Full Surrender

The Latest DHS Budget Abandons Biden's Promises to Close Immigration Detention Centers and the People Locked Inside Them

The government stayed open and Congress passed a budget. The President willingly signed it, in large part because the Biden Administration agreed to expand ICE detention funding by 22%. DHS—the largest federal law enforcement agency—now has the most funding it’s ever had. The promises Joe Biden made to secure the support of people who voted for Bernie Sanders, promises he reiterated to activists in Georgia after taking office, are now fully abandoned.

The current fiscal year is the deadliest for people in Biden’s ICE cages. The most recent death happened while staffers from the office of Sen. Patty Murray (D-WA) were visiting facility for-profit prison contractor GEO operates for ICE on a superfund site along the Tacoma tide flats. Nobody bothered to tell them about Charles Leo Daniel’s death. They read about it in the news later.

Nonetheless, Senate Appropriations Committee Chair Murray helped pass a DHS spending bill adding 7,500 beds and $1.2 billion to ICE’s deadly migrant caging operation. The law reduces the budget for DHS-OIG, which conducts unannounced inspections of ICE detention centers, by $8.2 million (p.11). And it provides no additional funding for ICE’s backlog-plagued FOIA office. ICE Enforcement and Removal Operations got a total of $5 billion. A bottomless, Scrooge McDuck pool of money for everything Joe Biden and most Democrats said they were against.

President Biden’s FY25 ICE congressional budget justification doesn’t even include FOIA as a core funded activity in the graphic explaining what the funding program does. It’s an afterthought.

But rather than focusing on all of the bad in the budget, I thought it might be generative to point out a right it confers to people in detention—particularly people, like Charles Leo Daniel, who are in solitary confinement. Section 529(a) of the new spending bill says no federal funds shall be used to destroy documents and recordings relating to death, sexual assault, or alleged rules violations that land detained people in solitary, or in criminal prosecution.

Section 529(b) requires these records to be provided upon request to a person who’s been charged with a crime, put in solitary, or otherwise punished.

Section 529(b) requests confer power on people in segregation and others who get punished in ICE detention. If people can prove they made the request for documents, recordings, or other records, and the contractor failed to provide them, it would, arguably, be a violation of the Anti-Deficiency Act for an ICE contracting officer to fulfill a detention contractor’s invoice. Submitting that invoice notwithstanding the contractor’s refusal to provide these records would arguably constitute fraud, if such submission included a verification that the contractor complied with all applicable laws governing ICE detention, including the law funding it.

I would note that this provision was in the previous year’s spending bill as well. That means if a person’s video or other records were destroyed following a death, sexual assault, or allegation of abuse, crime or disruption, spending federals (i.e., paying an invoice) to support a contractor who destroyed the records would also violate the Anti-Deficiency Act.

I harp on the ADA because it’s one of the very few federal spending accountability laws that can subject federal government officials to individual punishment. There’s no tragedy of the commons or just following orders problem. If you, the Contracting Officer, approved the invoice that violates the appropriations conditions, you the Contracting Officer, can be held liable. And if you discover a violation, you’re under a legal duty to report it to antideficiencyactrep@gao.gov. As a result, we have a list of ADA violations published each year.

None of this is useful if you’re locked in a cell by yourself without access to a law library and email. And it’s basically worthless to you if you’re someone who suffers from a severe mental illness or other disability that prevents you from fully accessing all of the programs that are supposed to be available in detention.

One such program, for people like Charles Leo Daniel, was the Post-Order Custody Review (POCR) required by 8 CFR 241. As I lay out in the video I’m posting today, I believe the Franco-Gonzalez v. Holder class action could be expanded with new litigation centered on avoiding another death like that of Mr. Daniel. Franco, while a landmark achievement in access to counsel for people deemed incompetent and thus unable to represent themselves in removal proceedings, unfortunately ends a person’s right to appointed counsel, paid for by the government, upon conclusion of their formal removal proceeding.

But what if you lose? And what if the government of the place where ICE wants to deport you refuses to take you back. You no longer have appointed counsel. But you have all these nominal rights to notice and an opportunity at your freedom if you can satisfy a grueling multi-factor review by an unaccountable ICE official. How are you supposed to secure your freedom from post-order detention without a lawyer if you weren’t about to fight back a removal order without one?

Incidentally, giving Franco class members appointed counsel for for POCRs and solitary confinement reviews (particularly through local U-Rep programs that are more accountable to communities than Congress or a federally funded nonprofit) would likely yield more freedom. Anyone who’s challenged a SLRRFF (significant likelihood of removal in the reasonably foreseeable future) in habeas will tell you how allergic government decision-makers are to under-oath attestations about the facts justifying removal. And maybe just having someone whose job it is to help communities and organizers connect with a person like Mr. Daniel as a means of showing he’s not a danger to his community or a flight risk would have prevented his death.

There’s money for this. $1.2 billion to be exact. We don’t want a new line item in ICE’s budget. We want the cost of post-final order Franco counsel baked into the cake. That will leave fewer resources for profiteering and expansion of this deadly system, and more chances for people to have help escaping it. I think Section 504 of the Rehabilitation Act and Section 529(b) of this year’s DHS funding bill actually require this result. But then again, I’m just some guy.

I don’t propose this court- and lawyer-centric solution because I think it will fix everything. Courts and lawyers will not save us from a system that expands its death-making machinery in the way this one does. Organizing, solidarity, mutual aid, and genuine, abolitionist visions of a future where we all belong are the only things that can do that.