Homeland Security Head Insists ‘Bed Mandate’ Is Not A Quota To Fill Detention Centers


About 34,000 immigrants are kept in detention centers every day, fueled in part by an Immigration and Customs Enforcement (ICE) agency policy known as the “detention bed mandate.” But during his first appearance in front of the House Appropriations Committee hearing to discuss the 2015 Department of Homeland Security (DHS) fiscal year budget Tuesday, Secretary of Homeland Security Jeh Johnson suggested that the “bed quota” in detention centers was to ensure the acquisition of enough beds for immigrant detainees and not to ensure the acquisition of enough immigrants to fulfill that mandate.

Johnson’s statement may mark the first time since his confirmation that he’s expressed a commitment not to set bed quotas, as he assured Sen. Dick Durbin (D-IL) in a December 2013 letter. That’s because since 2007, the detention budget language has stated “[t]hat funding made available under this heading shall maintain a level of not less than 34,000 detention beds.” Although ICE spokesperson Gillian Christensen said in a statement that “ICE does not set quotas,” the agency does set “annual performance goals” and “has the money to deport about 400,000 people per year, and therefore, it does,” according to the Huffington Post.

Since 2009, the Department of Homeland Security has allotted 34,000 beds in 250 facilities nationwide for immigrant detainees in the spending bill, but decreased that bed mandate to 30,539 for the 2015 fiscal year. Immigrants including “asylum seekers, torture survivors, victims of human trafficking, longtime lawful permanent residents, and the parents of US citizen children” have been detained in such facilities. The average detention stay was 37 days in 2007. Immigrants can either be put into these detention facilities by Customs and Border Patrol agents if they are detained at the border, or by ICE officials if they are detained away from the border. It costs taxpayers about $2 billion annually just to put immigrants (of all criminal and non-criminal backgrounds) in these facilities. No other law enforcement body requires such a mandate.

During the hearing, Johnson insisted that ICE should only “maintain the capability” for 34,000 beds, some of which “might be empty at any given time.”

“I have no doubt that it has the word, ‘shall’ in it,” Johnson continued. “I don’t know that the interpretation is that we must maintain 34,000 detainees at any one time. It’s that we must maintain the capability for 34,000 detainees. … We believe that is not the best and highest use of our resources, given our current estimates of who we need to retain, who we regard as public safety, national security, border security threats. Our best estimates is that the the number is somewhere south of 34,000, particularly when we have good alternatives to detention programs that we’ve asked for funding for. We’ve asked for something like 30,600 beds to detain who we believe needs to be detained.”

Rep. John Culberson (R-TX) contended that the DHS should fill all the beds and that enforcement officials do not have the authority to use discretion because they must “enforce the law as it is written.”

“The law is mandatory,” Culberson continued. “And this isn’t optional, it’s not discretionary. There’s no prosecutorial discretion on the part of a police officer or detention folks as to whether or not you’re going to fill 34,000 beds. You shall fill 34,000 beds. Would you, if you could, take that message back to the agency? And I know that the Chairman and all the Subcommittee members will be keenly interested in helping you obey the law as it is written.”

But Rep. Lucille Roybal-Allard (D-CA) expressed concern that the mandate takes away the discretion of ICE personnel who could otherwise place immigrants in alternative means of detention. She said, “capability is one thing, but if it’s ‘must fill them,’ that means that there’s no discretion, that those beds must be filled every night regardless of who it is that you’re arresting, whether it’s elderly or otherwise.”

While Johnson insisted that his department is focusing both detention and deportation resources on high-risk immigrants with criminal backgrounds, the evidence suggests otherwise. A National Immigration Council report found that, “between 2009 and 2011, over half of all immigrant detainees had no criminal records. Of those with any criminal history, nearly 20 percent were merely for traffic offenses.”

An Immigration Policy Council report out this week found that ICE mostly deported immigrants who posed “a threat to no one.” In fact, only one in five deportees qualified for a “Level 1” priority, a category that once encompassed crimes like murder and federal drug trafficking, but now has broadened out to include “theft, filing a false tax return, and failing to appear in court.” Other immigrants were deported for much less.