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Immigration and Customs Enforcement (ICE) is now incarcerating around 10,000 more people than Congress has approved. Congress has said that ICE must stop increasing beds in detention facilities, but the overspending continues. Where is the money coming from?

U.S. Customs and Border Patrol detention center.
U.S. Customs and Border Patrol

1) Transfer and Reprogramming Under an Appropriations Bill

When Congress allocates funding for agencies, it sometimes allows for flexibility in case unforeseen circumstances arise. This means that money can be shifted from one account into another outside the normal congressional appropriations process. This authority, however, is intended to be an unanticipated one-time occurrence.

The Department of Homeland Security, which ICE falls under, has consistently abused this authority to move money away from FEMA, the Coast Guard, TSA, and the U.S. Air Marshals—all so they can expand immigrant detention against congressional will. This has happened for the past four fiscal years now.

2) Anomaly Requests Under a Continuing Resolution

As Congress negotiates annual funding levels, they will often pass a short-term spending bill called a “continuing resolution” to keep the government funded while they work out an agreement. Continuing resolutions are meant to be simple extensions of previously approved funding, but the administration can request additional funding for agencies through an “anomaly.” ICE has repeatedly requested anomalies for the sole purpose of expanding the number of people in immigrant detention, far beyond what was provided by Congress the prior year.

3) Exception Apportionment from the Office of Management and Budget

ICE has increasingly gotten what is called an “exception apportionment” under continuing resolutions. This means they effectively get an advance loan from the Office of Management and Budget, under the assumption that they will spend less throughout the remainder of the year. Each time this has happened however, ICE expands the semi-permanent detention infrastructure and then uses that precedent to demand even more money from Congress when the spending bill expires.

ICE’s overspending and lack of accountability is helping fuel the crisis at the border—not solve it. Your member of Congress will have to make choices on these spending bills to fund the government past Oct. 1. You can urge them to support cancelling the administration’s ability to move around money into detention and border wall. Write them today.

Update: Congress passed a continuing resolution, or short-term spending bill, until Nov. 21. It did not include additional money for ICE and CBP, however, it also did not include a guarantee that ICE and CBP will not continue detaining more than 45,000 people daily (the limit Congress imposed but the administration keeps exceeding). We urge Congress to ensure that the next spending bill prohibits DHS from continuing to overspend on enforcement.

Karla Molinar-Arvizo

Karla Molinar-Arvizo

Program Assistant, Immigration and Refugee Policy
Karla was the Program Assistant for Immigration and Refugee Policy. In her work, Karla tracked key legislation on congressional appropriations and funding, collaborated with partner organizations, and uplifted the values of FCNL through congressional visits and lobbying.

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