by Derek Gilna and Joe Watson

Immigration reform advocates report little success with efforts to eliminate a little-known, controversial quota mandated by Congress that keeps approximately 34,000 undocumented immigrants incarcerated on a daily basis, including many who have committed no crime. Supporters of the quota contend it is an essential component of U.S. immigration policy, but critics complain it costs too much, makes no difference in terms of public safety and is simply unnecessary.

Measures to repeal the quota have been voted down or withdrawn by lawmakers who believe such changes would never pass. In addition, repeal efforts face strong opposition from conservative lawmakers who fear the release of undocumented immigrants and from private, for-profit prison companies that operate over 60% of immigration detention facilities.

The quota was established in 2007 in response to national concern over undocumented immigrants following the 9/11 attacks. The detainee quota, often referred to as the “detention-bed mandate” or “bed quota,” is written into the federal budget for U.S. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security (DHS). It requires ICE to “maintain a level of not less than 34,000 detention beds” at any given time.

“No other law enforcement agencies have a quota for the number of people that they must keep in jail,” declared U.S. Rep. Ted Deutch, a Florida Democrat who proposed legislation in June 2013 to eliminate the bed quota. “Mandating ICE detain 34,000 individuals a day does not secure our borders or make us safer.”

Deutch has been at the forefront of efforts to repeal the quota, introducing an amendment to the DHS appropriations bill that would have eliminated the bed mandate. Joined by Rep. Bill Foster (D-IL) and with the support of 189 members of Congress, the measure still failed to pass. Deutch, Foster and 63 of their fellow Congressmen sent a letter requesting that the Obama administration remove the quota from its fiscal year 2015 budget request. Their plea was ignored.

Then in June 2014, Rep. Mike Quigley (D-IL) introduced an amendment during an Appropriations Committee hearing to eliminate the bed quota. He was joined by three colleagues, including Republican Rep. David Valadao of California – marking the first time a Republican had directly opposed the quota. Eventually, however, Quigley withdrew the amendment, knowing it would not pass out of committee.

The impasse persists despite support for repealing the quota from those who are legally charged with enforcing it. Testifying at a congressional subcommittee hearing in April 2013, then-DHS Secretary Janet Napolitano called the bed mandate “artificial” and told legislators that ICE should be detaining people “according to public-safety threats, level of offense ... not an arbitrary bed number.” And former ICE Director Julie Myers Wood went on record as saying the quota “doesn’t make sense.”

The detention bed mandate has remained entrenched in federal budget policy in part due to the public hysteria that accompanied the recent mass migration of undocumented immigrants and children across the nation’s southern border. Quota supporters contend it is necessary to ensure that immigrants who are apprehended are actually deported. National Public Radio (NPR) reported that as of October 2013, ICE had confirmed a total of 870,000 immigrants had absconded after being ordered to leave the country.

The bed mandate is “intended to compel the agency to enforce existing immigration law,” wrote U.S. Rep. Harold Rogers, the Kentucky Republican who chairs the House Appropriations Committee, in an email to the news organization.

Indeed, there are those who not only oppose repealing the quota, but support even tougher enforcement efforts. Jessica Vaughan, with the Center for Immigration Studies, a Washington-based think-tank, argued that keeping undocumented immigrants locked up is the only way to ensure they will actually be deported.

“Detention is necessary because of the high risk that people are simply going to flee or skip out on their hearings,” she said.

To compound matters, the dramatic decline in illegal border crossings in recent years has become problematic for ICE officials who are required to comply with the 34,000-bed mandate. Dwindling numbers of undocumented immigrants have prompted the agency to expand the type of immigrants it detains, including non-violent traffic offenders who pose no threat to society, in an effort to keep detention centers full and maintain the quota.

“They’re trying to pick people up for either very minor traffic violations or other minor convictions that wouldn’t be considered serious, but that they can quantify as a criminal alien,” said University of Arizona immigration law professor Nina Rabin, in an NPR interview. Indeed, the news organization’s report included details of a visit to one ICE detention facility where nearly two-thirds of the 400 detainees had no criminal record.

According to emails and other documents obtained by Businessweek through public records requests, former ICE administrator David Venturella told field office workers to “divert resources to increasing their arrests and deportations of those with criminal records because of concern in Washington” that the number of detainees was getting too low. The emails also included suggestions from an Atlanta field office on how to increase the number of immigrant arrests and deportations, such as “combing through old probation lists to find foreigners who had once committed a crime,” searching driver’s license databases and “participating in roadblocks set up by local police.”

Venturella no longer works for ICE; after leaving the agency he was hired by The GEO Group, the nation’s second-largest private prison firm, which operates a number of immigration detention centers. He is now GEO’s senior vice president for business development.

There is no doubt that detaining undocumented immigrants is big business. In an August 13, 2014 commentary for The Nation, former New York County District Attorney Robert M. Morgenthau noted that “[i]t costs a staggering $2 billion a year to incarcerate enough people to satisfy the quota – a figure that represents approximately 40 percent of ICE’s $5.3 billion budget for fiscal year 2014.” Morgenthau pointed out that a significant share of that money goes to private, for-profit prison companies, including GEO and Corrections Corporation of America (CCA).

Congressional support for the bed mandate is less surprising, Morgenthau noted, when considering the lobbying and campaign donations spent on Congress by CCA, GEO and Management & Training Corporation (MTC). [See: PLN, April 2013. p.1].

“[P]rivate-prison companies have no incentive to keep immigrants out of detention,” Morgenthau wrote, “because these companies get paid per bed. Even a small reduction in the quota would be a hit to their bottom line. That is why they have poured money into campaign contributions and lobbying efforts.”

Since 2008, the three largest private prison corporations have contributed $132,500 to members of congressional subcommittees in charge of ICE and federal detention appropriations. According to Businessweek, most of those funds came from CCA; almost half went to the campaigns of Rep. Rogers; Rep. John Carter of Texas, who heads the Homeland Security Subcommittee; Carter’s predecessor, Rep. Robert Aderholt; and Rep. John Culberson, a subcommittee member who oversees ICE’s budget.

The companies expend far more on lobbying – CCA spent over $13 million on lobbyists on the federal level from 2005 to 2013, while GEO spent over $2.8 million.

Rep. Carter denied that campaign donations from private prison firms had influenced his support for the bed mandate. Rather, he claimed, the quota “is an instrument to require ICE to actually enforce the law.”

“The [Obama] administration may want to reduce those levels by releasing dangerous illegal criminals into the streets of America,” he said in a statement to Businessweek, “but I stand firm in my belief we must enforce the laws we have.”

Reform advocates point to alternative measures that would accomplish the same goal. For example, Morgenthau has advocated the expanded use of electronic ankle monitors for detainees who are considered a flight risk, noting the cheaper cost, while reserving incarceration only for those who represent “threats to public safety or national security, as determined by the DHS.”

But he also argued that from a legal standpoint, the quota may be unconstitutional and should therefore be ignored.

“There are serious doubts about the legality and constitutionality of forcing ICE to detain 34,000 people irrespective of whether the agency believes that it can justify each detention,” Morgenthau wrote. ”All three branches of government are responsible for interpreting and upholding the Constitution, including the executive branch. This means that DHS officials, lawyers and immigration judges have both the legal and moral obligation to avoid enforcing the detainee quota.”

That has not happened, however, and ICE’s bed quota remains in force. Further, while sweeping immigration reform measures have been proposed, they have not been enacted – and most of the proposals would likely result in an increase in immigrant detention due to stricter border enforcement.

Sources: www.washingtonpost.com, Bloomberg News, www.businessweek.com, www.thenation.com, www.npr.org, www.immigrantjustice.org

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