The Mixed Messages and Missed Opportunities in Biden’s FY 22 Budget
On Friday before the Memorial Day weekend, President Biden released his first full budget proposal for fiscal year 2022. The budget offers decidedly mixed messages on his immigration platform. The President is making much-needed investments to the core immigration institutions, specifically the immigration courts and U.S. Citizenship and Immigration Services (USCIS). But he has missed key opportunities to implement his vision for a fairer and more humane immigration system. Those gaps that are most notable in detention reform and access to legal representation. In this update, we compare the President’s budget to our recommendations issued last week.
Detention. The biggest disappointment is the lack of any signal that President Biden intends to address America’s gross overuse of inhumane and unsafe detention for immigration purposes. For two decades, immigration detention escalated reaching a high point in 2019 with a population of 50,000. When the President entered office, however, detention levels were far lower at 15,000 due primarily to COVID-19 entry restrictions blocking migration. The lower detention levels presented the new administration with an opportunity to institute major reform by shifting away from detention. Instead, the administration is seeking a walloping $2.7 billion dollars for Immigration and Customs Enforcement (ICE) detention, nearly the same level Congress provided last year during the Trump Administration. The ICE budget does include $441 million for alternatives to detention, but ICE has not signaled whether it will implement more effective case management and supervision methods.
On overall enforcement, the administration maintained close to the same level of funding for the two main enforcement agencies: $8.4 billion for ICE and $16.3 billion for Customs and Border Protection (CBP).
Immigration courts. As was previously announced, the president increased the overall budget for the immigration courts from $734 million to nearly $900 million. The purpose for the increase is to hire 100 additional immigration judges and support staff. While AILA has long-supported more funding to ensure the courts operate fairly and efficiently, by itself money can’t buy justice in the courts. AILA is still waiting for Attorney General Merrick Garland to announce critically needed reforms to make the courts fairer and humane. In particular, a modest investment to beef-up training for immigration judges would go a long way to correcting the skewed interpretation of immigration law now dominant within the judge corps. The current bias in favor of prosecution resulted in the highest asylum denial rate by judges in 2020—a staggering 72 percent.
Legal representation. With more than 40 percent of people facing removal without legal representation, the provision of counsel—paid for by the government when needed—is the lynchpin to making court proceedings fair and just. We were pleased that the administration included pilot funding for children and families to receive legal counsel. But the additional amount requested for the Justice Department, $15 million (which supplements funding already provided to the Department of Health and Human Services for children’s representation), is a drop in the bucket of what’s needed to ensure everyone has legal representation and won’t even meet the needs of all asylum seekers, people in detention and other vulnerable groups. Senate and House leaders called for funding at far greater levels, and on their own, California, New York and other states provide several times that amount to fill the gap left by the federal government’s slowness to act.
Immigration benefits adjudications. The President is seeking a significant investment of $345 million to help USCIS reduce case backlogs and increase refugee admissions. Anticipated as a multi-year effort, the backlog reduction will focus on the forms with the highest volumes of backlogged cases and the longest processing times. The focus on backlog reduction and efficiency is music to the ears of the millions of people waiting far longer for their petitions and applications to be reviewed. Also included in the USCIS budget is over $100 million to improve E-Verify and reduce the number of cases requiring manual verification by about 80,000 cases annually.
Department of State. While the investment in USCIS is a positive signal that the President is willing to take steps to restore the agency to its mission of “adjudicat[ing] immigration benefit requests in a timely, accurate, consistent, and professional manner,” it remains unclear what commitment the President will make to ensure visas are efficiently processed overseas. The State Department budget includes additional money for its Consular and Border Security Programs, however, the budget documents do not reveal how much of that money will be spent undoing the damage of travel bans, pandemic restrictions, and staffing shortages—steps that must be taken to truly dismantle the invisible wall to legal immigration.
AILA and our partners will be watching carefully as the budget goes to Congress and is discussed in both chambers. By September 30, Congress will need to pass a new bill appropriating funds for FY 2022. We will continue to urge the administration and Congress to consider the challenges our members and their clients face every day in the current dysfunctional immigration system and show why reform is so clearly needed.