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Before Alexandria Ocasio-Cortez upset top-ranking Democrat Joe Crowley in a New York congressional primary election in June, she laid out her stance on Immigration and Customs Enforcement, or ICE, in an interview with The Intercept.
"The fact that they operate without the accountability of the Department of Justice is extremely concerning to us all," said the Democratic candidate for Congress in New York’s 14th Congressional District, who has recently become well-known for leading calls to "abolish ICE".
Ocasio-Cortez went on to say the fact that ICE operates under the Department of Homeland Security, rather than the Department of Justice, is problematic.
"As a matter of fact, ICE is the only criminal investigative agency, the only enforcement agency in the United States that has a bed quota. So ICE is required to fill 34,000 beds with detainees every single night and that number has only been increasing since 2009," Ocasio-Cortez stated.
Ocasio-Cortez’s claim had us wondering: Is ICE required to fill 34,000 beds with detainees every night?
Although the experts we spoke to told us ICE faces pressure from a variety of places to detain a large number of people, we found the legislation Ocasio-Cortez was referring to doesn’t require ICE to detain 34,000 people a day. Rather, it requires ICE to maintain 34,000 available beds a day.
‘Beds, not people’
Ocasio-Cortez was referring to a clause in the DHS Appropriations Act of 2016, which states that with the funds it receives from Congress through the act, ICE "shall maintain a level of not less than 34,000 detention beds through September 30, 2016."
According to Jessica Vaughan, Director of Policy Studies at the Center for Immigration Studies, the mandate exists because Congress wants to "make sure that ICE does not use the detention bed money for something less effective."
The mandate first appeared in the DHS Appropriations Act of 2010.
So while Congress requires ICE to make 34,000 beds available each day, it doesn’t require those beds to be filled.
This isn't the first time this figure has come up. During a congressional hearing in 2014, U.S. Rep. Raúl Labrador, R-Idaho, asked then-DHS Secretary Jeh Johnson for clarification on the detention bed quota, as it is known.
"There is nothing in the law that is mandating you to put 34,000 people on these beds. Is that correct?" Labrador asked.
To which Johnson responded: "I don’t read the law that way. It doesn’t read that way … It says beds, not people."
Peter Margulies, a professor of law at Roger Williams University, told us, "unfortunately, this became a little bit of an urban legend, in a way, about what the appropriations statute required."
An ICE official also confirmed to PolitiFact that the language in the appropriations bills require ICE to maintain at least 34,000 beds each day, but don’t require ICE to fill those beds.
However, according to a DHS report, in order to track compliance with the congressional mandate, ICE measures its "average daily population." So while the letter of the law may not require ICE to detain 34,000 people each day, it may have been in ICE’s best interest to act like it did.
Under DHS Secretary Johnson, ICE’s position was clear: 34,000 beds needed to be available, but not necessarily filled. But DHS secretaries have interpreted the appropriations legislation differently.
In a 2013 congressional hearing, then-DHS Secretary Janet Napolitano hinted that the detention bed quota was tying ICE’s hands, saying that "we ought to be managing the actual detention population to risk, not to an arbitrary number."
Mark Fleming, associate director of litigation at the National Immigrant Justice Center, told us that bureaucracy is a driving force behind the increased detention.
"A plain reading of the statute would be that they (ICE) just need to have the beds available but not fill them. I think in practice, they have felt that they needed to fill them (because) they are being funded for those beds and they don't want to lose that funding."
Has the number always been increasing?
Ocasio-Cortez also stated that that number "has only been increasing since 2009."
Though we’ve already established that no such numerical detainee requirement exists in the law for ICE, we decided to see if this part of Ocasio-Cortez’s claim was correct by looking at how the language in the appropriations bills changed from year to year.
We found that her claim was not accurate.
Experts confirmed with us that the detention bed quota language had been eliminated in 2017, and did not reappear in the current bill.
While ICE’s average daily population has overall been on the rise since 2009, to say that the number tied to the detention bed quota has risen, as Ocasio-Cortez did, is inaccurate.
Ocasio-Cortez claimed that "ICE is required to fill 34,000 beds with detainees every single night and that number has only been increasing since 2009."
The language in the congressional appropriations bills from 2009 through 2016 only mandates that ICE keep at least 33,400 (later 34,000) beds available. The bills don’t state that those beds need to be filled. Under different DHS secretaries, the government’s interpretation of the law has varied as to whether the beds need to be filled or not.
In addition, the last time the language requiring ICE to maintain a certain number of beds appeared in an appropriations bill was 2016. So, Ocasio-Cortez’s claim that the "number (of detainees ICE is required to detain) has only been increasing since 2009" is inaccurate.
We rate Ocasio-Cortez’s claim False.
The Intercept, "An Interview With Alexandria Ocasio-Cortez, The Young Democratic Socialist Who Just Shocked the Establishment," June 27, 2018, 2:54 pm
Email interview with Corbin Trent, Communications Director, Alexandria Ocasio-Cortez 2018, June 29-30, 2018
Email exchange, Immigration and Customs Enforcement press office, July 2, 2018
Interviews with Mark Fleming, associate director of litigation, National Immigrant Justice Center, July 2, 2018
Email interview with David Bier, Immigration Policy Analyst, Cato Institute, July 2, 2018
Email interview with Denise Gilman, law professor and director of the immigration clinic at the University of Texas School of Law, July 2, 2018
Interviews with Peter Margulies, immigration law and national security law professor at Roger Williams University School of Law, July 2-3, 2018
Email interview with Shoba Sivaprasad Wadhia, Director, Center for Immigrants’ Rights Clinic, Penn State Law, July 2, 2018
Email interview with Michelle Mittelstadt, Director of Communications and Public Affairs, Migration Policy Institute, July 2, 2018
Email interview with Jessica Vaughan, Director of Policy Studies, Center for Immigration Studies, July 5, 2018
National Immigrant Justice Center, "Detention Bed Quota," Accessed July 2, 2018
National Immigrant Justice Center, "Immigration Detention Bed Quota Timeline," January 2017
Congress, Consolidated Appropriations Act, 2012
Congress, Consolidated Appropriations Act, 2014
Congress, Consolidated Appropriations Act, 2015
Congress, Consolidated Appropriations Act, 2016
Congress, Consolidated Appropriations Act, 2017
Congress, Consolidated Appropriations Act, 2018
C-SPAN, "Rep. Labrador on Bed Quota," June 2, 2014
C-SPAN, "Rep. Deutch at DHS Hearing," June 2, 2014
Department of Homeland Security, "ICE’s Release of Immigration Detainees," August 2014
Department of Homeland Security Appropriations for 2014, "Hearings Before a Subcommittee of the Committee on Appropriations, House of Representatives, One Hundred Thirteenth Congress, First Session," April 11, 2013
The Washington Post, "Clinton’s inaccurate claim that immigrant detention facilities have a legal requirement to fill beds," May 15, 2015
PolitiFact, "‘Abolish ICE’ movement is growing. Is the agency’s disbanding likely?," July 2, 2018
Migration Policy Institute, "Profiting from Enforcement: The Role of Private Prisons in U.S. Immigration Detention," May 2, 2018
Center for Immigration Studies, "DHS Sec. Johnson Disputes Detention Bed Mandate," March 14, 2014
Politico, "ICE union endorses Trump," September 26, 2016
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