ICE Director Says Detainee Releases Due to CR Uncertainty

By Rob Margetta, CQ Roll Call

While GOP lawmakers have blasted Immigration and Customs Enforcement’s decision to release thousands of “illegal immigrants” from custody last month, the agency’s head put the onus on Congress Thursday, saying he was only trying to work within the budget restraints imposed by operating under a series of continuing resolutions.

ICE let 2,228 detainees out into supervised release programs for budgetary reasons over a two-week period in February — a fact that became public knowledge after the agency attributed some of the releases to the sequester. But ICE Director John Morton said that the sequester only accounted for a few hundred of those. The rest, he said, were a result of the agency fearing that its detention accounts would be drained by the time the fiscal 2013 continuing resolution currently funding the government (PL 112-175) expires this month.

“A big part of what we were doing in February was trying to live within the budget that Congress provided us,” Morton told the House Appropriations Homeland Security Subcommittee, adding at another point that operating under short-term funding bills has made budgeting for his agency difficult.

For years, the Homeland Security Department has been locked in a disagreement with Republican appropriators over how many«immigration» detention beds should be maintained. Congress has set a mandate of 34,000, while DHS official say that number is higher than necessary. When the department began talking about the sequester’s potential impact, its assertion that ICE would not be able to maintain that number angered GOP lawmakers.

But Morton said Thursday that part of the reason ICE faced a budget crunch was because it was exceeding that requirement. Four months into the fiscal year, the agency was averaging more than 600 beds over the mandate, he said. If it maintained those numbers, it would have resulted in a “yearlong shortfall of $128 million.” Instead, he said he approved the detainee releases to operate within the confines of the CR.

Questions of Flexibility

Subcommittee Chairman John Carter, R-Texas, noted that under the CR, ICE had the ability to ask Congress to shift money from other accounts in order to maintain the required number of beds.

“To the extent that ICE required additional funds to manage its operation needs, I cannot understand why anyone in the department did not seek reprogramming,” he said.

Morton responded that his agency and lawmakers have disagreed with what the mandate means. ICE has taken the position that it’s an average. Even with the releases, the agency has maintained it.

“From our perspective, we were maintaining an average of 34,000 beds,” he said.

Now that the sequester has kicked in, ICE has lost some of that reprogramming flexibility and is facing budget reductions. If it wanted to shift funding for detention beds now, Morton said, it would have to pull from another large account — the one that funds domestic investigations into child exploitation and other crimes.

“Sequestration, if it’s coupled with a mandate to maintain 34,000 detention beds at all costs … it would be at the expense of those investigations,” he said.

Ranking member David E. Price, D-N.C., a longtime skeptic of the bed requirement, questioned whether Congress should abandon it.

“Why in the world should we blindly adhere to keeping people in costly detention when we could use alternatives to detention?” he asked.

Detainee Details

February’s budget-related releases were spread throughout the country, Morton said, and focused on those who pose no potential security threat or flight risk. About 70 percent of those released have no criminal record, while the remaining were convicted of misdemeanors or minor charges, he said. About 150 of those released were unremovable because their home countries will not take them back. Morton noted that under current law, ICE is required to release such detainees rather than holding them indefinitely.

Carter reiterated the demands of several lawmakers looking for detailed information on the detainees’ criminal records. Morton promised to follow up with detailed information, but said that a total of 10 were Level 1 offenders, and that four of those were recalled back to custody after questions arose about the accuracy of their records.

While the Level 1 category can include aggravated assault and other violent crimes, Morton said the detainees in that category mostly had convictions for financial crimes. One, he said, was a case involving a single father with a five-month old child whose offense was committed 30 years ago.

The releases also included 159 Level 2 offenders. “The vast bulk of these sorts of folks, their most serious offense would be a theft offense,” Morton said.

Carter pointed out that the Level 2 category also includes people convicted of multiple drunk driving charges. “What happens when an illegal alien runs over and kills someone?” he asked.

However, the chairman later added that had ICE provided more detailed information on the releases, it could have avoided some of the outrage on Capitol Hill. “We could have saved quite a bit of time today if you’d just answered some questions,” he said.

Morton called that a “fair point.”

Some Republicans have said the releases could hurt efforts to overhaul the immigration system, a point that Rep. Rodney Frelinghuysen of New Jersey raised at the hearing. “At a time of comprehensive immigration reform, the optics of this are just terrible,” he said.