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A newly-released document has exposed the Trump administration’s latest move to circumvent Congress by taking hundreds of millions of dollars from disaster relief and other domestic programs to fund more abusive anti-immigrant policies. Before hurricane season, the administration is risking public safety, recklessly taking funds from the Federal Emergency Management Agency (FEMA) and other agencies to increase mass incarceration and block asylum seekers from entering the United States. As NBC reported, the Department of Homeland Security (DHS) notified Congress that it will transfer $271 million to expand capacity to jail more immigrants and to fund the administration’s Return-to-Mexico program (Migrant Protection Protocol, MPP), which blocks individuals’ access to asylum and forces asylum seekers to remain in uncertain and violent conditions.

Déjà vu - DHS swindles Congress again to grow its immigration prison infrastructure

Last year, as hurricane season was approaching, the administration took nearly $10 million from FEMA to fund Immigration and Customs Enforcement (ICE) detention beds above the appropriated levels. The move sparked public outrage, including from us at the National Immigrant Justice Center, and demands that Congress take action to prevent a repeat swindle. Yet here we are again, a year later, and the administration is stealing from FEMA, the U.S. Coast Guard, and the Transportation Security Administration (TSA) to fund immigration detentions, continuing a dangerous trend of bypassing Congress to fund abusive policies.

The first component of this year’s funds transfer compensates ICE for its massive overspending on immigration detention. In the DHS Appropriations Bill for 2019, Congress directed the Trump administration to reduce detention from then-historical highs of 49,000 jailed per day to 40,500 by the end of FY2019. Instead, ICE ramped up, now jailing over 55,000 people each day, up from an average of about 34,000 over the course of the previous administration. ICE is jailing an unprecedented number of people--thousands more than Congress has authorized--and is blatantly and continually defying and undermining Congress to do it. These numbers reflect the administration’s deep commitment to jail more immigrants--including asylum seekers and long-time community members--and jail them for longer, despite cheaper and more effective and humane alternatives. Now, DHS is abusing its transfer and reprogramming authority to circumvent Congress by snatching money from other accounts to pay for this massive overspend on unauthorized detention levels.

More funds for ICE is a recipe for more abuse and mistreatment of vulnerable populations. Allowing this shady funding transfer will allow ICE to carry out more raids and family separations. There is no policy justification for the current detention levels, and it is a dangerous practice for ICE to subvert the authority provided to Congress by the Constitution to appropriate funds to the executive branch. If this trend continues, DHS will likely intentionally overspend again next year unless Congress puts a stop to it -- by putting key transfer restrictions in place. Otherwise, the cycle will continue under a cloak of impunity, with immigrants paying the price in jails where they are forced into unpaid labor and subject to abuse that amounts to torture.

Funding for MPP (remain in Mexico program)

The second component of the administration’s transfer notification shifts $155 million from FEMA Disaster Relief Funds to expand the harmful and illegal MPP program at the border. The additional funding for MPP will enable DHS to arbitrarily force more migrants to wait in Mexico while their cases are processed. More than 35,000 people have been returned to Mexico through the program, all at constant risk of robbery, assault, extortion, kidnapping, and homicide in parts of Mexico notoriously dangerous for migrants. Those awaiting their court dates struggle to develop their asylum case without access to U.S. attorneys or legal service organizations. These policies are routinely forcing migrants who cannot wait safely in Mexico to cross between ports, risking death and criminal prosecution.

Transferring funds to MPP is also of questionable legality. The DHS Appropriations Act states that “no funds shall be reprogrammed within or transferred between appropriations based upon an initial notification provided after June 30.” The law makes an exception for requests after June 30 for transfers of funds into ICE’s detention accounts or to address emergent needs that represent imminent risk or life or property. Neither exception is met here, and DHS’s transfer notification (dated July 26, 2019) doesn’t even bother to attempt to justify its failure to comply with statutorily-imposed timeliness obligations.

The new funds will allow DHS to block more asylum seekers from fair legal processes, at the expense of victims of impending natural disasters. The document states that “[A]bsent significant new catastrophic events,” DHS believes resulting disaster relief fund base will be sufficient to support operational needs. The administration is well aware that a new catastrophic event is pending, as Trump is tweeting about the pending hurricane in Puerto Rico.

Congressional Action

Importantly, some Members of Congress have signaled opposition to this transfer. However, under the current legal structure, DHS can still go against Congressional intent and move forward with the transfer.

Now is the time for Congress to reassert its power to hold the executive branch accountable by blocking DHS from overspending to expand imigration jails and further ramp up border militarization and community raids. Congress can start by proactively ensuring that enforcement agencies do not overspend under any initial short-term spending bill.

Members of Congress should:

  • Publicly denounce DHS’s transfer and reprogramming.
  • Insist on a negotiated 2020 spending bill that cuts ICE and CBP’s budgets and finally puts an end to DHS’s ability to transfer and reprogram funds into its detention and enforcement  accounts. In the event of a short-term spending bill (Continuing Resolution) for the DHS appropriations bill in FY20, Congress must include clarifying language that precludes DHS from spending funds above the amounts appropriated for detention and enforcement in the FY19 bill, thereby rejecting further abuse of the appropriations  process.
  • Insist on transparency measures to ensure that transfer and reprogramming notifications and other critical budget documents with public significance be promptly made accessible to all members of Congress and the public.

TAKE ACTION: Tell your members of Congress to cut funding for jailing and deporting immigrants and families, and include measures in the next budget that prevent DHS from stealing money from other agencies to fund its anti-immigrant agenda!

Jesse Franzblau is a senior policy analyst at NIJC.