The Republican proposal to end the government shutdown would supersize Immigration and Customs Enforcement, giving the controversial agency more money than ever before to lock people up.
The Trump administration and congressional GOP allies are pitching legislation to end the longest federal government shutdown in history as a “compromise” with congressional Democrats. But a close examination of the 1,300-page proposal also reveals stipulations that would gut asylum protections for those seeking refuge in the United States—and leave tens of thousands of Central American minors stranded in countries where they face persecution, torture and death.
“This continues a clear pattern: slash refugee numbers both by lowering the overall cap and then by admitting fewer people than allowed under this new cap—whereas when it comes to ICE, the agency seeks to both raise the cap on how many people they can detain, and continually exceeds the congressionally mandated maximum number,” Todd Schulte, president of immigration advocacy group Fwd, told The Daily Beast.
“This fits into their goal of reducing legal immigration avenues while substantially increasing deportations of undocumented immigrants, regardless of these people's longstanding ties to the U.S. or that they lack any non-immigration violations.”
Madhuri Grewal, the federal immigration policy counsel for the ACLU’s National Political Advocacy Department, told The Daily Beast that the proposed legislation is “a sham compromise that weakens the asylum system,” and was clearly written without the input of people who understand immigration law.
“Why are we having a conversation about asylum and the Trump administration gutting asylum in the context of the longest government shutdown in U.S. history?” Grewal said. “This is not the time to be debating these very critical protections for unaccompanied children… coming here seeking asylum.”
ICE’s last budget, passed in March by Congress, gave ICE a record $7.1 billion. The new GOP proposal would balloon the agency to $8.45 billion. It adds nearly $1 billion for the core activities that have led progressive activists and the lawmakers supporting them to call for ICE’s abolition: $4.99 billion for detention and deportation, up from $4.1 billion in March. ICE would also get to hire 2,000 more law-enforcement personnel.
In addition, there’s a $2 million fund for “informants,” to be doled out at the discretion of Secretary of Homeland Security Kirstjen Nielsen. That maintains the snitching budget contained in ICE’s last appropriation, which is a mainstay of ICE funding, however obscure.
A supplemental document specifies that the extra near-billion would fund detention beds for 52,000 people, in line with what the Department of Homeland Security asked for in its fiscal 2019 budget submission. But ICE is already detaining almost that many people right now, without an extra $800 million.
As first reported by BuzzFeed, ICE had 48,019 people in custody as of January 1. Not only is that yet another all-time high for immigration detention—occurring during the shutdown, no less—but it’s vastly above the 40,520 people that congressional appropriators set as a cap in March when it gave ICE $4.1 billion for so-called enforcement and removal operations like detention.
ICE neither stuck to that cap nor explained how it got the money to lock up nearly 8,000 extra people. Immigration rights advocates suspect that the 52,000 detentions funded in the McConnell proposal will be more of a floor than a ceiling.
“One of the reasons ICE is so dangerous is because it doesn't abide by limits placed on it by Congress. Over the past two years ICE has dramatically overspent its detention budget, jailing thousands more people each day than its budget permits and then raiding other accounts such as FEMA to make up for it,” said Heidi Altman, the policy director at the National Immigrant Justice Center.
“This bill gives ICE a nearly $1 billion blank check to jail more asylum seekers and community members—we should be confident that ICE won't feel constrained by even the astronomical 52,000 bed number we see here. The agency will jail that number every day and then keep going, counting on its authority to move money around and raid other accounts to keep driving up the numbers of those behind bars. These numbers represent a slush fund for the mass incarceration of immigrants.”
ICE said it could not provide an updated number of people in its custody due to the shutdown, despite on Jan. 9 providing The Daily Beast with an update of 48,019 people in custody as of Jan. 1. The government was shut down during both of those dates.
‘Protection’ of Minors—By Keeping Them in Danger
The bill’s stipulations include the “Central American Minors Protection Act of 2019,” which would create a “new system” for seeking asylum promised by President Donald Trump in a 20-minute speech outlining the proposal. That act would legally bar minors hailing from El Salvador, Guatemala or Honduras from applying for asylum inside the United States, and instead require them to apply at “a Designated Application Processing Center in Central America.”
The stated purpose of the legislation is to “[reduce] the incentive for such persons to make the dangerous journey to the United States southern border to request asylum.” But immigration attorneys and advocates told The Daily Beast that the bill’s intention is clearly to undercut the ability of asylum seekers to seek refuge, period.
“The effect of this proposal would be to effectively weaponize the asylum system to not serve to protect vulnerable communities like unaccompanied children, but in fact render them even more susceptible to harm, abuse, and persecution,” said Jonathan Ryan, executive director of the Refugee and Immigrant Center for Education and Legal Services (RAICES). “The first and most critical step in not dying in a house that’s on fire is to get out of the house.”
Deterrence, Ryan said, doesn’t work when people are fleeing life-and-death situations.
“When people make the decision to engage in the dangerous journey to the United States, they are balancing the risk of that journey against what is often an immediate threat against their lives,” Ryan said. “For as long as people, including children, must weigh this balance, many people will decide—correctly so—that the safest course of action is to take that journey.”
“The point of asylum is to protect individuals who are in danger in their home country,” said Michael Wildes, an immigration attorney who represented Melania Trump and her family in their immigration proceedings. “Keeping them in danger while processing an asylum application defeats the point.”
Such legislation violates established international treaties preventing the United States from returning those seeking asylum to countries where they may face the risk of persecution, torture or death, and would upend decades of established U.S. asylum law. The Immigration and Nationality Act, stipulates that “any alien who is physically present in the United States, or who arrives in the United States (whether or not at a designated port of arrival…), irrespective of such alien’s status, may apply for asylum.”
The bill instead proposes the creation of processing centers in nine Central American countries, with the intention that Central American minors would leave their home countries for a neighboring nation to declare asylum. Advocates for expanding asylum eligibility told The Daily Beast that the elimination of in-country processing for Central American minors would hobble the entire system—perhaps intentionally.
“What they’re selling as helping with in-country processing is in fact an unworkable program and in exchange they will eliminate people’s ability to claim asylum at the border,” said Schulte, “something that they have been clear is their goal all along.”
Minor children seeking safe haven in the United States would still have another legal option at the U.S. border through seeking Special Immigrant Juvenile Status, wherein minors have to prove in family court that they were abandoned or abused by a parent. But immigration attorneys told The Daily Beast that the SIJS system is notoriously underfunded and over capacity—problems that would only get worse with the proposed asylum restrictions.
“We are already years behind on getting visas available for approved SIJS kids,” said Alicia Perez, an immigration attorney in Texas. “You wait two-to-four years now for a visa to be available.”
Grewal agreed that the bill’s supposed compromises are predicated on other stipulations that would severely undermine the rights of asylum seekers and their families.
“Even the things that are supposedly ‘gives’ from this administration, the quote-unquote protections for DACA and TPS, are hollow,” Grewal said. “It’s very much looking to gut our existing protections in the asylum system.”
The bill would also restrict the number of Central American minors even allowed to apply for asylum annually to 50,000 per year, and place a 15,000-person cap on the number of asylum applications that could be approved.
This cap “will make successful application incredibly challenging, and will be administered by DHS appointees and not a judge,” said Schute. “The summary of these asylum changes is a massive restriction and essentially elimination of the asylum system at the southern border—something that they have been clear is their goal all along.”
Some parts of the asylum overhaul appear contradictory, even mutually exclusive. Although the legislation grants unaccompanied minors the right to legal counsel at no expense, having no parent or guardian in the United States “capable of taking custody and care of the minor upon arrival”—that is, being an unaccompanied minor—makes an applicant ineligible for asylum.
“The way it’s drafted is really confusing,” said Grewal. “It seems like no immigration advocates were allowed to weigh in or provide logistical assistance, which is why the language of the bill is so contradictory.”
One issue in the draft could create a true crisis at the border, Grewal said, noting that Central American children would be unable to apply for asylum at the U.S. border the moment the bill became law—but that the processing centers meant to handle their asylum claims wouldn’t be operational for up to nine months.
“If it’s not operational, what are these children going to do at the border?” Grewal asked. “It’s not workable.”
The bill would also move the adjudication of asylum cases for Central American minors from the jurisdiction of immigration judges and courts, and instead would be decided by Department of Homeland Security “asylum or refugee officers,” which Bridget Crawford, legal director of LGBT immigrant-rights group Immigration Equality, said would “eviscerate critical protections for asylum seekers.”
“Our clients face anti-LGBTQ violence and persecution every day and cannot safely wait for asylum in their countries of origin,” Crawford said. “Trump’s so-called compromise bill is a sham.”
The bill also specifically eliminates judicial review of asylum cases for minor children in the region, mandating that “no court or immigration judge shall have jurisdiction to review a determination of the Secretary of Homeland Security.”
“Taking immigration and federal courts out of the process is a recipe for frivolous denials,” said Wilde. “The only hope most applicants have is in immigration court, and removing that remedy will significantly reduce the number of approved asylum applications, which is ultimately what this administration wants.”