On his campaign website, then-candidate Joe Biden vowed to “end for-profit detention centers,” asserting tendentiously that “no business should profit from the suffering of desperate people fleeing violence.”
“For-profit” in this context is a pejorative used to describe privately run detention facilities, and such assertions elide many key facts — including that federal law requires certain migrants be detained and that these private facilities must comply with the same detention standards that federal facilities are expected to meet and do so in a cost-effective manner — in substituting base emotion for reason.
The Immigration and Nationality Act (INA) is the cornerstone of our nation’s immigration laws. It mandates — in no uncertain terms — that migrants who are stopped entering the United States illegally or without proper documents are subject to detention from the moment they are encountered until they are either granted immigration relief or removed.
Similarly, the INA requires the Department of Homeland Security to “take into custody” migrants removable on certain criminal grounds “when the alien is released,” and to release them only in limited circumstances.
Finally, the INA requires DHS to detain migrants under final orders of removal for a period pending their deportation from the United States and “under no circumstance” release those ordered removed on criminal grounds.
Despite these statutory requirements, however, the number of migrants placed into detention under the Biden administration had plummeted, at least compared to recent years when detention facilities were not under COVID-related space restrictions.
For example, U.S. Immigration and Customs Enforcement (ICE), which oversees most administrative immigration-related detention, reports it “booked” more than 44,000 migrants into detention in November 2019. Initial ICE book-ins in November 2022, however, totaled just 13,030 — a 70% drop compared to the comparable month three years earlier, even as the number of illegal entrants has soared.
Privately owned facilities offer a cost-effective alternative for holding migrants who Congress has directed DHS to detain. As former acting ICE Director Tom Homan explained in December 2020: “These companies are used widely because they do the job better and cheaper than the local, state or federal government could.”
Consider the costs. When ICE builds a detention facility, it must procure land, hire construction companies and pay for building materials — a process that can take years and cost millions. If that facility is no longer needed, it still sits on the government’s ledger, accruing expenses.
However, when the agency contracts with a private company for detention space, those costs — and any attendant risks of delays or cost overruns — are borne by that contractor. When the contract ends, it’s over, and the government is no longer liable for maintenance or upkeep.
Private detention contractors also pay wages and provide benefits to their employees. That’s a set cost to the government for the term of the contract.
On the other hand, ICE must staff its facilities with government employees, who often receive ample federal pay and are also entitled to access the Federal Employees Retirement System. As a retired federal employee, I can assure you that those benefits are generous and can continue long after service is completed.
Moreover, like ICE, private detention contractors are subject to the strenuous restrictions of the agency’s Performance-Based National Detention Standards 2011.
As DHS explains, those standards reflect “ICE’s ongoing effort to tailor the conditions of immigration detention to its unique purpose while maintaining a safe and secure detention environment for staff and detainees,” and were crafted with “the input of many agency employees and stakeholders, including the perspectives of nongovernmental organizations and ICE field offices.”
Private facilities are also subject to stringent oversight. It’s not just ICE that ensures compliance with health and safety standards; contractors must also answer to the DHS inspector general, the Government Accountability Office (Congress’ “watchdog”), members of Congress, and congressional committees and their staffs.
Reasonable minds can argue whether migrants unlawfully present, under final orders of removal, or with criminal records, should be detained pending removal. Such disagreements, however, should not overshadow these objective facts: Private immigration detention facilities are subject to rigorous compliance standards and oversight, providing a safe and cost-effective alternative to federal detention.
Ignore the noise and sanctimony; focus on the facts.
Andrew “Art” Arthur is a resident fellow in law and policy for the Center for Immigration Studies. He wrote this for InsideSources.com.