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2/18: Obama’s new DHS budget reflects security focus
Released 25 March 2016  By César Cuauhtémoc García Hernández - University of Denver Sturm College of Law

Obama’s new DHS budget reflects security focus

César Cuauhtémoc García Hernández
Visiting Professor
University of Denver Sturm College of Law

February, 18 2016

President Obama released the final budget request he will make to Congress earlier this month and the pitch for DHS is peppered with costly security measures that fall in line with the department’s existing operations centered on security concerns. At almost $41 billion, the DHS budget request covers everything from FEMA operations to the nation’s principal immigration law enforcement bodies, ICE and CBP. U.S. Dep’t of Homeland Security, Budget-in-Brief: Fiscal Year 2017, at 1 (2016). Combined, the budgets for ICE and CBP comprise almost one-third (30.3 percent) of DHS’ total budget, including mandatory fees and existing trust funds. Id. at 9. By comparison, the Secret Service, TSA, and Coast Guard receive a combined 30.1 percent of the department’s budget. Id. I took a glimpse at President Obama’s requests for ICE and CBP operations to learn more about the expensive operations proposed.


First for a few highlights about ICE’s recent activities. The budget request notes that in the 2015 fiscal year, ICE detained 28,449 people on average every day and supervised approximately 27,000 others through some type of alternative to detention. Id. at 35. On average, migrants remained locked up for 34.7 days in FY 15, 28.8 days in FY 14, and 28.7 in FY 13. Dep’t of Homeland Security, Congressional Budget Justification: FY 2017, at 42 (2016). Of its FY 15 detained population, only 60 percent were housed in facilities covered regulations intended to implement the Prison Rape Elimination Act. Id. at 55.

Interestingly, the department’s average daily population and average length of stay for FY 15 are higher than the ADP and length of stay reported by the Justice Department just last month [see here]. Neither the DHS budget documents nor the Justice Department report described their data sources so I can’t explain this discrepancy. Furthermore, the roughly 27,000 people in an ATD program were substantially fewer than the 40,452 people enrolled in an ATD program in FY 2012.

In addition to the sizeable detention population and ATD population that ICE supervised last year, the agency also tasked 22 of its attorneys to criminal prosecutions regarding immigration and customs laws. DHS, Budget-in-Brief at 37. With this additional staffing, U.S. Attorneys Offices were able to increase their convictions by over 1,500, the document reported. Id.

Building off this track record, DHS asked Congress to continue devoting sizeable resources for detention as well as identification of folks who have encountered the criminal justice system. DHS wants $1.748 billion to pay for 30,913 immigration detention beds per day, 3,127 beds less than it paid for in FY 16. See Dep’t of Homeland Security, Congressional Budget Justification: FY 2017, at 33 (2016). Of these, 29,953 will be for adults and 960 for families. DHS estimates that it will pay an average daily cost of $126.46 per day for adult beds and $161.36 per day for family beds. DHS, Budget-in-Brief at 38. The cost for adult beds is in line with what the agency reports having paid in recent years.

It also requested $11.7 million more for ATDs than it received for FY 2016. DHS, Congressional Budget Justification at 33.

Meanwhile, to help identify people to fill the adult beds, DHS wants $347 million for the Criminal Alien Program (CAP), including $6.6 million more than it currently receives to hire 100 new officers that will support the Priority Enforcement Program that has replaced the much-criticized Securities Communities Program. DHS, Budget-in-Brief at 38. DHS explained that it hopes this additional funding will reduce the number of detainer requests that local law enforcement agencies decline to honor. DHS, Congressional Budget Justification at 40. Though few people know about it, CAP is a significant immigration enforcement initiative. As I described in Naturalizing Immigration Imprisonment, an article I recently published in the California Law Review,

“CAP increases the government’s ability to detain more people, with the goal of removing the maximum number of migrants who engage in criminal activity, regardless of whether that activity is directly related to immigration. To achieve this objective, CAP depends on close collaboration between criminal law enforcement agencies and ICE. Its sizeable dedicated staff—approximately 1,250 ICE officers—is assigned to jails and prisons nationwide as well as to off-site videoconferencing sites. The ICE officers screen for removability of people arrested upon suspicion of committing a crime or incarcerated after conviction….To make this work possible, Congress has supported CAP with approximately $1.4 billion between the 2004 and 2013 fiscal years, including a significant jump from $6.6 million in 2004 to $137.5 million in 2007. CAP has been quite successful with respect to the number of people taken into ICE custody. Between 2004 and 2011, the Agency arrested 1,116,877 people through CAP, making this the ICE program that led to most arrests during this eight-year period. In New York, CAP is responsible for 77 percent of all ICE apprehensions, including almost 6,500 arrests in 2008. Importantly, many of these individuals are not prosecuted or convicted of a crime. A study of CAP arrests in New York City, for example, showed that 37 percent of migrants taken into ICE custody through CAP had no criminal history; New York Police Department officers merely arrested and booked them and then transferred them to ICE. Overall, then, CAP has expanded the federal government’s practice of imprisoning migrants like no other single policy innovation.”

César Cuauhtémoc García Hernández, Naturalizing Immigration Imprisonment, 103 California Law Review 1486-87 (2015).


ICE’s cousin agency, Customs and Border Protection, was also busy last year. DHS reported that CBP agents apprehended 39,970 unaccompanied minors and 39,838 family units in fiscal year 2015. Though large, this is only about half of the number of children and families CBP agents apprehended the year before: 68,631 unaccompanied kids and 68,684 family units. Id. at 28.

Looking forward, CBP wants $3,833,800,000 to pay for 21,070 Border Patrol agents. Id. at 30. To help them patrol the border, DHS asked for $43.8 million for “integrated fixed towers” to post in Arizona and to replace existing surveillance towers. Id. at 32. The department also wants $33.5 million for high-tech blimps called “aerostats” and another $14.8 million for Black Hawk helicopters. Id. at 32-33.

While there can be no doubt that the request for fewer beds than it currently pays for is significant, the bottom line is that the DHS budget continues to reflect an unwavering commitment to a security-laden approach to immigration and the nation’s Southwest border. In that sense, the Obama Administration DHS will end as it began.

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