This sponsored column is by Law Office of James Montana PLLC. The opinions expressed in Statutes of Liberty are solely the opinions of James Montana, the firm’s managing attorney, and should not be ascribed to any other attorney at the firm. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
The U.S. immigration system suffers from a persistent and (to date) irremediable defect: a huge mission, but insufficient resources to actually accomplish it. The Big Beautiful Bill Act (BBBA) changed that, for the foreseeable future. ICE (Immigration and Customs Enforcement) will now receive $28B annually, more than the FBI, DEA, ATF, U.S. Marshalls and Bureau of Prisons combined.
Pre-BBBA, the biggest problem, from the perspective of immigration restrictionists, with the U.S. immigration system was lack of detention capacity. The BBBA attacks that squarely by tripling ICE’s detention budget, which is going to be enormous both in absolute and relative terms – 311% of its previous detention budget, and more than twice the budget of the entire BOP. ICE estimates that it will be able to detain about 116,000 people at a time, with the new money – more than twice its current capacity – and that doesn’t even count generous extra funding for reimbursement of state law enforcement agencies, which will be paid for housing immigration detainees.
So, the new system should have more detention capacity. How does ICE plan to use it? The answer is simple: they plan to fill the beds, both to increase the system’s deterrence for future migrant flows and to ensure that removal orders are actually executed.
Acting ICE Director Todd Lyons provided one early sign of how ICE plans to fill the bed in a memorandum released next week. Effective immediately, ICE takes the position that anyone who crossed the U.S.-Mexico border illegally, no matter when, should be detained for the pendency of their deportation proceedings – which can take years. This breaks with decades of practice. In the current system, immigration judges conduct bond hearings, in which they consider whether the respondent is a flight risk, and then set bond accordingly – much like the bail hearings that Americans are more familiar with, from the criminal context. In the new system, if the Lyons memorandum holds, the Department of Homeland Security – not an Immigration Judge – will make that determination, and, with rare exception, all who crossed the border illegally will be detained.
DHS crowed about this on its Twitter feed, which has become increasingly bumptious over the past six months. Our job, as your friendly local immigration lawyers, is not to “cry wolf,” as DHS put it, but simply to report the facts to you. The BBBA provided the funding, and the Department of Homeland Security is implementing a new, massively expanded detention system. We expect that this detention system will face legal challenges, but will, by and large, survive them. The Supreme Court has repeatedly held that civil immigration detention is constitutional. We will soon find out whether it is practically possible on a grand scale.
