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Is Trump using hurricane relief money to fund ICE? Not exactly.

But the Trump administration is taking $200 million from other parts of the Department of Homeland Security instead of staying within its budget on immigrant detention.

The Trump administration transferred $200 million — including $10 million from FEMA — to Immigration and Customs Enforcement (ICE) over the summer for immigrant detention. The move is being criticized as Hurricane Florence approaches, but it’s part of a bigger trend of ICE overspending its detention budget.
Left: Mario Tama/Getty; Right: David McNew/Getty

As Hurricane Florence barrels toward the East Coast, threatening to make landfall as the biggest hurricane north of Florida in recorded history, the Trump administration is facing accusations that it took money out of the FEMA budget to pay for its immigration crackdown.

Sen. Jeff Merkley (D-OR) released documents earlier this week in which DHS notifies Congress that it’s transferring $200 million from the budgets of various agencies — including nearly $10 million from FEMA — to ICE to pay for immigrant detention and deportation through the end of the fiscal year on September 30.

Merkley and other Trump critics and media outlets accuse DHS of cutting $10 million from “hurricane relief” to fund ICE — which isn’t exactly true. Only a portion of those funds was cut from the office inside FEMA that organizes emergency operations, and none came from the agency’s Disaster Relief Fund. But the outcry has called attention to a phenomenon that’s happened quietly over the last couple of years: ICE outspends its budget to keep tens of thousands of immigrants in detention, then asks Congress, or other agencies, to make up the difference.

DHS took $200 million from a bunch of agencies, including FEMA, to keep detaining and deporting immigrants

The documents released to the public by Sen. Merkley’s office Tuesday night are a summary of the funds that the Department of Homeland Security has “transferred” or “reprogrammed” between various agencies and divisions this summer. Congress allows the department to shift some money around, as long as certain requirements are met and as long as Congress gets notified.

(Typically, the point Congress member on appropriations for the department for both parties — the chair from the majority party, and the ranking member from the minority party — are asked for approval, though the ranking member doesn’t actually need to approve for the funds to be shifted.)

According to the newly released documents, DHS moved around more than $200 million to make ends meet through the end of the fiscal year.

A third of that money came out of the budget of Customs and Border Protection; the TSA and the Coast Guard each contributed a sixth. But what grabbed Merkley’s attention, and the public’s, was the $9.8 million from the budget of FEMA.

FEMA is under a lot of scrutiny right now after the administration’s poor response to Hurricane Maria, in which nearly 3,000 people died (contrary to Trump’s rosy assessment of the situation) and which left parts of Puerto Rico without electricity for the better part of a year. Taking any money from the agency might be shocking — especially since hurricane season peaks in late August and September, toward the end of the fiscal year and after these funds were transferred.

But there’s a difference between “money in the FEMA budget” and “money for hurricane relief.”

The Trump administration points out that the $9.8 million transferred from FEMA didn’t come out of the Disaster Relief Fund that is specifically appropriated for major disasters. Instead, it came out of the agency’s “operations and support” fund. DHS characterizes that fund as used for administrative expenses: Examples listed by a DHS official included “employee travel expenses, training, basic purchase cards, office supplies, HQ overhead support.”

What complicates this slightly is that one of the things funded by FEMA “operations and support” is the agency’s Office of Response and Recovery, which organizes the agency’s emergency operations and rebuilding efforts. About $2.5 million of the transferred funds came out of the response and recovery budgets.

In its official explanation for the funds transfer, the Trump administration describes the cuts this way: “Mission impact is minimized as FEMA will curtail training, travel, public engagement sessions, IT security support and infrastructure maintenance, and IT investments in the legacy grants systems.”

DHS said this was money that had already been saved and was going to expire at the end of the fiscal year unless otherwise used. And the funds taken from response and recovery only make up about 0.2 percent of the Operations and Support budget. So while the Trump administration will likely face fierce criticism if its response to Florence is inadequate, it’s not clear that a few million more dollars in the agency’s coffers would make the difference between success and catastrophe.

ICE has a history of outpacing its budget — especially when it comes to detention

The real story in the documents released by Merkley isn’t where the money is coming from, it’s where it’s going to.

Almost all the funds were transferred to ICE. Over half went to “transportation and removal” — the flights that physically deport migrants from the US. The remainder went to funding immigration detention.

This isn’t an emergency move to respond to an unforeseen crisis. It happened because Congress funded ICE to detain about 38,000 immigrants at any given time — and they’ve been detaining more than 40,000, thus burning through their money faster than budgeted.

ICE has a lot of flexibility in choosing whether or not to detain immigrants who’ve been arrested but are still awaiting their court hearings, or who have been ordered deported but haven’t physically been put on the plane yet. Many of the options ICE has for monitoring immigrants are cheaper than detention.

Congress is fully aware of this. It sets a level for ICE detention capacity — an “average daily population” of detained immigrants — and gives ICE enough money to maintain that capacity.

Over the past couple of years, however, ICE has detained more immigrants than it’s funded to, then asked Congress and other agencies to make up the shortfall.

The newly released documents openly admit that ICE has been detaining more immigrants than it’s currently funded to do. “ICE forecasts an EOY [end of year] ADP [average daily population] of 40,379 adult detainees based on current operations. This is 2,359 above the enacted adult ADP of 38,020,” the document says.

Appropriators in Congress — even Republicans — have been losing patience over this. The omnibus bill Congress passed in March (which Trump momentarily threatened to veto because it didn’t spend enough on immigration enforcement) told ICE to restrict its detention for the rest of the year to come in within its budget. (At the time, it was budgeted for 39,425 detention beds and using more than 1,000 extra beds a night.)

Furthermore, it instructed ICE to “update the Committees weekly on its rate of operations for Custody Operations to demonstrate how the agency is living within its means.”

The new documents show that ICE has barely, if at all, curbed its use of immigration detention. And while it didn’t go back to Congress to ask for the money to make up the gap, it did have to take money from elsewhere in the department.

The Trump administration sees it as a straightforward act of triage: taking money that wasn’t being used to support the department’s mission because it was administrative, or represented cost savings, and using it for the most urgent need. But the real question is whether ICE really needs to maintain current detention capacity — and, if so, why Congress wasn’t originally willing to give ICE the money to detain 40,000 immigrants a night.

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