In 2009, Congress passed a statutory quota requiring Immigration and Customs Enforcement to keep 34,000 immigrants in jail on a daily basis. But immigration patterns are cyclical, and apprehensions—with the exception of an influx of Central Americans in the Rio Grande Valley—are at a 40-year low. Nevertheless, congressmen like John Culberson (R-Houston) want ICE to keep the detention facilities at capacity at all times. Apparently, Culberson wants immigrants locked up even if there’s no legal reason to do so.
Culberson got into a heated debate last week with Sarah Saldaña, the new director of ICE, during an appropriations hearing, over locking up more immigrants in the country’s growing patchwork of private for-profit prisons. Culberson sits on the subcommittee that oversees funding for ICE and Saldaña to her credit pushed back.
In Congress, Geo Group, Corrections Corporation of America and other private prison companies spend millions on lobbying. Much of that lobbying is focused on powerful members of the appropriations committee like Culberson, who received campaign contributions from CCA, which runs detention facilities including Dilley’s controversial South Texas Residential Center, which detains women and children.
A new study by the nonprofit Grassroots Leadership finds that the private prison industry has increased its share of immigrant detention beds by 13 percent since the 2009 quota was passed. For-profit corporations now operate sixty-two percent of ICE immigration detention beds.
At one point during the U.S. House Appropriations Committee hearing last week, Saldaña tries to explain to the tea-partier Culberson that she can’t put people in detention “just for the heck of it.”
Culberson: What is ambiguous?—I don’t see that it’s ambiguous—the requirement that you use not less than 34,000 detention beds. That’s statutory in the Homeland Security bill.
Saldaña: Yes, I have it right here—it says, “provided further that funding made available under this heading…”
Culberson: Is there anything about that that’s discretionary or optional?
Saldaña: No, we have maintained that capacity.
Culberson: Right, But you’re not using it. Right now you’re at about 26,000.
Saldaña: Well, that’s dictated sir by the flow of immigrants. As you know Customs and Border—
Culberson: There’s no shortage of folks coming over the border illegally.
Saldaña: Right, and we need to apprehend them and find them. But as you know at the border, apprehensions are down—the first line of defense is CBP—is down about 24 percent. So that’s going to obviously affect—since we get 60 percent of beds—or apprehensions—from CBP, that’s going to affect that. Plus, it’s seasonal. This is a seasonal flow and we’re just getting to the warmer months where the migration patterns in the past have shown us there might be an increase in migration.
Culberson: So is it optional for you to use those 34,000 beds in your opinion?
Saldaña: Optional? It’s not optional to have them available.
Culberson: But it’s optional whether or not you use them?
Saldaña: It’s not optional, sir. We have those and we will use those to the extent that we make decisions that someone needs to be detained. If you’re asking me whether it is more important to fill a bed than it is to do it right, then I’m going to have to go with doing it right. And that is make our decisions on the basis of—just like the federal courts do—
Culberson: But if it’s not clear I mean, whereas, policy makers and statute drafters wrote this so it is not ambiguous, it’s not discretionary, it’s not optional. We want you to use 34,000 beds.
Saldaña: That’s absolutely clear to me.
Culberson: You’ve got plenty of demand. You’ve got plenty of demand—
Saldaña: But sir, we don’t detain people just for the heck of it.
Culberson: I know that, but—
Saldaña: We detain people based on what the law tells us, and that is: Is this person a flight risk? And is this person a threat to public safety? Those are the decisions that our very seasoned officers are out there making every day. And from what I have seen and observed, they are making the right decisions.
Culberson: I feel very confident you could find an extra 9,000 criminal aliens that needed to be detained to fill those beds in a heartbeat.
Saldaña: We’re working on that. That’s part of what Operation Cross Check was.
Culberson: But you feel like this is not a requirement to use the beds. So perhaps the language might need a little tweaking.
Saldaña: That’s not what I intended, I said it is capacity in my view—
Culberson: Well the president thinks statutes are optional and subject to his discretion. He’s obligated by the constitution to take care the laws are faithfully executed. He’s clearly in violation of that. You’ve told us that you don’t think this policy the president has issued is contrary to the law. We as policy makers and legislators are here—the law enacted by Congress that the president and agencies are to follow. Not a policy directive or memorandum sent out by the head of an agency. It is the law enacted by Congress that you and the president are obligated to follow. And there’s just a fundamental disagreement here. I think it’s at the root of what’s outraged the country, quite frankly, from coast to coast. The president systematically and repeatedly refuses to enforce the law as written and you just confirmed that for us today. It’s upsetting and concerning because we in Texas feel the brunt of this with the number of criminal aliens crossing border, drug runners, killers, sex traffickers. It’s appalling and outrageous and no one is more concerned about it than the communities—for example our good friend U.S. Rep. Cuellar represents along the Rio Grande river. Laredo is a ghost town as you know; it’s a terrible situation. We expect you to follow the law as written and when something says “shall. “Shall” is not optional.
Saldaña: I didn’t say that, sir. I really said—
Culberson: But you don’t feel like you need to use them.
Saldaña: No, sir. We are working to use them. Every day people are out there trying to find—particularly with respect to people with criminal records and those who meet our priorities. We are trying to find those folks if CBP doesn’t hand them to us. To me the important thing is to make the right decisions as required by law as to whether we can detain someone or not. It’s not the sole purpose and goal to fill a bed; it’s to fill it in the right way. That’s my view.