WOLA: Advocacy for Human Rights in the Americas

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27 Jul 2020 | Commentary

7 Humane, Effective Border and Migration Measures in the House’s 2021 Homeland Security Appropriation

This week, the U.S. House of Representatives plans to debate and vote on a bill combining seven 2021 appropriations bills in one package. For now, the plan is for this “minibus” (H.R. 7617) to include 2021 funding for the Department of Homeland Security (DHS). That section lays out the Democratic-majority House’s vision for how DHS should spend $50.72 billion next year across its various components, including TSA, FEMA, the Coast Guard, the Secret Service, and—most controversially—Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and CBP’s Border Patrol component.

The DHS appropriation may face a bumpy road to the House floor, and could even be withdrawn before it gets there. It is likely to face double opposition. Some will come from Republicans (and perhaps a few moderate Democrats) who oppose measures in the bill, which WOLA agrees with and that we describe below, that would make border and migration management more humane. On the other side, strong opposition may also come from progressive Democrats, who can’t fathom funding an agency that’s not only ramped up the detention and expulsion of asylum-seekers, including unaccompanied children, but has also violated the rights of American citizens protesting racial injustice in Portland, Oregon, including using tactics like arbitrary detentions, arrests of citizens, and the use of disproportionate and discriminatory force that are eerily reminiscent of the role that Latin American security forces played in ‘disappearing’ political opponents. (The bill currently includes no limits on funding for deploying DHS personnel to U.S. cities.)

The DHS appropriations bill doesn’t reform the Department. That’s not its purpose: an appropriations bill essentially keeps the lights on for a year, allowing alterations in how money is spent but not changing overall categories or missions. (Deep reform would have to happen on an authorization bill that would initiate a much-needed debate to rewrite the increasingly outdated Homeland Security Act of 2002.)

Nonetheless, the bill before the House this week takes some crucial, necessary steps toward a more humane approach to migration and border management that would significantly diminish human rights abuses at the U.S.-Mexico border. This bill alone can’t solve what’s wrong about U.S. border and migration policy, but it offers many signposts pointing in the direction that reform should go.

Here are seven of them, from the bill text and the Appropriations Committee’s narrative report.

1. Prohibiting border wall spending and pulling back last year’s money

Since 2017, the Trump administration has obtained $18.47 billion with which to build its promised wall along the Mexico border. Only one-fourth of that amount—$4.7 billion—was actually approved by Congress, as the U.S. constitution intends. The other three quarters were not. Instead, they were wrested from the U.S. defense budget via a baseless presidential declaration of a national emergency. 

“This Administration and the Department have increasingly ignored the constitutional role of Congress in providing oversight of the Executive Branch. The Administration ignored the will of Congress,” reads the House Appropriations Committee’s narrative report. As a result, the bill not only prohibits any 2021 expenditure on border wall construction, it would rescind the $1.375 billion that Congress approved for that purpose in 2020. In addition, the bill appropriates $75 million to mitigate environmental damage that border wall construction has caused so far in wilderness areas.

2. The Price amendment: de-funding obstacles to the right to asylum

The Appropriations Committee adopted an amendment proposed by Rep. David Price (D-North Carolina), which prohibits DHS from using funds to carry out several Trump administration measures that have made it all but impossible for threatened people to petition for protection at the U.S.-Mexico border. 

The appropriations bill’s current language shuts down funding to implement “Remain in Mexico” (officially called “Migrant Protection Protocols”); the ban (struck down in early July by a federal court) on asylum for people who passed through other countries without seeking asylum there first; bans on asylum-seekers from specific countries; and “safe third country” agreements like those already reached with Guatemala, Honduras, and El Salvador.

Some legislators worry that an abrupt lifting of “Remain in Mexico” could cause a rush of asylum seekers to the border. In fact, as WOLA explained in a late June analysis, a jump in migration is all but certain to happen anyway after COVID-19 response eases. When that occurs, the U.S. government should be perfectly able to administer a population of asylum-seeking children and families. This can be done with little drama, and for a tiny fraction of the cost of a border wall, by investing in port of entry and processing infrastructure and staffing, alternatives to detention, and immigration court capacity.

3. The Aguilar amendment: providing protection for DACA-eligible people

The Appropriations Committee also added an amendment, introduced by Rep. Pete Aguilar (D-California), that prohibits DHS or any other government agency from using funds “to place in detention, remove, refer for removal, initiate removal proceedings against, or deny work authorization to any individual” who would meet the criteria for Deferred Action for Childhood Arrivals (DACA). The Obama administration implemented DACA—which the Supreme Court just stopped the Trump administration from ending—as a way to prevent the deportation of hundreds of thousands of young people who were brought to the United States as children and have spent nearly their entire lives here.

4. A deep cut to ICE detention

In 2020, Congress gave ICE $8.03 billion to fund its operations, particularly detention and removal of undocumented migrants. The Trump administration sought to increase that amount to $9.82 billion for 2021. Instead, the House bill provides $7.3 billion, a significant cut. The agency would get enough funding to detain 22,000 single adults at a time. 

This is less than half of ICE’s average daily detained population in 2019, the committee explains, because CBP’s COVID-19 border expulsions and the Remain in Mexico program have stranded tens of thousands of migrants in Mexican border towns, reducing the detained population in the United States. In addition, the committee’s report reads, there is an “over-detention of individuals in ICE custody.” To alleviate that, the bill “restricts detention for individuals who do not pose a public safety threat and are not a flight risk to not more than 20 days and, in the case of individuals who identify as transgender, to not more than 5 days.”

In addition, “Funding provided for family detention is intended to phase out this activity by not later than December 31, 2020.” If that provision were enacted, ICE’s family detention centers in Dilley and Karnes, Texas, and Berks County, Pennsylvania, would finally have to close.

The appropriators’ narrative report urges an end to the detention of asylum seekers. “The Committee reminds ICE of its policy to avoid the detention of an individual who has received a positive credible fear determination from an asylum officer or immigration judge, absent a finding by an immigration officer that the individual poses a risk to the community or is a flight risk,” it reads. The bill would fund an increase in alternatives-to-detention programs, and would transfer those programs’ case management from ICE to the Federal Emergency Management Agency (FEMA).

As the cumulative number of COVID-19-positive detainees in ICE custody approaches 4,000, the bill’s narrative report voices alarm about the agency’s stubborn refusal to release non-criminal detainees from facilities where it is impossible to practice social distancing.

The Administration has taken an antithetical approach for individuals detained in ICE detention facilities. …There is a long running debate about how high a priority immigration enforcement should be compared to other homeland security priorities. During a pandemic, however, it should be clear that detention in congregate settings is neither safe for those who are detained nor for those assigned to monitor their custody. Just as the crowding of CBP’s short term holding facilities should be avoided during the pandemic, so should ICE detention facilities, which provide little opportunity for social distancing and are understaffed for the level of medical monitoring now required.

5. Changes to conditions in CBP custody

The House’s bill also seeks to address the miserable conditions faced by children and other migrants during the time they spend in CBP custody. The agency is supposed to pass asylum seekers and other migrants on to other agencies quickly after processing them, but backlogs—most notably during a mid-2019 influx of children and families—have caused thousands to spend weeks or more in holding facilities designed to hold single adults for short periods. During fiscal 2019, three children died in CBP custody.

The appropriators’ report mandates that CBP’s custody guidance incorporate strong procedures for initial health screening, prioritization of populations at risk, sufficient medical equipment and personnel, access to water and food, decent standards at holding facilities (including an end to the agency’s notorious freezing, cold  hieleras), and a proper supply of sleeping mats, showers,  toothpaste, and other consumables. It is a sad comment on CBP management that Congress should need to specify that the agency meet such basic standards. Still, the Government Accountability Office (GAO) found that the agency has violated the law by spending money appropriated for humanitarian needs on items like dirt bikes and dog food.

The narrative report demands vast improvements in CBP’s reporting and documentation of deaths in its custody. It calls for hiring personnel with backgrounds in work with traumatized populations—instead of agents with law enforcement training—to carry out the processing of asylum seekers and other migrants in CBP custody.

Crucially, the bill prohibits the use of CBP funds to deny attorneys access to clients in the agency’s custody, as well as “failing to permit meaningful attorney participation in credible or reasonable fear screenings and non-refoulement interviews.” This would all but end CBP’s highly controversial Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) initiatives, which put asylum seekers on a fast track to deportation while in CBP custody with almost no access to counsel.

6. Pushing back against defiance of congressional oversight

The narrative report provides a direct criticism of DHS’ repeated defiance of congressional oversight. The Appropriations Committee specifically notes the many occasions in the past year during which DHS failed to provide adequate and timely responses to congressional requests for often quite basic information; DHS’ failure to inform Congress of plans to transfer previously allocated funds to other activities; DHS’ and ICE’s inability to provide detailed operational and spending plans for the last two fiscal years; and CBP’s lack of transparency. 

In response to this continued pattern of defiance, the House bill reduces funding for various departmental headquarters offices; seriously curtails DHS’ ability to transfer or reprogram funds; withholds funding for Operations and Support until DHS and ICE fulfill their requirement to provide detailed operational and spending plans; and directs CBP to live up to its transparency maxim of “maximum disclosure, minimum delay.”

7. Trouble at the Inspector-General’s Office

Any agency with the Homeland Security Department’s human rights record and nearly collapsed managerial structure needs strong internal controls. It could hardly be more urgent for DHS, right now, to have a strong, aggressive, productive, independent Inspector General’s office (OIG). But it does not have that. “The Department of Homeland Security’s internal watchdog division has been so weakened under the Trump administration that it is failing to provide basic oversight,” the Washington Post observed in March. During a July 15 House Homeland Security Committee hearing on child deaths in CBP custody, several Democratic committee members voiced strong criticisms of Inspector-General Joseph Cuffari’s effectiveness and qualifications.

The House appropriators’ narrative report continues to sound alarms about the troubled state of the OIG. It points out that, while the OIG’s funding levels have increased 42% since fiscal year 2015, it has reduced its number of published reports from 64 in the first half of fiscal year 2015 to 22 in the first half of fiscal year 2020. In addition to an apparent drop in productivity, the OIG’s reports on tragic deaths of migrants in custody have raised serious concerns: two investigations into migrant deaths took more than a year to complete and were published without recommendations—one was simply a one-page summary of findings. Lastly, despite receiving explicit direction and funding to increase unannounced investigations into ICE detention centers, the OIG only conducted three such inspections in fiscal year 2019 and three more so far during fiscal year 2020. 

Given the public health emergency, the House bill directs the OIG to, at a minimum, make significant improvements in its so far lackluster investigations into immigrant detention centers. It directs the OIG to vastly expand its unannounced inspections of detention centers, to have meaningful conversations with detainees (not just facility staff, as it has done so far), and to talk to outside legal service providers and visitation groups. 

These seven measures aren’t an exhaustive list of the positive steps that the House’s 2021 Homeland Security appropriation proposes to take, they are just the ones that stand out the most to us. Unfortunately, even if this bill does go to the floor and receives the House’s approval, few of these provisions are likely to appear in the DHS bill that emerges, eventually, from the Senate Appropriations Committee. In all likelihood, this bill will not become law until we know the outcome of the November 3 election. If that election’s outcome nudges U.S. border and migration policy forward in the direction of humanity and sanity, the House’s bill suggests some essential first steps.