One of the more peculiar provisions in U.S. immigration law is the little-known requirement that 34,000 potential deportees be held in federal detention centers each night. The reason for this is murky; the original language was written into the federal budget by Sen. Robert Byrd (D-W.Va.) in 2009 and, as bizarre as it seems, has been there ever since.
Think about the policy implications of that. If Immigration and Customs Enforcement agents detain someone suspected of being in the country illegally, or someone whose legal status is jeopardized by a potentially deportable arrest, the decision about whether that person should be held or released on bond is budgetary, not judicial. This is preposterous, unjust and expensive, needlessly costing U.S. taxpayers hundreds of millions of dollars a year.
Yet that is what Congress has mandated, and administration officials have been reprimanded when they have allowed the numbers to fall significantly below the quota. Despite the fact that illegal immigration has declined substantially in recent years, the Department of Homeland Security continues to hold about 34,000 people on most nights.
During testimony in March before the House Appropriations Committee, Homeland Security Secretary Jeh Johnson suggested that he would like to treat the 34,000-bed mandate as something other than a quota. Johnson said he believed the requirement referred to the number of beds that must be available, not to the number of people who must fill them. House Republicans appeared unmoved, countering that Johnson didn't have the authority to interpret the budget law as he sees fit, and indicating that they would fight any effort to change the requirement.
The solution is to change the budget wording to make it both clear and sensible. For Congress to set a quota of how many people should be jailed each night conflicts with Americans' basic notions of justice. Whether someone requires detention should be decided by need, as calculated by judges and others charged with enforcing immigration laws, not to by an arbitrary congressional budget mandate.
The quota reflects a broader, troubling aspect of federal immigration policy, which operates under a presumption of detention rather than a presumption of innocence.