5

Budgeting for DOJ Immigration Enforcement

This chapter examines the process used to budget for the U.S. Department of Justice (DOJ) components of the immigration enforcement system and its outcomes to answer the following questions1:

 

•   What is the observed pattern of budget estimates in the past decade?

•   Is there a pattern of large changes, requiring adjustments in the amounts requested or appropriated, or reprogramming within appropriated totals, after the initial budget request?

•   How have the department and congressional decision makers dealt with changes arising from reestimates of resource needs?

•   What explanations are offered by those who were involved?

 

We then analyze this information to address the following sets of questions:

 

•   Recognizing that there is no readily available objective standard or benchmark that can be applied to compare budget outcomes for the immigration enforcement system to those for other government functions, is there any identifiable pattern of rees-

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1This discussion excludes the budget of the federal court system (i.e., the Judiciary), which is administered as a separate branch of government. In recent years, appropriations for the federal judiciary have not been under the jurisdiction of the same appropriations subcommittees of Congress as those responsible for the DOJ.



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5 Budgeting for DOJ Immigration Enforcement T his chapter examines the process used to budget for the U.S. Depart- ment of Justice (DOJ) components of the immigration enforcement system and its outcomes to answer the following questions1: • What is the observed pattern of budget estimates in the past decade? • Is there a pattern of large changes, requiring adjustments in the amounts requested or appropriated, or reprogramming within appropriated totals, after the initial budget request? • How have the department and congressional decision makers dealt with changes arising from reestimates of resource needs? • What explanations are offered by those who were involved? We then analyze this information to address the following sets of questions: • Recognizing that there is no readily available objective stan- dard or benchmark that can be applied to compare budget out- comes for the immigration enforcement system to those for other government functions, is there any identifiable pattern of rees- 1 This discussion excludes the budget of the federal court system (i.e., the Judiciary), which is administered as a separate branch of government. In recent years, appropriations for the federal judiciary have not been under the jurisdiction of the same appropriations subcom - mittees of Congress as those responsible for the DOJ. 73

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74 BUDGETING FOR IMMIGRATION ENFORCEMENT timation and changes from the initial budget request to final appropriations? • What are the major sources of reestimates or changes? Do these mainly arise from uncertainties inherent in the budgeting process, from technical problems such as inadequate information or inap- propriate bases for developing and justifying amounts, or from institutional factors affecting coordination and communication? • Is there evidence to suggest that the split of responsibilities for immigration enforcement after 2003 (with establishment of the Department of Homeland Security [DHS]) is associated with the pattern of reestimates or changes from the initial request to sub- sequent use or actual obligation of appropriated funds? RECENT HISTORY: OVERVIEW DOJ Structure and Responsibilities At the start of the administration of George W. Bush, the immigration enforcement functions of the federal government were largely housed in DOJ, with roles for multiple agencies. Coordination of the department’s activity was traditionally handled at the senior levels in the department, by either the associate or deputy attorney general. A Detention Planning Committee, for example, chaired by the deputy attorney general, met regularly during this period. The creation of the Office of the Federal Detention Trustee (OFDT) in September 2001 was aimed in part at per- forming this type of coordination, particularly for the bed space and other needs for people detained by federal authorities for immigration as well as other federal offenses. The DOJ’s internal coordinating process faded away as OFDT ramped up its activities. Then, less than 2 years later, the major reorganization of the domestic law enforcement functions of the federal government resulted in the creation of DHS. DOJ was then left with only certain pieces of the federal immigration enforcement function—those relating to civil legal proceedings, criminal prosecutions, detention, and long-term incarceration. Hence, since the creation of DHS in March 2003, DOJ has had responsibility for managing the resource needs of the “downstream” immigration enforcement agencies. At a headquarters level, coordination of the resource needs of these DOJ immigration enforcement components both in the department and with DHS agencies has most often been on an ad hoc basis, and at times it has been close to nonexistent.

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75 BUDGETING FOR DOJ IMMIGRATION ENFORCEMENT Overall Budgets As previously noted, the past decade saw a surge in immigration enforcement activity, with bookings for immigration-related offenses by the U.S. Marshals Service (USMS), for example, growing by 241 percent from 2001 to 2009. This rapid growth in enforcement has had widely varying effects on the five DOJ agencies that are the focus of this review. In addition to USMS, OFDT has been buffeted by the ebb and flow of immigration enforcement initiatives and surges in immigration offenders processed by the system. In contrast, the Executive Office of Immigration Review (EOIR) has seen a steady growth in resources but without the swings in budget levels that have characterized OFDT. Although they have an important role in immigration enforcement, the U.S. Attorney’s Office (USAO) and the Bureau of Prisons (BOP) deal with a much broader range of law enforcement and administration responsibilities. Although their budgets have occasionally benefited from funding initiatives related to immigration and border protection, they, like EOIR, have managed their immigration enforcement functions without special budget actions (supplementals, reprogramings, transfers) to adjust resource levels. As shown in Table 5-1, the five DOJ agencies with immigration enforcement responsibilities will spend (i.e., obligate) an estimated nearly $2.1 billion in fiscal 2011.2 Spending by the two DHS agencies with immi- gration enforcement responsibilities, the U.S. Customs and Border Pro- tection (CBP) agency and the U.S. Immigration and Customs Enforce - ment (ICE) agency, will total an estimated $15.4 billion in the same year; However, an estimate of what portion of that total amount will be used for immigration enforcement is not available.3 These two DHS agencies and their DOJ immigration predecessor agency, the Immigration and Naturalization Service (INS), have dramatically stepped up immigration 2 Because the agency budgets primarily involve funding for personnel and support and contracts for detention and medical services from nonfederal sources, nearly all of these obligations would result in outlays (cash disbursements) in the same fiscal year or the next (typically estimated at 90 percent in year 1 and 10 percent in year 2). 3 Using data supplied by the U.S. Office of Management and Budget, the committee es - timates that 73 percent of ICE’s $5.5 billion appropriation (excluding fee and trust funded activities) for fiscal 2011 will be allocated to immigration enforcement. However, for CBP, because immigration enforcement is integrated with customs and other law enforcement responsibilities at the ports of entry, the committee was unable to determine what portion of the agency’s personnel and other resources is devoted exclusively to immigration enforce- ment. CBP’s total appropriation for fiscal 2011 was $9.9 billion.

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76 BUDGETING FOR IMMIGRATION ENFORCEMENT TABLE 5-1 DOJ Immigration Enforcement, Budgets and Obligations, 2011 Budget DOJ Agency ($ in millions) Detention Trustee (budget authority) 1,518.7 Estimated Immigration Enforcement (obligations) 607.5 Salaries and Expenses, U.S. Marshals Service (budget authority) 1,125.8 Estimated Immigration Enforcement (obligations) 450.3 Administrative Review and Appeals (EOIR and OPA) (budget 300.7 authority) Estimated Immigration Enforcement (obligations) 298.0 Salaries and Expenses, U.S. Attorneys (budget authority) 1934.0 Estimated Immigration Enforcement (obligations) 75.4 Federal Prison System, Salaries and Expenses (budget authority) 6,295.0 638.9 Estimated Immigration Enforcement (obligations) Total Estimated Immigration Enforcement Obligations, DOJ 2,070.1 NOTES: Estimates based on share of workload attributable to immigration enforcement related activities of these five DOJ agencies. Excludes construction activities of the U.S. Marshals and Bureau of Prisons. DOJ = U.S. Department of Justice, EOIR = Executive Office of Immigration Review, OPA = Office of Public Affairs. SOURCES: Data from the 2011 U.S. Department of Defense and Full-Year Continuing Appropriations Act (P.L. 112-10) and U.S. Department of Justice, Justice Management Division (personal communication). enforcement over the past 10 years.4 Increasing enforcement at DHS has had significant effects on the five DOJ agencies with important immigra - tion responsibilities. Table 5-2 below tracks the budgets for the DOJ agencies with border security responsibilities. It shows the amounts initially requested by the department (in the President’s budget) and the amounts initially provided by Congress (regular appropriation), typically in the annual appropria- tions bills (formerly, for the Departments of Commerce, Justice, State, and related agencies and, more recently, for the Departments of Justice, 4 The number of Border Patrol agents, for example, has more than doubled, from around 10,000 in fiscal 2004 to more than 20,500 in fiscal 2010 (U.S. Department of Homeland Se - curity, 2011a, p. 66).

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77 BUDGETING FOR DOJ IMMIGRATION ENFORCEMENT Commerce, and science agencies), although in several years that bill was consolidated with other appropriations bills in an omnibus appropriation bill. Also shown are any further actions taken by Congress to make added (supplemental) appropriations, approve of internal reprogrammings or transfers of funds across DOJ agencies, or reduce the amounts already appropriated by enacting rescissions of appropriated funds.5 The rest of this section examines each of the five DOJ agencies in more detail. U.S. Attorney’s Office USAO spends only 3-4 percent of DOJ’s total immigration enforce- ment resources (i.e., the $2 billion noted above). Its role begins once DHS personnel have detained or arrested a person for an immigration offense. U.S. attorneys must make determinations about whether to prosecute the person criminally, although civil actions can be brought as well. Although the 94 U.S. attorneys offices account for only a very small portion of DOJ’s immigration enforcement budget, the number of criminal proceed - ings involving immigration offenses has been rising sharply, particularly in offices located along the Southwest border. Immigration cases, for example, accounted for 30 percent of the new flow of criminal cases into U.S. attorneys offices nationwide in 2006 and 2007, 36 percent in 2008, 40 percent in 2009, and 44 percent in 2010. Over the 10-year period 2001- 2010, criminal immigration case filings by U.S. attorneys increased by 138 percent nationwide. In contrast, civil immigration cases and proceedings have absorbed a much smaller share of their caseload. Although the num- ber of civil proceedings grew briefly in 2008, it has recently fallen back to levels below those in 2001 (Justice Management Division, DOJ, personal communication).6 Appropriations for the U.S. attorneys grew steadily over the 2001- 2010 period (see Table 5-2), with rapid growth in criminal proceedings serving as an important component of the department’s justification for supporting growth in that appropriation account, which is funded at $1.9 billion for 2011. Budget justifications over the period note that the criminal immigration case workload of the U.S. attorneys is very sensi- tive to increases in DHS Border Patrol agents, requiring coordination with DHS, U.S. marshals, the Office of the Federal Detention Trustee, and the Bureau of Prisons. The particularly rapid growth in the number of Border 5 Generally, small rescission amounts reflect “across the board” reductions to the amounts initially specified for each program, the method the appropriations committees often use to make a final small cut to most of the accounts in the bill to get the bill’s overall total figure to meet a particular ceiling. 6 See Figure 4-1 (in Chapter 4) and accompanying text for a discussion of the civil and criminal case pipelines.

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78 BUDGETING FOR IMMIGRATION ENFORCEMENT TABLE 5-2 Budgets for DOJ Immigration Enforcement-Related Agencies, 2001-2011 ($ in millions) Fiscal Years DOJ Agency Budgets 2001 2002 2003 2004 Detention Trustee President’s budget 26.0 1.7 1,388.6 810.1 Regular appropriation 1.0 1.0 775.6 814.1 Supplemental 40.0 Reprogramming (AFF) 77.7 Transfer 31.3 Rescission –8.6 Federal Prisoner Detention, United States Marshal Service President’s budget 597.4 724.7 Regular appropriation 597.4 706.2 Salaries and Expenses, United States Marshals Service President’s budget 586.5 619.8 722.2 720.8 Budget authority (regular appropriation) 572.7 619.4 680.5 719.8 Supplemental 0.0 10.2 8.0 0.0 Construction, U.S. Marshals Service President’s budget 6.4 6.6 15.2 0.0 Regular appropriation 18.1 15.0 15.2 14.1 Supplemental 0.0 9.1 0.0 0.0 Administrative Review and Appeals (EOIR and OPA) President’s budget 164.5 178.5 198.9 197.4 Regular appropriation 161.1 173.6 188.0 193.5 Supplemental 3.5 Salaries and Expenses, United States Attorneys President’s budget 1,291.0 1,346.3 1,550.9 1,556.8 Regular appropriation 1,250.4 1,354.0 1,503.8 1526.3 Supplemental 56.4 Rescission –3.0 Federal Prison System, Salaries and Expenses President’s budget 3,545.8 3,829.4 4,208.5 4,677.2 Regular appropriation 3,476.9 3,808.6 4,071.3 4,461.3 Supplemental Reprogramming Rescission

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79 BUDGETING FOR DOJ IMMIGRATION ENFORCEMENT 2005 2006 2007 2008 2009 2010 2011 938.8 1,222.0 1,332.3 1,294.3 1,295.3 1,438.7 1,533.9 886.0 1,222.0 1,225.8 1,225.9 1,295.3 1,438.7 1,518.7 184.0 60.0 7.0 0.0 20.0 –11.8 –15.0 –145.0 3.0 742.1 790.3 825.9 899.9 933.1 1,138.4 1,180.5 752.0 793.0 808.0 864.2 950.0 1,125.8 1,125.8 12.0 9.0 0.0 28.6 10.0 29.7 0.0 1.4 0.0 0.0 0.0 14.0 26.6 5.7 8.9 6.8 2.3 4.0 26.6 16.6 0.0 0.0 0.0 8.0 0.0 0.0 0.0 202.5 216.3 229.2 247.5 263.8 300.7 319.2 204.0 215.7 228.1 232.6 270.0 300.7 300.7 2.1 1,547.5 1,626.2 1,664.4 1,747.8 1,831.3 1,926.0 2,041.3 1,547.5 1,600.0 1,645.6 1,754.8 1,836.3 1,934.0 1,934.0 9.0 5.0 9.2 4,706.2 4,895.6 4,987.1 5,151.4 5,435.8 5,979.8 6,533.8 4,628.0 4,892.6 4,974.3 5,050.4 5,595.8 6,086.2 6,295.0 5.5 17.0 187.1 20.0 109.2 12.6 continued

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80 BUDGETING FOR IMMIGRATION ENFORCEMENT TABLE 5-2 Continued Fiscal Years DOJ Agency Budgets 2001 2002 2003 2004 Federal Prison System, Buildings and Facilities President’s budget 835.7 833.3 396.6 187.9 Regular appropriation 835.7 813.6 399.3 0.0 Supplemental NOTES: AFF = Asset Forfeiture Fund, EOIR = Executive Office for Immigration Review, OPA = Office of Pardon Attorney. Patrol agents that occurred in the 2006-2008 period, with a 50 percent increase in the number funded (roughly 6,000 additional agents) over those 3 years (U.S. Government Accountability Office, 2007, p. 7), was a recurring source of DOJ’s justification for increased resources for U.S. attorneys during those years. The last Bush budget (2009) and first Obama budget (2010) included the U.S. attorneys in a larger “Southwest Border” enforcement initiative in their budget requests to Congress, although the increased funding received was to be targeted at a range of law enforce- ment problems, not just immigration. U.S. attorneys’ offices enjoy “complete to near-complete” auton- omy, the committee was told by DOJ staff in Washington. The budget process is one way to try to exert some influence over these otherwise autonomous offices. Congress has typically made small reductions to the amounts requested for U.S. attorneys (see Table 5-2), often the outcome of a sequence in which the House initially provided the amount requested in the President’s budget, and the Senate reduced the amount, expressing concern about the need for the U.S. attorneys offices to set priorities in the use of their resources. The Senate often specified the particular priori - ties of the subcommittee with responsibility for the DOJ budget, such as cybercrime, intellectual property, and child sexual exploitation cases. The final appropriation usually reflected something at or near the Senate’s amount.7 The only notable ad hoc budget action taken outside the regular annual appropriation process during this period to augment the resources 7 See, for example, the history of the 2007 Science/State/Justice/Commerce bill as reflected in House Report 109-520 and Senate Report 109-280 (available: http://thomas.loc.gov/ home/approp/app07 [September 2011]).

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81 BUDGETING FOR DOJ IMMIGRATION ENFORCEMENT 2005 2006 2007 2008 2009 2010 2011 0.0 170.1 117.1 210.0 95.8 96.7 269.7 189.0 90.1 432.3 372.7 575.8 99.2 99.2 18.6 11.0 5.0 SOURCES: Data from U.S. Office of Management and Budget (2001, 2002), House and Senate appropriations bills, reports from the Library of Congress (available: http:// thomas.loc.gov/home/approp [October 2011]), and documentation received from staff of the U.S. Department of Justice, Justice Management Division. of the U.S. attorneys came when USAO received a $9.2 million supple- mental appropriation as part of the 2010 supplemental appropriation for border security. The extra funding in this case was for a broad range of heightened law enforcement in the region—including drugs and human and weapons trafficking—as well as immigration enforcement. Other- wise, informal supplementation of the level of professional staffing of the U.S. attorneys offices in pursuing immigration enforcement is some- times obtained in those jurisdictions most affected by detailing DHS legal staff on a temporary basis. Use of such “SAUSAs” (Special Assistant U.S. Attorneys), while it augments resources directly, nevertheless has follow-on resource implications for DOJ’s adjudication and detention roles, which may require additional resources for those functions. Executive Office for Immigration Review The Executive Office for Immigration Review (EOIR) is focused entirely on an immigration enforcement related mission—primarily civil proceedings in immigration courts that lead to removal of illegal res- idents. As shown in Table 5-2, EOIR’s budget grew steadily over the 11-year period from 2001 through 2011, although with pauses in 2004 and again in 2011. EOIR processes the cases it has the resources to handle. Immigration judges routinely have substantial pending proceedings, i.e., case backlogs, as noted in Chapter 2. From 2003 through 2010, EOIR’s budget grew steadily, by about 7 percent per year on average and by 58 percent over the 7 years (see Table 5-2). Cases completed grew by nearly 14 percent during the same period. DOJ staff told the committee that there is consensus both in the department and in Congress that EOIR would need substantially more resources to handle its pipeline of cases and

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82 BUDGETING FOR IMMIGRATION ENFORCEMENT appeals more expeditiously. The increasing volume of cases was absorbed in substantial part by increasing the number of cases pending, which grew by 54 percent during the same 7-year period, from 169,447 cases at the end of fiscal 2003 to 261,426 at the end of fiscal 2010 (data from EOIR, personal communication). There is little evidence that EOIR’s funding levels were set in response to short-run increases or decreases in workload. EOIR’s workload rose sharply in 2005, as the immigration courts felt the impact of reduced DHS use of voluntary returns. Court proceedings and matters completed grew by 21 and 17 percent, respectively, that year and remained elevated in 2006, only to fall back by 16 and 10 percent, respectively, in 2007 (data from EOIR, personal communication). But, as noted above, these swings in case completions were not accompanied by noticeable changes to the agency’s budget. EOIR received two small supplemental appropriations in 2002 and 2010, but its budget was not the subject of rescissions or repro- gramming actions during this period. DOJ routinely cited ongoing initiatives undertaken by DHS and its two lead immigration enforcement agencies, CBP and ICE, as support for the continuous growth in the budget for immigration judges. EOIR’s congressional justifications repeatedly emphasized the impact of DHS initiatives on EOIR’s workload. As described in its 2007 budget justifica - tion, for example: “[T]he immigration court’s caseload increases resulting from DHS’ heightened enforcement efforts will remain the key challenge for EOIR . . . DHS enforcement strategies, coupled with resource increases received in FY 2003 through FY 2006 . . . have and will dramatically increase the immigrations court’s caseload” (U.S. Department of Justice, 2011a, p. 5). Office of the Federal Detention Trustee The recent history of budgeting for the immigration detention func - tion of the federal government is more complicated than that of the U.S. attorneys and EOIR. At least four agencies have responsibilities in this area: • ICE at DHS, which detains noncitizens undergoing expedited removal procedures; • USMS, which takes custody of immigration offenders not retained by ICE but subject to further legal proceedings in the United States; • OFDT, which pays for detention expenses incurred by USMS and otherwise provides or contracts for the transportation and hous- ing of detainees, except those in the custody of ICE and BOP; and

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83 BUDGETING FOR DOJ IMMIGRATION ENFORCEMENT • BOP, which operates 11 detention centers at selected high-volume locations (as well as other facilities that house people convicted of criminal immigration and other offenses). Prior to 2003, the costs of detaining immigration offenders were borne by the INS and by the U.S. marshals through the Federal Prisoner Deten- tion Program. That program (in particular) was plagued with what the House Appropriations Committee, in its report accompanying the fiscal 2000 appropriations bill, characterized as “wide fluctuations in the pro - jected and actual requirements of this account” (U.S. House of Represen- tatives, 1999), most recently demonstrated by a $70 million shortfall in a program spending roughly $425 million per year. Likewise, the House Appropriations Committee noted that there had been “severe funding shortfalls” in the detention and deportation account of INS in both 1999 and 2000. After expressing its “growing concerns about the problem of inadequate planning and management of detention space in the Depart - ment of Justice” the House Appropriations Committee (Subcommittee on Commerce, Justice, State, and Related Agencies) directed in 2000 “that the Attorney General submit recommendations on a Department-wide strategy to plan for and manage its detention needs” (U.S. House of Rep - resentatives, 2000a). In response, the Administration’s 2001 budget proposed the creation of a detention trustee to be responsible for “oversight of detention man - agement, as well as improvement and coordination of detention issues Department-wide.” The House Appropriations Subcommittee report com- plained that the proposal did not go far enough in centralizing all deten - tion funding under a management official, but considered the proposal to be an important first step, and $1 million was subsequently included in DOJ’s appropriation for 2001 and again for 2002 to prepare the way for this new office. Interestingly, the 2001 committee report envisioned an office that would do for detention “what the Wireless Management Office has done to remedy the problems with law enforcement communications systems.” The committee noted the similarity between detention and law enforcement communications in terms of “regional hot spots” and directed the new trustee to set up two pilot projects on the Southwest border and in the Midwest to test and demonstrate the improved coordi- nation that the trustee could bring to the detention function (U.S. House of Representatives, 2000b). The Office of the Federal Detention Trustee received its first full-scale appropriation in 2003 (as shown in Table 5-2), and the separate appro- priation to USMS (under the federal prisoner detention account) was eliminated. However, the initiation of OFDT operations did not work out entirely as originally envisioned. The initial appropriation of $1.37

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84 BUDGETING FOR IMMIGRATION ENFORCEMENT billion for fiscal 2003 was premised on this new DOJ office being “given authority to direct the use of INS and USMS detention resources” (U.S. House of Representatives, 2002). OFDT took over responsibility for hous- ing and related detention functions of detainees in the custody of the U.S. marshals for immigration and other offenses. But for reasons that are not entirely clear, INS retained its separate detention function, and OFDT actually spent (obligated) only $774 million in its first full year of opera - tions. It may be that officials were more concerned about immigration enforcement and the creation of DHS at that time than implementation of the plans for OFDT. In the years that followed, that arrangement was maintained, with INS and, subsequently, DHS/ICE continuing to handle its detainees, effectively foregoing the improved coordination and management of the detention function under OFDT as originally contemplated. After this dramatic beginning, funding for OFDT continued to be volatile. Immi - gration enforcement resource needs have played a major role in driving budget changes. OFDT received two supplemental appropriations ($40 million in 2003 and $184 million in 2005) and a reprogramming from resources of the FBI and the department’s Asset Forfeiture Fund (for a total of $109 million) in 2004 to augment its initially appropriated resource levels (see Table 5-2). In 2004, the number of persons booked for immigration offenses by the USMS surged by 42 percent over its 2003 level, requiring DOJ to scramble to reprogram existing department resources to meet this need. As the department subsequently explained to Congress what had happened to the budget for OFDT that year, “[W]hile records show that increases occurred in every offense category, arrests/bookings for crimi- nal immigration offenses increased by the largest amount (43% of new growth), reflecting increased emphasis—and success—in identifying con- victed felons attempting to enter the United States” (U.S. Department of Justice, 2011a, p. 5). Although the level of immigration-related bookings remained rela- tively constant in 2005, OFDT was still feeling the impact of the surge in 2004, and it initially requested a 17 percent increase in its budget for 2005. Congress declined to approve that request, providing OFDT with only an 8.8 percent increase. But Congress then found it necessary to provide OFDT with an enormous $185 million supplemental appropriation for that year. OFDT’s total appropriation subsequently jumped again in 2006 by $336 million, or 38 percent, while immigration-related bookings grew by 23 percent. The total appropriation for OFDT leveled off at roughly $1.2 billion per year for 2006, 2007, and 2008. A further surge in immigration-related bookings by USMS of 63 percent occurred over that 2-year period, and

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85 BUDGETING FOR DOJ IMMIGRATION ENFORCEMENT actual budget obligations again rose in line with the rapid growth in bookings before leveling off in 2008. Nevertheless, despite this extraor- dinary growth in the immigration offender population it was required to serve during this period, OFDT had built up $137 million in unused funds at the outset of 2008; not surprisingly, in the 2008 appropriation bill, Congress rescinded $145 million. OFDT’s experience during 2008 appears to have been particularly stressful. In its 2010 congressional justification to Congress (U.S. Depart - ment of Justice, 2009), the agency noted that it had experienced “funding shortfalls” in 2008 and 2009 that it attributed to “increased unfunded immigration enforcement activity by the Department of Homeland Secu- rity at the Southwest Border, which began in FY 2008 and continues through FY 2009.” The initial 2008 appropriation for OFDT was itself unusual, as the statutory language first provides $1,225 million—below the administration’s request but virtually the same amount as 2007—and then, in the next paragraph, rescinds or takes away $145 million of that appropriation.8 Congress subsequently found it necessary to approve the department’s request for a $20 million reprogramming from its Asset Forfeiture Fund for OFDT in 2008. Thus, although OFDT had managed to keep growth in actual spending (obligations) relatively smooth at 9.5- 10.0 percent a year over the 2004-2007 period, the agency seemingly “hit a wall” in 2008, with obligations growing by only slightly more than 1 percent. Congress resumed funding growth in the OFDT budgets for 2009, 2010, and 2011. For 2009 and 2010, DOJ sought and received increases of 5.6 percent and 11.1 percent, respectively, for OFDT. The major justifica- tion for these increases was the Southwest Border Enforcement Initiative undertaken by the Bush Administration and continued with the first budget of the new Obama Administration. In both years, this initiative was justified on the basis that funding would be used “to accommodate an anticipated increase in the number of detainees placed in non-federal facilities along the Southwest Border. . . . This program increase will sup - port detention housing for an additional 7,000 immigration offenders apprehended by the Department of Homeland Security and processed by the U.S. Marshals Service” (U.S. Department of Justice, 2009, p. 35). OFDT not only received the full appropriation it had requested for both 2009 and 2010, but was also the beneficiary of supplemental appro - priations in both years, receiving an additional $60 million in 2009 and a $7 million supplemental appropriation as part of a larger Emergency Bor- 8 DOJ staff suggested to the committee that this rescission did not have an analytical basis but rather reflected the larger dynamics of the budget process in Congress in 2008: “the Hill just needed the money.”

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86 BUDGETING FOR IMMIGRATION ENFORCEMENT der Security supplemental appropriation in 2010. Nevertheless, the fact that Congress ratified the OFDT increases requested in 2009 and 2010— and even augmented the initial appropriation with supplemental fund- ing later in the year—may have had as much to do with the continuing growth in the immediately prior year (that is the fiscal year in which the annual appropriation request was made to Congress) in USMS bookings of immigration-related offenders as it did with the persuasiveness of the administration’s case for focusing on the Southwest border. Those book - ings increased by nearly 40 percent in 2008 and another 11 percent in 2009. In 2011, DOJ sought a $1,534 million appropriation for OFDT, an increase of $95 million or 6.6 percent. Although bookings for immigration- related offenses actually declined slightly in 2010, when OFDT’s full-year appropriation came through in April 2011, the agency received an $80 million (5.6 percent) increase to a total level of $1,516 million, despite a general governmentwide congressional policy to freeze 2011 spending at the 2010 enacted level for most agencies. As noted above, the creation of OFDT had its origins in the congres- sional desire for better planning and management of the detention func - tion. According to a letter of the U.S. Government Accountability Office (2010, pp. 40, 41), DOJ did improve its ability to forecast the average daily population it will need to house in state, local, and private detention facilities and “OFDT’s average housing and subsistence rate projections have been accurate within 3 percent each year” over the period 2005-2009. Yet despite both the creation of OFDT and the improved forecasting abil - ity that this office has brought to budgeting for the detention function, the budget process for this program has, as described above, been character- ized by a series of upward and downward swings in actual resources available to the agency. U.S. Marshals Service With a major program expense offloaded to the new OFDT in 2003, the budget of USMS grew rather smoothly over the 2001-2010 period (see Table 5-1). As discussed above in conjunction with the funding needs of OFDT, immigration-related bookings by USMS grew dramatically although unevenly over this 10-year period. DOJ staff noted to the com- mittee that although only 10 percent of the illegal entrants picked up by DHS personnel subsequently go through the criminal prosecution process for which DOJ is largely responsible, these offenders can at times over- whelm department agencies, including USMS.9 Yet, ironically, this volatile 9 The other 90 percent of persons detained by ICE/DHS are subject to detention or release decisions made administratively by DHS officials (see discussion in Chapter 3).

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87 BUDGETING FOR DOJ IMMIGRATION ENFORCEMENT growth in bookings of illegal immigrants has had less apparent impact on the budget of USMS than on other DOJ components, particularly the detention function. As with the U.S. attorneys and the immigration judges, DOJ staff told the committee, there is some ability to use back - logs of other workload as a buffer to adjust the amount of work that can completed within the resources available—by not pursuing as many fugi- tives, for example—when there is an upsurge in bookings of immigration offenders (or in another higher priority activity). USMS did receive small supplemental appropriations in 6 of the 10 years from 2001 to 2010. However, only in the case of the most recent $37.7 million—included in the Southwest Border Enforcement Initiative supplemental appropriation for 2010—was funding provided specifically to cover immigration-related expenses, and even in that instance the supplemental resources were targeted more heavily to wartime and anti- terrorism objectives (such as witness security in Afghanistan). Bureau of Prisons Although roughly one-quarter of the BOP inmate population is com- posed of non-U.S. citizens, only about 40 percent of that group, or 10 per- cent of the total prison population, is reported as incarcerated for immi - gration offenses.10 This population grew proportionally with the annual average growth rate of 2.6 percent for the overall BOP population during the 2004-2010 period. For this small fraction of the inmate population, BOP is estimated to spend approximately $640 million annually (exclud- ing prison construction costs, which vary widely from year to year). The amount spent on incarceration of convicted immigration offenders con- stitutes more than 30 percent of all the resources that DOJ is estimated to spend on immigration enforcement. BOP received both a $187 million supplemental appropriation and approval for a $109 million reprogramming in 2008. Otherwise, BOP received only a few small supplemental appropriations over the 2001-2010 period. Although BOP’s initial 2008 appropriation of $5,050, a 1.5 percent increase over 2007, proved inadequate in 2008, this shortfall was not tied specifically to costs attributable to immigration offenders. With respect to DOJ’s immigration detention responsibilities, BOP operates a number of detention centers and units that confine pretrial and presentenced offenders. As was true during the INS era, this por- tion of federal spending on detention of immigration offenders is not 10 According to BOP staff, for individuals charged with multiple offenses, BOP designates the offense with the longest sentence as the primary offense; thus, there are doubtless many more individuals charged with or convicted of immigration offenses in the BOP system.

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88 BUDGETING FOR IMMIGRATION ENFORCEMENT under the jurisdiction of OFDT. Moreover, BOP cells (beds) are used to handle overflow needs for beds and jail cells during the presentence detention process, and these costs are paid out of BOP’s budget, not that of USMS or OFDT, illustrating the department’s flexibility in using its resources to manage the ebb and flow of detention space needs (discussed in Chapter 4). DOJ staff noted to the committee that “there is adequate detention space in the U.S. as a whole,” but “space is not necessarily avail- able where it is needed.” BOP allocates approximately 12,300 beds in 25 of its facilities to detainees of USMS. BOP has undertaken one initiative to curtail immigration-related expenses. In recent years, the agency has been able to reduce its funding needs by working with ICE and EOIR to expedite removal orders for non- U.S. citizens. The three agencies work together at roughly 30 BOP facilities to process and complete orders so that inmates can be removed promptly at the end of their sentences (U.S. Department of Justice, 2011d, p. 48). 11 General Observations Overall, most of the DOJ agencies with enforcement roles have enjoyed relatively smooth growth in their budgets over the past 10 years (see Table 5-2) with the exception of OFDT. Although Congress has often provided for expected growth in detention activities in response to administration budget requests, OFDT has experienced episodes of “catch-up” when it had to scramble to obtain the resources (in the form of supplemen - tal appropriations and approval for reprogramming) needed to handle surges in bookings and subsequent detention requirements, as well as cases of excess resources at the start of the year reflected in carryover bal - ances and, in one instance, a major rescission. Viewed from a broader perspective, perhaps the biggest challenges in immigration enforcement policy that affected the budgets of DOJ agen - cies—particularly OFDT, USMS, and the immigration judges—in the past decade were a product of increases in enforcement efforts and changes in enforcement policies by the Immigration and Customs Enforcement and Customs and Border Protection agencies in DHS. Over the course of the period from 2001 to 2010, front-line immigration enforcement was reor- ganized in a new department; the number of border patrol agents more than doubled; and a series of initiatives was implemented to promote stricter enforcement, including the Secure Border Enforcement Initiative and Operation Streamline in 2005 and the Secure Communities Program in 2008. As these efforts took hold, the effects on DOJ agencies were 11 The committee was unable to obtain resource measures for this expedited removal program.

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89 BUDGETING FOR DOJ IMMIGRATION ENFORCEMENT uneven. Bookings by the U.S. marshals and the associated demand for detention services were noticeably affected by these increased enforce - ment efforts, while there was a smoother upward trend for criminal cases processed by U.S. attorneys and BOP incarcerations of criminal immigra - tion offenders. The immigration judges increased their output, but their pending caseload grew sharply. THE BUDGET DEVELOPMENT PROCESS Initial development of budget estimates for presentation to Congress involves a lengthy process in all executive branch departments. At DOJ, for example, the process usually begins in the winter or spring of the year prior to the beginning (on October 1) of the federal fiscal year, that is, 18 to 24 months before the beginning of a particular fiscal year. Component agencies and offices in the department develop budget requests that are reviewed by the department’s leaders in a process managed by the budget office in the Justice Management Division. Once departmental requests are submitted in early fall to the U.S. Office of Management and Budget (OMB), that agency has the responsibility to review and coordinate policy and budget proposals and to produce an integrated set of recommenda- tions to the President for his budget and legislative agenda for the coming year. In making their budget projections, DOJ staff have made increasing use of sophisticated analytical techniques, particularly for detention. The projection of detention resource needs for both USMS and OFDT has improved in recent years as OFDT staff have been able to develop and refine a statistical model to project future detention populations. How- ever, as discussed above, the internal coordination of detention budget estimates among immigration enforcement agencies that was overseen by the Deputy Attorney General prior to 2002 fell away after the creation, first, of the Office of the Federal Detention Trustee and then the Depart - ment of Homeland Security. The lack of such a coordinating body in the executive branch, and the apparent failure of OMB to completely fill this void (see below), has meant that sharing of information and analyses by the cognizant agencies has been only suboptimal at best. Although overall inflation (although perhaps not food and energy prices) and regulatory changes can be anticipated, the long lead time involved in the budget development process is an inevitable source of uncertainty in budget estimates. For DOJ agencies with responsibilities for immigration enforcement, intervening changes in administration poli- cies, particularly the shifting priorities and strategies of DHS, can have a significant impact. This situation suggests an important coordination role for OMB. And the cases of the Southwest border and emergency bor-

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90 BUDGETING FOR IMMIGRATION ENFORCEMENT der security initiatives in 2009-2010 reflect some improved coordination within the executive branch in recent years. In those instances, OMB did the work to create a consistent budget request for enhanced immigration enforcement by both DHS and DOJ. However, this experience reflects an exception in recent years. Part of the reason for the situation may be that OMB is operating in an environment of continuous severe budget restraint for domestic discretionary programs. Consequently, it is difficult to promote more spending for certain programs even if rational coordi- nation of the overall government immigration enforcement effort would suggest the value of such coordination, particularly when an enforcement initiative has been approved for DHS, for example. Effective, timely coordination and communication among the vari - ous personnel and agencies involved in the budget process can improve information used as a basis for decision. During development of the President’s budget, OMB is responsible for coordinating separate agency requests to ensure consistency of decisions regarding shared functions such as this one. During the congressional process, sharing of information among the subcommittees responsible for funding different agencies can serve a similar purpose. Staff of all three responsible bodies—the agen - cies, OMB, and the congressional committees—cited examples of poor coordination of immigration enforcement resource needs over the past 10-11 years (usually by the other two parties). From a broader perspec - tive, such funding inequities can result from the current budget process for several reasons: • At the agency level, leadership groups make decisions on differ- ent schedules, even if their budget processes are similar, and in differing contexts. With multiple different missions and facing inevitable resource constraints, for example, DHS and DOJ may have different priorities for particular immigration enforcement functions. • Similarly, different OMB offices have to respond to differing and sometimes conflicting policy guidance. Recognition of inconsis- tencies, let alone the sorting out of such conflicts, may not fully occur for any given budget. • Likewise, the different appropriations subcommittees in Congress face their own limited suballocations and may not be fully aware of the “downstream” effects of the legislation they put forward on the agencies whose budgets are funded in another subcommit- tee’s bill. The two departments have at times attempted to coordinate their policies and plans at higher levels, but their cooperation does not extend

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91 BUDGETING FOR DOJ IMMIGRATION ENFORCEMENT to joint efforts to develop a common enforcement strategy, targets, or estimates of resource needs. Given administrative inefficiencies that result from the current approach to budgeting and planning for immigration enforcement, the committee believes a new jointly executed planning and budgeting approach consistent with requirements of the new Govern- ment Performance and Results Act Modernization Act of 2010 (discussed in Chapters 6 and 7) could yield gains in the productivity of budgeted resources and more success in achieving the goals of immigration enforce- ment policy. There is little evidence that budget choices have been guided by analysis of how alternatives to current resource uses would affect such outcomes as fair, prompt adjudication of status or of criminal charges or would contribute to broader aims of enforcement, especially to reducing unauthorized immigration. DOJ and other departments have developed an array of performance measures that have been or could be useful in assessing how performance varies with both the level and use of bud - geted resources, but strong measures of outcomes such as those men- tioned above is generally lacking.12 Requirements of the Government Performance and Results Act of 2010 provide a set of new opportunities for federal agencies, including those sharing responsibility for a com- mon mission or set of objectives, to plan and budget to improve their performance. The requirement for OMB to identify, in consultation with Congress, a set of crosscutting, long-term, outcome-focused “federal gov- ernment priority goals” and use them to improve performance could be a spur to DOJ and DHS to plan and budget together for their shared enforcement responsibilities. THE BROADER BUDGET CONTEXT To the outside observer, the budget history over the 2001-2010 period of the five DOJ agencies with immigration enforcement responsibilities does not seem particularly dramatic or unusual. Immigration enforce - ment was a growing priority of successive administrations and Congress, which created continuing pressure for more resources to address the effects of heightened enforcement activity, especially by DHS agencies, on the five DOJ agencies. Initiatives to address particularly critical functions, such as the housing and medical needs of detainees, were undertaken 12 For more information on DOJ’s performance measures, including those for immigra - tion enforcement, see the budget and performance page of the department’s website (see http://www.justice.gov/02organizations/bpp.htm [September 2011]). The fiscal 2010 An - nual Performance Report includes two targets for immigration enforcement: reducing the average cost of detentions and increasing the percentage of immigration review priority cases handled within specified time frames.

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92 BUDGETING FOR IMMIGRATION ENFORCEMENT periodically, but a major reorganization of the appropriation accounts and budget treatment of this function did not bring an end to the periodic swings in resource needs that had characterized the enforcement activities prior to the change in budget structure. What is most perhaps striking about the pattern of budgeting for the DOJ immigration enforcement agencies is the relatively small number of instances when sizable adjustments were sought or made to appropria- tions provided initially through the regular budget process. This could be interpreted as indicating that initial resource levels were generally adequate, reflecting an ability to anticipate and budget for growth in service demands. Or, more likely, it could be a reflection of the ability of administrators at both national and local levels to adjust their operations to whatever level of resources is provided. There is evidence for this in the growing backlog of pending cases in EOIR, as one example. And the committee’s observations of such adjustments in the regions we visited reinforced this explanation. Creation of the Department of Homeland Security may have compli- cated coordination of the resource needs of the immigration enforcement agencies, although it is difficult to point to a specific pattern of inaccurate or reestimated requests that is correlated with that creation. The existence of senior-level coordinating groups at DOJ prior to the creation of DHS suggests that there was recognition of the particular difficulties in budget - ing for this function. The years after the creation of DHS have seen the introduction of some ad hoc communication arrangements to anticipate and adjust resources to address the impact on DOJ component offices and bureaus of policy initiatives undertaken by the main DHS operating agencies (ICE and CBP). The lack of more overt, formal coordination here may not reflect a fail- ing of management and oversight functions so much as the inherent com- plexity involved in bringing agencies together, each of which is subject to differing policy priorities and competing demands for resources. Planning with the long lead times involved in the federal budget process inevitably leads to unanticipated changes driven by both external developments and internal reassessments of resource allocation decisions. A natural question is whether a more formal coordinating process and set of budget estimating procedures would have affected the outcomes observed over the past 11 years or the likely course of future budget allocations for federal immigration enforcement functions. Heightened emphasis on homeland security during the years after 2001 caused the planning and budgeting for immigration enforcement to be particularly difficult. And it is possible that after these initial years of adjustment to new operating arrangements in the relevant agencies at both DHS and DOJ there will be greater payoff to the introduction of more formal coor-

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93 BUDGETING FOR DOJ IMMIGRATION ENFORCEMENT dinating mechanisms among the immigration enforcement agencies. In the current stringent budgeting environment for domestic discretionary federal agencies, heightened competition for resources among the agen- cies and continuing demands to meet multiple priorities may make such coordination more important, although also more challenging. The two departments face an array of other challenges in budgeting for immigra - tion enforcement, which is the focus of Chapter 6.

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