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EL PASO, Texas — Some cross the Rio Grande River in broad daylight. Others trek across the mountain range from Mexico into the U.S. Far from trying to hide, many migrants cross the border and look for Border Patrol to turn themselves in.
In the past, migrants arrested at the border who showed a credible fear of returning to their home country had the chance to post bail and remain free in the U.S. while their cases moved through the courts. But Attorney General William Barr revoked their right to ask an immigration judge for bond in an order issued earlier this month.
Instead, tens of thousands of migrants may be detained during the months and sometimes years-long asylum proceedings.
“This is massive,” said Yael Schacher, a senior advocate at Refugees International. “Barr’s ruling puts the vast majority of single, adult asylum seekers in prison while they wait out their cases.”
There’s just one hitch: The beds to detain them don’t yet exist.
“We don’t have bed space. Everybody knows all these people have to be released,” Chris Crane, president of the National Immigration and Customs Enforcement (ICE) Council, a union representing agency employees, told VICE News last month, before Barr issued his ruling.
Barr's changes don't take effect until July, but immigration advocates are already mapping out possible scenarios that would allow ICE to detain thousands more migrants in such a short period of time.
“What can they do in 90 days? They can build a tent city in 90 days”
“What can they do in 90 days? They can build a tent city in 90 days,” Schacher said.
The administration has been quietly ramping up its efforts to build new detention space. The Department of Defense awarded a $23 million contract in February to build a “Contingency Mass Migration Complex” at Guantanamo Bay. ICE has also signed new contracts with state and local prisons and jails that would give the agency 3,000 additional beds to hold migrants, according to the New York Times.
The Department of Homeland Security declined to comment for this story and referred questions to the Department of Justice, which didn’t respond. In a statement, an ICE spokesperson told VICE News: “ICE makes custody determinations on a case-by-case basis, in accordance with U.S. law and Department of Homeland Security (DHS) policy.”
In theory, Congress has control over ICE’s budget for detention and allocated money for 40,520 detention beds in 2019. But ICE keeps surpassing the cap by drawing on other, flexible funds. The agency detains around 49,000 people daily, and an average of 29,000 of them have recently crossed the border, according to ICE statistics provided to Congress.
It’s unclear how many more beds ICE would need to fulfill Barr’s ruling, which makes it nearly impossible for asylum seekers who cross into the country illegally and pass a credible fear interview to post bond. (That was already the case for asylum seekers who crossed legally at ports of entry.)
Nearly 75,000 migrants passed a credible fear interview in fiscal year 2018, although that includes unaccompanied minors and families, who are exempted from Barr’s decision. A long-standing court order limits the amount of time of migrant children can be held in detention to 20 days, which makes it difficult for ICE to hold them in detention. (Republicans in Congress have proposed legislation to get around that limitation.)
Even excluding families and children — who comprise a majority of the asylum seekers crossing the border — ICE doesn’t appear to have the capacity to take in a massive influx of single adults, said John Sandweg, former acting director of ICE under Obama.
“The real impact will be felt if they start building mass detention facilities”
“In the context of this current crisis, it’s not going to make much of a difference because the driving impact is capacity,” Sandweg said. “The real impact will be felt if they start building mass detention facilities.”
For now, the signals are mixed. ICE is emptying out existing family detention facilities, potentially to convert them into adult detention centers, although it’s unclear what’s motivating the releases. One facility in Dilley, Texas, is operating at around 30 percent capacity. The shelter, which can hold around 2,000, now has just 700 people. A second facility, in Leesport, Pa., is at 19 percent capacity, according to The Guardian. A third, in Karnes City, Texas, has been converted to house adult females.
Sandweg said that makes sense because “family detention is wildly inefficient,” given that ICE spends around $300 per bed per day but can only detain families for 20 days.
Manufacturing a crisis
But Peter Schey, executive director of the Center for Human Rights and Constitutional Law, said the empty facilities show that Trump is “manufacturing” the crisis at the border.
“They are sitting empty or close to empty at the same time they are pretending — as part of the narrative to support the national emergency at the border — that they are overwhelmed and don’t have bed space,” he said.
At the same time, the administration is ramping up its processing facilities along the border.
DHS awarded New York-based Deployed Resources a $36.9 million contract to build 500-person capacity tents in El Paso and Donna, Texas. The tents, which are expected to start operating by May 5, are intended to serve as processing centers that won’t hold migrants for more than 72 hours.
Democratic Congresswoman Veronica Escobar, who represents the El Paso area, says she supports the tents, as long as they don’t become permanent and migrants aren’t held there for long-term detention.
“This is far better than having people sleep outside under a bridge on rocks,” she said, referring to the open-air, fenced enclosure where Border Patrol was holding hundreds of migrants in late March. Border Patrol claimed it had no other space to process them.
But, Escobar added, she worries about the prospect of long-term detention facilities. “It’s almost as if there is this bottomless pit of money for this inhumane approach when we know that alternatives to detention are as effective, far more humane, and significantly less costly to the taxpayer.”
Cover: Migrants are gathered inside the fence of a makeshift detention center in El Paso, Texas on Wed. March 27, 2019. Border Patrol in El Paso is saying that they are overwhelmed with unprecedented number of migrants at over 12,000 currently in custody. (Photo by Sergio Flores for The Washington Post via Getty Images)