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Biden budget accelerates shift from Trump policies on immigration

The immigration court system, run by the Department of Justice, has 1.3 million cases already on the docket
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President Biden’s annual budget proposal would substantially increase funds for the Department of Homeland Security (DHS) while further taking the agency away from the enforcement-heavy policies imbued into it by the Trump administration.

Biden requested $56.7 billion in discretionary funding for DHS in 2023, a 5.4 percent increase from what the department effectively spent in 2021.

The two top immigration enforcement agencies will receive upticks; Customs and Border Protection (CBP) would receive $15.3 billion in discretionary funding, compared to $14.7 billion obligated in 2022 and $15 billion in 2021, and Immigration and Customs Enforcement (ICE) would receive $8.1 billion in discretionary funds, up from $8 billion in both 2021 and 2022.

But the budget request gears much of that funding toward “effectively managing irregular migration along the Southwest border” and focuses on improvements to ports of entry, at least rhetorically parting from the agencies’ reputation for hard-knocking enforcement.

“Notably, the Budget makes smart investments in technology to keep our borders secure and includes funding that will allow us to process asylum claims more efficiently as we build a safe, orderly, and humane immigration system,” Homeland Security Secretary Alejandro Mayorkas said in a statement.

Immigration restrictionists rued the change of tack, saying the focus on border management would do little to discourage future illegal immigration.

“At this point, they might as well change the name of U.S. Customs and Border Protection to U.S. Customs and Border Processing,” said RJ Hauman, head of government relations and communications at the Federation for American Immigration Reform.

But immigration advocates pointed out that enforcement budgets have consistently risen over time, even when priorities may have shifted.

“In terms of the topline funding amounts this budget maintains that historical trend of year-over-year record funding for immigration enforcement in the U.S.,” said Jorge Loweree, policy director at the American Immigration Council.

“We will continue to spend more on immigration enforcement than all other federal law enforcement combined.”

Biden’s request also ratchets back other aspects of the immigration enforcement system, cutting the funding for beds in the detention system and seeking to force a reduction in detention while pushing programs for alternatives to detention.

The budget would cut by 25 percent the 34,000 beds within the ICE detention system recently funded through an omnibus spending package passed by Congress.

Nicole Melaku, executive director of the National Partnership for New Americans, said the group is “encouraged” by some of the provisions in the budget, including the cuts in detention and funds to ensure due process for immigrants in the enforcement system.

“The funding for legal representation would be an investment in our ideals of due process, fairness, and human rights and opportunity to seek asylum and other forms of humanitarian protection. There are, unfortunately, concerning provisions, including increasing so-called alternatives to detention, which would increase surveillance over immigrants and private profiteering,” said Melaku.

Immigrant advocates are also applauding the request for a massive increase in the budget for United States Citizenship and Immigration Services (USCIS), the agency in charge of processing work permits, permanent residency permits and naturalizations.

USCIS would continue to be an agency mostly funded by applicant fees, but the Biden administration intends to inject $765 million earmarked for application processing.

The agency is expected to collect around $4.4 billion in fees in 2023, roughly in line with its 2022 budgeted collections, but its discretionary budget would jump to $914 million from $470 million in 2022.

According to the Migration Policy Institute, the agency had a backlog of around 9.5 million visa cases as of February.

USCIS, a lesser-known agency, was the target of budget cutbacks and institutional reforms during the Trump administration, which sought to turn it from a services agency with foreign nationals as its main client and into the first line of immigration enforcement with a security-focused mindset.

Mayorkas is intimately familiar with USCIS, as he led the agency from 2009 to 2013, under former President Obama.

The extra funding could help the agency cut into the backlog, but Mayorkas has also announced plans for USCIS to take a more central role in initial asylum processing, allowing CBP and the Border Patrol to focus on their security and screening functions.

Under a new rule announced last week, USCIS and the immigration court system housed under the Department of Justice would take center stage in asylum processing.

The budget nearly doubles funding for the immigration court system, which itself has a 1.7 million case backlog. The request would include funding for another 100 immigration judges, a request made in the prior budget request that was never realized.

Doing so would be a big jump in the number of court personnel, as there are currently around 500 such judges who are faced with the crushing caseload.

“Hiring more judges itself is not going to be sufficient to address the court backlog. The courts are not going to be able to keep pace. Every few years we’re seeing a doubling of court cases,” said Greg Chen, director of government relations with the American Immigration Lawyers Association.

“There were 520,000 [in the queue] when Trump took office, 1.3 million when Biden took office, and now under Biden it’s reached 1.7 million, so the court also needs policy changes to back up any kind of fiscal bump to address the massive backlog. We can’t just buy our way out of this problem,” Chen added.

The administration has in some cases proposed ways to do that, including money set aside at USCIS to hire new officers who would first review asylum cases that would otherwise directly initiate within the immigration court system.

But it is not yet clear the extent the new policy, published last week, will make a dent in the court’s workload.

The budget at both DOJ and the Department of Health and Human Services also sets aside funding legal aid for an immigration court system that, unlike the U.S. criminal court system, provides no guarantee of counsel.

The budget sets aside $150 million for such efforts, well in excess of $15 million proposed for a legal aid pilot program in the last budget, which was ultimately stripped by congressional appropriators.

​​The budget doubles funding for the Nonprofit Security Grant Program to $360 million to protect houses of worship and other nonprofits — a move that follows a hostage situation at a Texas synagogue and a string of bomb threats called in at historically black colleges and universities.

Biden also directs a serious investment in cybersecurity, including $1 billion to enhance cyber risk analysis capabilities. More than half of that would go toward “visibility into unauthorized, potentially malicious, or adversary activity” targeting both the federal government and private companies.

The hope for a major investment in cybersecurity comes amid concerns Russia could seek to punish the U.S. for its involvement in its invasion into Ukraine by targeting important cyber infrastructure.

Despite the Biden administration’s change in focus for DHS, many advocates remain suspicious of immigration enforcement agencies.

“DHS conducts out-of-control enforcement because it has been given free rein over limitless and unaccountable funding for border militarization. Every year, ICE and CBP keep pushing the limits of their budget — and typically receive record levels of funding from Congress,” said Isa Noyola, deputy director of Mijente. 

“What incentive does DHS have to comport with the Constitution if Congress annually rewards the agency with billions of dollars despite rampant abuses? The clearest message Congress can send to a department like DHS is to reduce its budget in response to immoral, unconstitutional policies and actions,” Noyola added.

—Updated at 6:23 p.m.

Tags Alejandro Mayorkas Barack Obama Department of Homeland Security DHS Immigration Joe Biden

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