the bill sets aside $564 million for adding non-intrusive imaging equipment at Southwest ports of entry to detect drugs and other contraband concealed in vehicles. The bill also appropriates $113 million for additional air and marine assets, including three multi-enforcement aircraft. Finally, CBP received $59 million to hire 600 new CBP officers and permission to use fee funding to hire up to 600 additional officers to improve staffing at ports of entry. However, the bill does not fund new border patrol agents above current authorized levels.
U.S. Immigration and Customs Enforcement
U.S. Immigration and Customs Enforcement (ICE) received $7.6 billion in discretionary spending for the rest of FY 2019 to expand its capacity to manage the immigration detention system. While Democrats’ demands to dramatically decrease the number of detention beds in ICE facilities nearly derailed the negotiations, the final bill offered a modest cut in these capacities while expanding alternatives to detention options that allow individuals in removal proceedings to live outside of custody before their hearings if they participate in monitoring programs. The bill also set aside funding for expanding oversight over the conditions in ICE detention centers.
The bill sets detention funding at a level to support an average daily population similar to that from 2018, in order to push ICE to reduce the current level of over 50,000 to approximately 40,520 by the end of the fiscal year. The bill also allocates funds to expand the Alternatives to Detention (ATD) program from 82,000 to 100,000 individuals. As a part of this effort, the bill provides ICE with $30.5 million for ATD family case management programs and $40 million for ATD case management staff. Finally, the bill provides $7.4 million for additional attorneys in the Office of the Principal Legal Advisor courtroom expansions to tackle the immigration court backlog that has extended the wait time for hearings to two years.
Congress also allocated funding to expand the oversight of ICE detention facilities. The bill provides funding to hire new detention facility inspectors in the Office of Professional Oversight to increase the number of inspections of detention facilities that hold individuals for more than 72 hours from once every three years to twice a year. The bill also funds ICE’s efforts to increase the number of detention facilities compliant with its “Standards to Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities” from 86 percent to 97 percent. However, the bill does not fund the expansion of additional enforcement and removal field personnel for the rest of the fiscal year.
In addition to ICE, the new bill also expands other components of the immigration enforcement system, especially the immigration court system. The bill’s explanatory document notes that the Department of Justice maintained a cadre of 395 judges even though Congress set aside funding in the 2018 appropriations bill for 484 judges. The bill provides additional funds to increase the number of immigration judge teams from 484 to 534, which includes funds for courtroom and office space and technology needs. This funding is critical since immigration court system does not have enough judges to process through the immigration backlog that has continued to expand over the last decade.
New Measures Expanding Oversight of the Immigration Enforcement System
In addition to funding the expansion of ICE oversight, the legislation introduces a new set of administrative provisions that reinforce oversight in two ways. First, the bill requires ICE to publicly release data about the categories and number of individuals in ICE detention and ATD programs, including detention data on families, interior and border apprehension detainees, and individuals with positive credible fear claims. The bill also prohibits DHS from destroying any records related to the potential sexual assault or abuse of individuals in detention.
The bill also establishes new provisions that expand oversight over ICE facilities and the actions of the agency. First, DHS is no longer able to prohibit members of Congress from visiting facilities that house children and spells out that the agency cannot change the facility conditions before potential congressional oversight visits. The bill also prohibits placing pregnant women in restraints in DHS facilities. Finally, the bill states that ICE cannot use information from the Office of Refugee Resettlement about sponsors or potential sponsors of unaccompanied children to arrest, detain, or remove those individuals, unless that information reveals the individual has a dangerous criminal background.
Finally, the bill also uses the restriction of funding as a mechanism to promote greater oversight over contracted ICE facilities and state and local immigration enforcement agreements. First, Congress prohibits authorities from using the bill’s ICE Operations and Support funding to maintain contracts for detention services if the contracted facility does not receive above a median score in government performance evaluations. Congress also prohibits authorities from using this same pool of funds to maintain 287(g) agreements between local law enforcement agencies and federal immigration authorities if the DHS Inspector General determines that the agreement was materially violated.
Conclusion: A First Step Towards Bipartisan Reform of the Immigration System?
Despite receiving criticism from both sides of the immigration debate, the new spending bill addresses some concerns from both Democrats and Republicans about the state of our immigration system. It expanded border barriers along the U.S.-Mexico border, strengthened CBP’s capacity to detect drugs and other contraband crossing this border, and increased security and oversight staff. Furthermore, the bill strengthened DHS’ capacity to receive asylum seekers, expanded alternatives to detention, and increased oversight of ICE’s enforcement actions and facilities. In short, the effort to develop a bipartisan consensus around DHS funding produced a bill where concessions from both parties improved the immigration system.
While a good first step, Congress continues to face challenges around reforming the rest of the immigration system. And although there remain significant differences in priorities for immigration funding, this legislation demonstrates that Congress can, when allowed, negotiate in good faith to produce decent results for the country.
[i] For details on the types of infrastructure and technology deployed at the border, see Current State of U.S.-Mexico Border Infrastructure: February 2019.