This is the 118th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we examine Biden’s budget proposal and its projections for various immigration-related agencies and functions.
In Next Destination, we look at the incoming end of Title 42.
The Big Picture
The news: The president’s proposed fiscal year 2023 budget for Homeland Security and its sub-agencies is an increase from the requested budget from this fiscal year (though slightly lower than the ultimate enacted budget), but more importantly, it signals certain shifts in policies and priorities.
What’s happening?
For those not enmeshed in the bog that is the federal budgetary process, the document published last week is essentially the president’s proposal for federal government funding and spending for the 2023 fiscal year, which starts on October 1 (unlike various other state and local fiscal years, which start at random different months in the year, because this is a great system that makes sense). It is not actually the budget, it is a blueprint for what the executive wants the budget to look like, and then it goes through the meat grinder of Congress to emerge, eventually, as the enacted budget, the actual formally adopted plan for revenues and spending.
This year, that proposal amounts to $5.8 trillion. Much of the conversation around it has focused on Biden’s proposal to tax the unrealized gains of massive asset holdings by the wealthiest households, as well as the funding ask for defense (at $813 billion, it’s a $31 billion increase from this year’s already bloated enacted budget; put in context, the increase alone is almost three times the proposed discretionary budget for the Environmental Protection Agency).
For our purposes, we’re focusing here on the Homeland Security budget proposal, which totals $97.3 billion, of which $56.7 billion would be discretionary funding, i.e. the funding actually approved by Congress annually as opposed to mandated spending like pensions. That would represent an increase of $4.5 billion over the fiscal year 2022 proposal, though ultimately a slight decrease from the $57.5 billion in enacted Homeland Security discretionary spending as approved in the Consolidated Appropriations Act (passed a little bit earlier this month, in case you’re wondering how seriously Congress takes its deadlines).
There’s a lot to take away from the budget request, so we’ll break it down into a few key takeaways:
From incarceration to e-carceration
As we’ve written about in the past, the notion of technological monitoring, officially termed alternatives to detention (ATDs) and sometimes called “e-carceration,” has been building steam among liberals and moderate Democrats as a viable and preferred alternative to civil immigration detention. In many policymakers’ view, it’s a way to essentially control and surveil immigrants in removal proceedings—a countermeasure against claims that they are open borders, the fact that this argument will be deployed anyway notwithstanding—without having to subject immigrants to the horrors of a poorly-managed and abjectly neglectful detention system.
Immigration detention is supposed to be in all cases non-punitive, meant only as a way to ensure that people will return to court or actually leave the country when ordered removed, though functionally it is almost identical or has even worse conditions than criminal detention. The ATD programs use tools like mandated check-ins, ankle bracelets, and surveillance apps to in theory accomplish the same thing—ensuring that immigrants are going to court and complying with court orders. Still, practically no one is required by law to be either detained or actively monitored.
This budget proposal firmly establishes a preference for ATDs as the direction of choice for the Biden administration. It includes $1.4 billion for the maintenance of 25,000 detention beds, including the total elimination of remaining funding capacity for 2,500 family beds and a reduction in 5,000 adult beds. In its wake, it’s doubling down on ATDs, asking for an additional $87 million in program funding, up to a total of $527 million. For reference, the ATD budget ask in fiscal year 2018 was $177 million.
These potential funding and corresponding manpower increases are intended to pay for both growing enrollment in existing ATD programs like BI Incorporated’s SmartLINK and new initiatives like the house arrest plan we discussed in February, presumably as a direct response to both the decreased in detained population and an expected increase in the number of people seeking asylum at the border, particularly following the expected end of Title 42 (more on that below).
Eyes on asylum and court backlog
One of the most notable funding increases is to the U.S. Citizenship and Immigration Services, which is going from an enacted discretionary budget of about $128 million in fiscal year 2021 to a proposed discretionary budget of about $913 million for fiscal year 2023. If the initial number seems small to you, that’s because USCIS is one of a few federal agencies that’s mainly fee-funded, meaning that the amount it receives from Congress is typically a very small fraction of its operating budget, with revenues from immigration application fees making up the bulk. Here, Biden is actively choosing to request an investment into what is usually an afterthought agency, with a specific focus on asylum adjudications and reducing the application backlog.
Of the requested discretionary funding, about $375 million is intended specifically for asylum processing, likely an effort to fund the administration’s new plan to have asylum officers in USCIS adjudicate certain defensive asylum applications filed at the border, instead of having them automatically go to the immigration courts instead. Another $389 million would go towards general application adjudication to start clearing out backlogs that have formed across the board, including for refugee processing.
The immigration courts themselves, which are under the Justice Department and not Homeland Security, would also get a boost to try to deal with their own backlog. The budget for the Executive Office of Immigration Review would increase by about $621 million, to around $1.35 billion, largely in order to hire more immigration judges to start clearing out some of the roughly 1.7 million pending cases. USCIS has more than 9.5 million pending applications.
Both backlogs ballooned under Trump: the courts had around 629,000 cases when Trump took office and more than doubled by the time his term ended, due to a combination of increased enforcement and new restrictions on judges’ discretion. For USCIS, it cut the agency’s budget and changed its focus from immigrant processing to enforcement. For both USCIS and the courts, we’ve reached a situation where federal policies are essentially secondary to logistical concerns; case in point, the administration’s failure to get anywhere near its current refugee cap.
Death, taxes, and increased border security
Unsurprisingly, the proposal is seeking an increase to Customs and Border Protection’s budget, up about $675 million from fiscal 2022’s proposal of $14.5 billion. The largest chunk of new spending is for “mission support facilities,” including design and construction of two new Border Patrol stations at a cost of $60 million, as well as the hiring of 300 new Border Patrol officers and 300 Border Patrol Processing Coordinators, a position that’s only existed for about a year and is meant as civilian processing support for BP agents encounter migrants in the field. There is also a chunk of $129.5 million in spending for medical treatment of migrants.
As we’ll discuss in a little more detail below, the project of border surveillance and a so-called smart wall reliant on technology as opposed to physical infrastructure has been a priority for administrations of every stripe for years, and that’s reflected in the budget proposal. Among the funding for technological implements and surveillance are $63.2 million for the Border Enforcement Coordination Network, a software and hardware monitoring system; $60 million for enforcement aircraft; and $13.5 million for integrated surveillance towers.
Some of the beefing up of border capabilities no doubt has to do with the expected influx from the end of Title 42, as well as the administration’s general desire to be seen as tough on the border as we head into the midterms. The GOP is itching to hit Biden every day with claims of border chaos and non-enforcement (which they’ve already been doing even as Title 42 continued), and the administration is no doubt keen to combat that narrative.
How we got here
Congress established the Department of Homeland Security in 2002 in response to 9/11. DHS began operations the following year. It was a massive government reorganization: the Immigration and Naturalization Service, an agency within the Department of Justice, was dissolved and replaced with Immigration and Customs Enforcement, Customs and Border Protection, and the U.S. Citizenship and Immigration Services, all with their own purviews. More than a dozen other agencies were transferred from federal departments, including Transportation, DOJ, Defense, Agriculture, and Energy. The immigration courts remained under the Department of Justice.
Although DHS included immigration agencies from its inception, in its early years the department focused the bulk of its resources and public messaging on counter-terrorism. The Bush administration’s 2003 homeland security budget brief (published before the creation of DHS) called the “terrorist threat” a “permanent condition.” When immigration was mentioned, it was often in conjunction with counterterrorism; the term “illegal immigration” only appears twice in the 37-page document.
Notably, the 2003 document talks about funding a “Smart Border of the Future” and “using 21st century technology to defend the homeland.” Unauthorized immigration was clearly a concern—28 percent of the fiscal 2003 budget was allocated to “securing our borders”—but the stated purpose of enhanced border security was to screen for potential terrorists.
By the 2004 fiscal year, the Department of Homeland Security was up and running, and the Bush administration was throwing huge amounts of money at it. The 2004 DHS budget was $36.2 billion, a 7.4 increase from the previous year and 64 percent more than had been spent on fiscal 2002, when DHS’s various agencies were still scattered across various federal departments.
Over the years, the DHS budget would occasionally get a boost from emergency supplemental funding. Between 2006 and 2008, Congress appropriated $53.8 billion to DHS for hurricane relief, most of which went to FEMA, yet another DHS agency. In 2014, the Obama administration asked Congress for $3.7 billion to address the increase in unaccompanied migrant children at the border. Most of that funding would be allocated to the Department of Health and Human Services, which oversees the Office of Refugee Resettlement, but $346 million was requested for CBP and its component agencies, $39.4 million to fund more border surveillance, and $988 million for ICE investigations, detention, and processing.
In 2018, DHS redirected $169 million from some of its component agencies, including FEMA and the Coast Guard, to pay for ICE’s growing detention infrastructure. The following year, Congress passed an emergency funding bill—often erroneously referred to as a humanitarian aid bill—in response to the massive backlog of migrants and squalid conditions in Border Patrol processing stations. More than half of the $4.6 billion was sent to the Department of Health and Human Services; a sizable chunk of the remainder was allocated for CBP.
One of the biggest shifts in the two decades since DHS was established has been the department’s stated purpose. The 2019 DHS budget brief, for example, stated that the budget placed “emphasis on border security, enforcing and administering our immigration laws, preventing terrorism and enhancing security, and increasing our Nation’s cybersecurity defenses.” Counterterrorism was still a concern, but immigration was clearly a far greater one. This shift was partly a consequence of the Trump administration’s—or really, of Stephen Miller’s—hardline immigration policies. But the conflation of “homeland security” and “border security” began long before Trump took office, and was a bipartisan project.
The Biden administration has taken a slightly different stance: the budget brief has all the usual talk about combating terrorism and securing the border, but it also says the administration will prioritize “investments to promote a humane and efficient immigration system” and to “protect civil rights.” The statements at the beginning of each budget brief are, of course, just statements—but it’s important to note how each successive administration frames the tens of billions it requests from DHS each year.
An emphasis on technology is a longstanding tradition. In a statement, DHS secretary Mayorkas emphasized the budget’s “smart investments in technology to keep our borders secure.” For years now, Democrats have framed border technology as a more effective and more humane alternative to a physical wall. But, as we’ve noted, every administration since Clinton has allocated funds to border surveillance technology. The increased funding for technology has had two effects: it has caused migrants to rely more on smugglers and pushed them into more dangerous terrain. And as J. Weston Phippen recently wrote for Politico magazine, some of the supposed innovations along the border have hardly worked—but instead of scrapping the project of a smart wall altogether, DHS has for years poured more and more money into its tech dream.
What’s next?
Now the budget proposals will go through the gauntlet of the Congressional process. There are a lot of competing priorities this year, complicated by the fact that many legislators and the president are striving to pass some version of the Build Back Better agenda that was killed by West Virginia Sen. Joe Manchin last year. The massive spending measure puts all other potential spending into sharp relief, particularly given most legislators' desire to neither explode the federal deficit nor raise taxes for most people.
Certain items are relatively popular across the board and probably won’t get stripped out; pretty much everyone, for example, agrees that the immigraiton courts and USCIS have to clear massive backlogs, though restrictionists want them to do so mainly by issuing more denials while advocates want positive adjudications. Border security and alternatives to detention are relatively popular among the entirety of Congress, though some Republicans are already up in arms about reductions in the ICE detention bed capacity.
Insofar as there is wrangling over immigration-related funding, it will probably be at the political extremes—very right wing people will call for massively increased enforcement and cartoonishly ballooned CBP budgets to deal with “Biden’s border crisis” or whatever, whereas the most progressive members will probably try to further expand humanitarian interventions and cut down on detention and enforcement even further. All in all, though, the enacted budget on immigration agencies and functions probably won’t look dramatically different from what we have here.
Next Destination
Biden administration plans on ending Title 42 by late May
After months of speculation, the CDC announced today that it will be terminating Title 42 as of May 23, confirming earlier reporting. The administration had initially said it would end the policy by the end of July 2021, but instead extended it, claiming it continued to be necessary due to the spread of new Covid-19 variants. Since then, the CDC has reviewed Title 42 every 60 days.
There are already concerns that ending Title 42 could lead to a massive increase in migrants presenting themselves at the border. Though Title 42 is ostensibly a public health policy, both the Biden and Trump administrations have used it to turn away asylum seekers en masse. Seeking asylum is legal, even when migrants cross between ports of entry.
Thousands of migrants are currently awaiting the policy’s end in Mexican border cities; some have already been expelled under the policy, while others were warned ahead of time that they would be and thus have not attempted to make asylum claims. Per CBS News, the administration is preparing for a “worst-case scenario” in which 12,000 to 18,000 migrants could enter U.S. custody each day.