ICE to Cut More Detention Beds as Florida Court Ruling Falls Short

Despite tidal waves of illegal aliens flooding America’s southern border – and no end in sight — U.S. Immigration and Customs Enforcement (ICE) is budgeting for fewer migrant detentions in fiscal 2024.

The agency said it intends to reduce its “average daily population” (ADP) by 26 percent – from 34,000 beds to 25,000.

But wait, didn’t a federal court, just this month, strike down catch-and-release policies that have failed to detain illegal border crossers and enabled millions of migrants to enter the country? How can a scheduled reduction in detentions stand up?

Well, it’s complicated.

In his decision in Florida v. U.S., District Judge T. Kent Wetherell likened the Biden administration’s dubious “parole” program to a flashing sign that advertises, “Come In, We’re Open” and reduces the southern border to a “meaningless line in the sand.”

But despite the sharp language from the bench, “The Florida case did not have a lot of teeth,” said Chris Hajec, director of litigation at the Immigration Reform Law Institute (IRLI). “The judge just vacated the parole policy, but did not enjoin it, because plaintiff [Florida] did not ask them to.”

“Nothing in Judge Wetherell’s order requires the Department of Homeland Security (DHS) to take any affirmative action, much less detain aliens,” added Matt Crapo, senior counsel at IRLI, which is FAIR’s legal arm.

Though Wetherell did find that DHS had adopted an unlawful non-detention policy, the judge concluded that the policy was not “judicially reviewable.”

In layman’s terms, that means the non-detention policy (or preference) was not mandated by a single reviewable agency action, but instead was the result of implementing several discrete agency actions, Crapo explained. “Judge Wetherell said this was a ‘close question,’ meaning he isn’t very sure that the non-detention policy is not reviewable,” he said.

Legal rigmarole aside, ICE’s plan to further cut detention beds (the agency reduced capacity in fiscal 2023 as well) will have a serious impact on Customs and Border Protection (CBP), which does not maintain long-term detention facilities. Because CBP relies on availability of ICE beds, ICE’s downsizing will further constrain CBP’s ability to detain border crossers.

Generally speaking, aggravated felons, known or suspected terrorists and people seeking asylum are subject to mandatory detention. But with regard to asylum seekers, mandatory detention requirements, passed in the wake of the 9/11 attacks, have never been meaningfully complied with.

What’s more, provisions in other so-called mandatory detention rules even permit DHS to release individuals who should be subject to mandatory detention.

House Judiciary Committee Chairman Jim Jordan, R-Ohio, stated this week that ICE has left “more than 11,000 available detention spaces empty during a period of skyrocketing illegal immigration.”

While Jordan demands answers, the half steps in the Florida decision offer a plausible explanation why Department of Justice attorneys opted not to appeal Wetherell’s ruling. Now, with the prospect of fewer and fewer beds in ICE detention, this administration’s “Come In, We’re Open” sign is flashing brighter than ever.