ICE is required to fill 34,000 beds with detainees every single night and that number has only been increasing since 2009.
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. Unwritten rules 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. The DHS appropriations bills from 2010 to 2016 all included similar bed quotas. But the most recent 2017 and 2018 appropriations bills contained no such language. 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. Our ruling 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. ​ See Figure 1 on PolitiFact.com
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