Catch and Release

For the last 18 months, the Homeland Security Department's Immigration and Customs Enforcement agency has held 22,000 to 23,000 illegal immigrants in its detention system, despite being funded to detain only 19,444. The now-defunct Immigration and Naturalization Service, one of ICE's predecessor agencies, was long accustomed to mismatches between detention resources and illegal immigrant apprehensions. In that tradition, ICE detention managers have stretched their budgets to detain as many illegal immigrants as possible, a priority of the Border Patrol and ICE criminal investigators, who apprehend them. But in early June, ICE's overtaxed detention system began to crack. The agency quietly began releasing illegal immigrants from federal and local detention centers, because it no longer could afford to detain them.

"Currently we are exceeding the level our resources can support nationwide," wrote Victor Cerda, ICE's acting director of detention and removals, in a June 10 memorandum to regional detention officials. "Discretion and financial constraints shall be considered when deciding whether to accept nonmandatory aliens for detention." Certain illegal immigrants must be detained by law, those charged with aggravated felonies, for example. Cerda's directive affects how ICE treats those charged with lesser offenses, such as simple assault. They are detained at ICE's discretion; generally, about 15 percent of all aliens in the detention system are "nonmandatory" detainees, according to Anthony Tangeman, a former director of detention and removals at ICE.

The release policy has led the agency to curtail enforcement, says an agent in ICE's New Orleans district, which encompasses Alabama, Arkansas, Louisiana, Mississippi and Tennesee. But Russ Knocke, an ICE spokesman, denies any let-up in investigations. "We continue to aggressively and proactively enforce immigration laws," he says.

In the field, Cerda's order was accompanied by tight quotas on the number of immigrants to be held. In Tennessee and Arkansas, ICE officials were told to cut their detainee population to 50 by July 1 , according to an internal e-mail from James Mounce, an ICE detention official in Memphis, Tenn., obtained by Government Executive. To meet the quota, managers planned to deport as many immigrants as possible. "In order to stay below that limit and try to keep as many beds free as possible, we will probably [deport] aliens twice per week," wrote Mounce in the e-mail dated June 21.

Other illegal immigrants also are being let go. In ICE's Philadelphia district, which includes Pennsylvania, Delaware and West Virginia, officials released 77 detainees during the last week in June, according to Thomas Hogan, warden at Pennsylvania's York County Prison, which houses some ICE detainees. In the New Orleans district, officials are releasing many aliens who are not required by law to be held.

Nationwide, the number of ICE detainees is dropping. On June 25, ICE had 21,610 illegal immigrants in its detention system, down from nearly 23,000 on June 14, according to Knocke. The ICE spokesman stressed that officials still are detaining immigrants who pose a threat to the community, and may not trim the detainee population to the 19,444 level. "It might not necessarily mean getting down to that hard number," he says. "It might mean we find other ways to manage within budget."

Homeland Security officials describe the releases as prudent management. "They've been running at 22,000, 23,000 every day, so that is tens of millions of dollars more than they are funded for," says a senior Homeland Security official. "You need to start managing those numbers down." Some detainees are released with orders to appear at immigration court hearings, and some are being monitored through alternative detention programs, says Knocke. For example, Behavioral Interventions Inc., a Boulder, Colo.-based contractor, is using home visits and other techniques to keep tabs on illegal immigrants in eight cities.

But the releases have angered some ICE personnel, who have had to let go illegal immigrants they believe should be detained. "Many of these aliens have extensive criminal histories," says an agent in the New Orleans district. And ICE's maneuver came as a surprise to members of Congress, who question why the cash-strapped agency didn't ask for more money before it started releasing immigrants. "If the [fiscal 2004] budget does not adequately cover the needs of the detention and enforcement programs, it is imperative that Congress be informed of the situation," wrote Sens. Jeff Sessions, R-Ala., Chuck Grassley, R-Iowa, and James Inhofe, R-Okla., in a June 30 letter to Michael Garcia, assistant secretary for ICE.

Left unclear is why ICE had to release any illegal immigrants at all. It has faced an overflowing detention system before-the agency ended fiscal 2003 holding thousands more than it was budgeted for-but officials diverted funds from other programs to pay for the excess, says David Venturella, a former ICE detention official.

This year, ICE apparently has no extra funds to tap. In his June 10 memo, Cerda ordered subordinates to "manage within your allocated budget resources," and to "not exceed your monthly allocations." ICE also has been bedeviled by accounting problems that have left officials wondering just how much money they have to work with, says a former Homeland Security official who spoke on condition of anonymity. "You never knew what was going to pop up in terms of the accounting data," says the official. "A lot of times you didn't know what to believe."

Venturella says ICE and the Border Patrol should prioritize arrests to stem the flow of illegal immigrants. When it was part of INS, the Border Patrol routinely launched enforcement initiatives without checking to see whether detention and removal officials had enough space to house those apprehended. "There was never any integration of the strategy, never any integration of the enforcement priorities," says Venturella. "Everyone developed their budgets independent of each other."

The problem has persisted at Homeland Security, says Venturella. In its first year, ICE has unveiled a raft of enforcement initiatives such as Operation ICE Storm, an effort to crack down on immigrant smuggling and violent crime in the Phoenix area. Venturella thinks these operations are well-intentioned, but says they amount to an "unfunded mandate" on the detention system, which has had no budget increases for two years.

One of Venturella's long-standing goals was to give detention and removal a seat at the table when operations are being planned. Last fall, Homeland Security officials appeared close to doing just that. Staffers circulated a draft memorandum from Asa Hutchinson, undersecretary for border and transportation security, directing ICE and another DHS bureau, Customs and Border Protection, which includes the Border Patrol, to coordinate initiatives with detention officials.

"Planning of any such operation must include involvement of ICE [Detention and Removal] at the earliest stages of planning to ensure proper coordination and consideration of the available detention bed resources," states the draft memo. But the directive never was sent. "Had that memo been issued, again, it would have mitigated the impact of the reduction exercise they're going through right now," says Venturella. Sources say Hutchinson likely will issue the planning directive in some form. "You've got to coordinate the whole process, from apprehension to removal," says the senior homeland security official.

In the meantime, ICE investigators have taken a first stab at coordinating operations with their detention colleagues. In a June 24 memorandum, Marcy Forman, acting director of ICE investigations, told her special agents in charge to contact detention officials "during the earliest possible stage of planning for an operation," to let them know how much detention space will be needed.