Covering appropriations bills for the Department of Homeland Security; Commerce, Justice, Science; and Labor, Health and Human Services

With this year’s spending bill, Congress had a pivotal opportunity to make significant shifts towards a humane immigration system, but instead generally left in place bloated enforcement funding levels from the Trump era. We are grateful to the members of Congress who heard community demands for a shift in our immigration system, and look forward to continuing to work with these offices and new members in the next Congress to push for more community investment and less wasteful enforcement.

With regard to funding that impacts immigrant communities, the FY23 omnibus spending bill generally represents a continuation of the funding levels and instructions from the FY22 spending bills. This is particularly disappointing given that the FY22 levels themselves represented, generally, a continuation of FY21 spending levels and instructions – bills and reports that were written during the Trump administration and reflected that administration’s enforcement-centered approach to immigration and border policy.

We are pleased to see a new well-funded grant program available for the localities and non-government organizations providing life-saving support and respite for asylum seekers and migrants arriving on the border.

Below is a brief outline of highlights and lowlights.
 

Lowlights:

• Appropriated funds for ICE and CBP: ICE’s overall appropriation has increased slightly from $8.3 billion in FY22 to $8.4 billion in FY23. CBP’s overall appropriation has increased from $14.6 billion in FY2022 to $16.5 billion in FY2023. NIJC continues to call for cuts in funding for ICE and CBP enforcement and detention.
   
• Failure to decrease immigration detention: Although the White House budget request and the draft Senate and House FY23 DHS spending bills all proposed significant cuts to ICE’s custody operations funds, the FY23 omnibus essentially continues the same funding ICE has received to jail immigrants since FY21 - funding designed to allow the daily detention of approximately 34,000 individuals. This failure is a tragic waste of an opportunity to decrease the size of ICE’s deadly detention system.
   
• Funding for more Border Patrol agents and wasteful border surveillance: Despite mountains of evidence documenting corruption and endemic abuse within Border Patrol, the DHS bill provides funding for a total of 19,855 Border Patrol agents, including 300 more than FY22. The bill also increases funding for border technology, including for unmanned drones, surveillance towers, and data sharing systems that are a windfall for contractors at the expense of privacy and civil liberties.
   
• Omission of critical policy provisions: The omnibus and accompanying Joint Explanatory Statement do not include numerous provisions included in the House and Senate drafts that would have advanced due process and civil rights protections in the use of funds in immigration policy. Specifically, we are disappointed that the DHS bill does not include a section included in both the House and Senate drafts requiring ICE to conduct individualized custody determinations for all people in ICE custody. The bill also does not include provisions included in the House and Senate drafts that would recapture unused visas, unnecessarily precluding countless immigrants from obtaining stability and legal status. It is also devastating to see the Afghan Adjustment Act excluded from this vehicle, leaving thousands of refugees in limbo.
   
• No legal representation pilot program for adults in immigration court proceedings: The omnibus provides no new funding for critically needed legal representation for adults or families in immigration court proceedings. The CJS bill provides $29 million in Legal Orientation Program funding, a modest increase of $5 million from FY22, and insufficient to address the overwhelming demands placed on legal service providers by new programs rolled out by the Biden administration with expedited timeframes (including the Asylum Processing Rule and the expedited family docket). 

Highlights: 

• $800 million Shelter and Services grant program: The omnibus provides $800 million, transferred from CBP to FEMA, for a new Shelter and Services grant program with the goal of supporting states, localities and NGOs providing shelter and respite to recently arrived migrants. The funds are to be administered by FEMA as grants or cooperative agreements with state and local governments and NGOs, including up to $50 million for construction and expansion of shelter facilities. The majority of the funds are to be made available through the existing FEMA Emergency Food and Shelter Program until transition to the new Shelter and Services grant program is complete.
   
• Increase in funding for FEMA’s Case Management Pilot Program: The omnibus provides $20 million for FEMA to administer the Case Management Pilot Program, a new program currently under development by an NGO-led board that is intended to provide community-based case management services for asylum seekers and immigrants in removal proceedings. Of note, the DHS bill did not grant the administration’s request to increase funding for ICE’s Alternatives to Detention account and instead continues FY22 funding. While we are relieved to see no increase in ATD funds, we continue to encourage Congress to decrease funding for ICE’s enforcement- based ATD programming and instead shift funds to the Case Management Pilot Program.
   
• New reporting requirements for the use of solitary confinement: The Joint Explanatory Statement accompanying the DHS bill requires ICE to make data publicly available regarding its use of solitary confinement for people deemed to be members of “vulnerable or special populations,” including the number of days ICE holds individuals in solitary confinement, the basis for the use of solitary, and the process for re-evaluation of placements. 

Increased funding for legal services and child advocates for unaccompanied children: The LHHS bill provides an increase from $558 million (FY22 levels) to $750 million for legal services, post-release services, and child advocates for unaccompanied children in HHS custody.