Law360 published this article on February 14, 2024. Written by Britain Eakin from Law360.

The U.S. Department of Homeland Security is warning it may have to pare back border security initiatives and removal procedures, while green card and asylum backlogs worsen, if Congress doesn’t provide additional funding, per a Wednesday email to Law360.

A day after the U.S. Senate was forced to strip out border security provisions to pass a funding bill for Ukraine, Israel and Taiwan, DHS spokesperson Erin Heeter said that the Biden administration has “repeatedly requested additional resources” only to be “chronically underfunded.”

Wait times for green card processing could be prolonged due to strains on U.S. Citizenship and Immigration Services’ workforce, while the asylum backlog — which currently stands at more than 1 million cases — would also likely grow as asylum staff are diverted to help manage operations at the southern border, Heeter said.

The ability of U.S. Immigration and Customs Enforcement to sustain its current level of removal operations may also falter, and the funding shortfall could put U.S. Customs and Border Protection’s efforts to modernize ports of entry and boost border surveillance technology at risk, according to DHS.

“Without adequate funding for CBP, ICE, and USCIS, the Department will have to reprogram or pull resources from other efforts,” Heeter said.

The statement follows the House Republicans’ Tuesday vote to impeach Homeland Security Secretary Alejandro Mayorkas, whose policies they blame for driving record-high border crossings.

House Republicans have long complained that Mayorkas has been flouting provisions of the Immigration and Nationality Act they have contended require DHS to detain all migrants crossing the Southern border.

To deal with the budget shortfall, ICE is reportedly considering downsizing its detention capacity and releasing thousands of detained noncitizens in line to be deported. Citing a multimillion-dollar budget gap for fiscal year 2024, DHS said Congress bears responsibility for chronically underfunding the agency, and failing to pass a bipartisan supplemental funding bill for Ukraine’s war effort against Russia, in which Democrats agreed to meet some Republican demands to tie the funding bill to border security, along with sweeping asylum changes.

The bill would have raised the standard for asylum interviews and given President Joe Biden authority to halt asylum processing in between ports of entry when daily migrant encounters reach 8,500, or average weekly encounters surpass 5,000 per day.

The bill gave nearly $6.8 billion to CBP to hire more officers and Border Patrol agents, combat drug smuggling and expand support at ports of entry, while USCIS was slated to get about $4 billion to hire more asylum officers. The bill would have also devoted $440 million to hire additional immigration judges.

Republicans, however, banded together to vote the bill down, which Sens. Kyrsten Sinema, I-Ariz.; Chris Murphy, D-Conn.; and James Lankford, R-Okla., had worked on for months.

In rejecting the measure, Republicans contended it didn’t go far enough to address record high migrant crossings at the southern border.

The bill had drawn criticism from immigrant rights advocates, who said it gutted asylum protections.

Michael Lukens, the executive director of the Capital Area Immigrants’ Rights Coalition, told Law360 Wednesday that “ICE is using fear mongering tactics” to try to get more funding by suggesting that reducing its operations would put public safety and national security at risk.

“As a nonprofit serving immigrants held in detention, we want to see detention ended. What ICE is trying to do is not that. They are trying to capitalize on the false narrative that immigrants make communities unsafe so that they can actually detain more people. We need real reform of detention and ICE enforcement,” Lukens said.

Jennifer Ibañez Whitlock, supervisory policy & practice counsel at the American Immigration Lawyers Association, told Law360 that ICE is unlikely to downsize its detention capacity overnight, given that it has contract obligations with private prisons and local municipalities.

Instead, ICE will have to re-assess who it chooses to detain, and release those who are eligible to proceed with asylum cases in immigration court, migrants eligible for parole with sponsors and those who are not a threat to public safety, Ibañez Whitlock said.

“ICE has been overspending on detention for a while and it is catching up,” she said.

Rep. Bennie G. Thompson, D-Miss., blasted Republicans on Wednesday, saying they’ve “been playing with fire for months, by refusing to fund needed border security operations.”

Rep. Mark Green, R-Tenn., fired back, laying the blame for the budget shortfall at the feet of the Biden administration and DHS Secretary Mayorkas, saying their budget request for fiscal year 2024 contained a $700 million cut for ICE enforcement and removal operations from what Congress doled out for the prior fiscal year.

“This is just further proof of Secretary Mayorkas’ refusal to comply with the law requiring him to detain illegal aliens — one of the reasons he was just impeached,” Green said.