DHS Ramps Up Immigration Detention Space

As I noted on August 2, section 90003(a) of the recently enacted One Big Beautiful Bill Act (OBBBA) provides, “$45 [billion] for single adult alien detention capacity and family residential center capacity”, in addition to funds ICE has already been appropriated for that effort, which will be available through the end of FY 2029. DHS isn’t waiting four years, however; it’s quickly ramping up immigrant detention across the United States with the help of GOP governors and the military at some colorfully monikered facilities.

Immigration Detention

Immigration detention is very different from criminal incarceration and serves different purposes. As the ICE “Detention Management” web page explains:

Detention is non-punitive. Once an alien is transferred to ICE custody, the agency makes a custody determination. ICE uses its limited detention resources to detain aliens to secure their presence for immigration proceedings or removal from the United States — as well as those that are subject to mandatory detention, as outlined by the Immigration and Nationality Act, or those that ICE determines are a public safety or flight risk during the custody determination process.

Section 236(a) of the Immigration and Nationality Act (INA) authorizes ICE to arrest removable aliens on administrative warrants, and permits immigration officers to then detain those aliens or to release them on bond or conditional parole, subject to exceptions discussed below.

By regulation, if an immigration officer denies an alien’s request for release under section 236(a) of the INA, that alien can seek bond review from ICE or an immigration judge and can file an appeal of a bond denial with the Board of Immigration Appeals (BIA).

Certain detained aliens aren’t eligible for release, however.

ICE needs detention beds and has money — and GOP governors are happy to help.

Under section 236(c) of the INA, aliens inadmissible to the United States on criminal and national security grounds, admitted aliens who are removable on national security and certain criminal grounds of deportability, and aliens who have been arrested for or convicted of “burglary, theft, larceny, shoplifting, or assault of a law enforcement officer offense, or any crime that results in death or serious bodily injury to another person” are subject to mandatory detention.

What’s more, that provision mandates that ICE take those aliens immediately into custody, “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense”.

Congress added that immediate-detention requirement to section 236(c) of the INA in 1996 because the then-Immigration and Naturalization Service (INS) wasn’t doing an adequate job of taking criminal aliens off the street, a quaint relic of a simpler time when Americans agreed crime was a bad thing.

In addition, section 241(a)(2) of the INA requires ICE to take aliens under final removal orders into custody pending deportation for a 90-day “removal period” (defined in section 241(a)(1) of the act), and further states that “under no circumstance” shall the agency release aliens ordered removed under any of the criminal grounds of inadmissibility or deportability during that period.

Finally, the Trump administration has recently decided that mandatory detention provisions for arriving aliens at the borders and the ports in sections 235(b)(1) and (2) require ICE to detain any alien present here who hasn’t been admitted to the United States, and to deny them release on bond.

Biden’s Intransigence and Congress’s Response

The Biden administration nonetheless concluded it had “prosecutorial discretion” to ignore sections 236(c) and 241(a)(2) of the INA, and fought a legal effort by Texas and a coalition of other states to force ICE to arrest and detain criminal aliens all the way to the Supreme Court, in U.S. v. Texas.

The majority of justices in Texas concluded that even states lack standing to force the federal government to comply with the INA’s mandatory detention requirements, which led Congress to reassert its authority over the issue in the Laken Riley Act, the first bill passed in the current (119th) Congress.

Among other things, section 3 of that act statutorily reversed the Court’s standing finding in Texas by specifically authorizing state attorneys general to sue DHS in federal court if it attempts to release aliens subject to detention under sections 236(c) and 241(a)(2) of the INA, as well as inadmissible “applicants for admission”, whom section 235(b) requires DHS to detain.

Current ICE Detention Capacity

According to the Transactional Records Access Clearinghouse (TRAC), ICE had more than 59,000 alien detainees in its custody as of August 10, three-quarters (75 percent) of whom were arrested by ICE in the interior and the other 25 percent encountered by CBP at the borders and the ports.

More than 31,000 of those detainees were booked into detention in July as per TRAC, meaning roughly 28,000 others had been detained for more than a month.

ICE reports that the average length of stay for adult aliens in its facilities was just over 63 days at the end of July, while alien family detainees spent just less than 19 days in “family staging centers” (FSCs).

Given that the Center estimates roughly 14.2 million illegally aliens are currently present in the United States, that some number of aliens in status have committed or will commit criminal offenses rendering them removable from this country, and that CBP continues to encounter inadmissible aliens at the borders and the ports (albeit in much lower numbers than under the prior administration) and subject to detention, the agency plainly needs more detention space.

ICE Detention Facilities

While ICE owns and operates a handful of detention facilities, most of its detention space is rented out either from contractors or from state and local prisons and jails.

When I was an immigration judge, for example, my courtroom was attached to the York County (Pa.) prison, one of three county facilities in the Keystone State that provided ICE detention space at the time.

It was a good deal for the county, because ICE paid for that detention space, allowing the county to receive compensation for filling vacant beds not occupied by county detainees. It was a good deal for ICE as well, because the agency didn’t need to invest its own funds for construction or to hire large numbers of federal employees to hold, feed, and provide medical care for its detainees.

“Alligator Alcatraz”

Various states are now rushing to provide detention services to the agency (for a price), the highest-profile facility being Florida’s “Alligator Alcatraz” on the former site of the state’s Dade-Collier Training and Transition Airport. When fully completed, that 3,000-bed (and possibly more) facility is expected to cost $450 million, which the state is fronting pending federal reimbursement.

On June 25, Florida Gov. Ron DeSantis (R) took to X (previously Twitter) to explain:

Since then the facility has garnered a certain level of controversy, and two lawsuits have been filed in response to it.

As CNN reports, one was brought by environmental groups and a Native American tribe, which are seeking “to block operations and construction at the site until environmental laws are followed”.

The second suit was filed against both DHS and the state in mid-July by the American Civil Liberties Union (ACLU) and other advocates on behalf of detainees at Alligator Alcatraz.

The plaintiffs allege that the federal government is “attempt[ing] to prevent people detained in civil immigration custody at Alligator Alcatraz from communicating with legal counsel and from filing motions with the immigration court that could result in their release from detention”.

On August 18, Judge Rodolfo Ruiz II of the U.S. District Court for the Southern District of Florida issued an order dismissing one of the counts in the plaintiffs’ complaint (alleging Fifth amendment violations) and changing venue to the U.S. District Court for the Central District of Florida (which has jurisdiction over Alligator Alcatraz), while allowing their First amendment claims about access to counsel to continue.

Despite his critics (or possibly to spite his critics), on August 14 DeSantis tweeted out news about a second ICE detention facility in the Sunshine State, “Deportation Depot”:

Other States

The controversy and lawsuits over Alligator Alcatraz have not stopped other states from following Florida’s lead.

On August 19, for example, Nebraska Gov. Jim Pillen (R) announced that he and DHS Secretary Kristi Noem had agreed on a proposal for an immigration detention center in the town of McCook (pop. 7,360) that would house 280 aliens, which the state has dubbed the “Cornhusker Clink”.

The announcement prompted the following DHS tweet:

On August 5, DHS announced it had entered into “a new partnership with the state of Indiana to expand ICE detention space by 1,000 beds” at the Miami Correctional Center near Bunker Hill, Ind., christened the “Speedway Slammer”.

Personally, I think “Hoosier Hoosegow” would have been a better choice, but in any event Gov. Mike Braun (R) lauded the effort, stating:

We are proud to work with President Trump and Secretary Noem as they remove the worst of the worst with this innovative partnership. … Indiana is taking a comprehensive and collaborative approach to combating illegal immigration and will continue to lead the way among states.

DHS had its own special tweet for that one, as well:

Military Facilities

It’s not just states that are getting in on the immigration detention business. Last week, Fort Bliss, a massive U.S. Army base in El Paso, Texas, opened its doors to detainees at its Camp East Montana, the “Lone Star Lockup”. As Time reported:

More than $1 billion will be invested in the detention center to expand its current 1,000-bed capacity to hold up to 5,000 people. Immigrants who are currently in removal proceedings or final removal orders are expected to be detained at the facility.

That facility includes “legal access areas, medical treatment areas and recreational space — amenities [ICE] officials say make it like a traditional facility” according to the local CBS affiliate.

The Lone Star Lockup didn’t sit well with the ACLU, however. In an August 17 statement, it complained:

The detention camp’s opening is the latest escalation in President Trump’s dystopian agenda to detain and deport millions of immigrants from communities nationwide.

…

This expansion marks another shameful chapter in Fort Bliss’ history, as the facility was used to intern German and Italian immigrants and people of Japanese descent during World War II, and later used to detain unaccompanied children in 2016 and from 2021 to 2023, where some were subjected to severe abuse.

Note that the latter period of occupancy was during the Biden administration.

Expect more “red” states to offer up immigration detention space, even as Democratic hotspots like New Jersey, Maryland, and California are trying to impede ICE from detaining aliens in their jurisdictions. The agency needs beds and has money — and GOP governors like DeSantis, Pillen, and Braun are happy to help.