Shut­down talks reach an im­passe

Par­ties dis­agree about ICE de­ten­tion ca­pac­ity

The Washington Post - - FRONT PAGE - BY ERICA WERNER, DAMIAN PALETTA AND SEUNG MIN KIM

The na­tion faces the real pos­si­bil­ity of an­other gov­ern­ment shut­down at the end of this week af­ter bi­par­ti­san talks aimed at avert­ing that out­come broke down in a dis­pute over im­mi­gra­tion en­force­ment, law­mak­ers and aides said Sun­day.

Pres­i­dent Trump’s bor­der wall de­mands, which pre­cip­i­tated the record-long 35-day shut­down that ended late last month, were a sec­ondary is­sue in the im­passe that de­vel­oped over the week­end, ac­cord­ing to of­fi­cials in both par­ties.

In­stead, af­ter look­ing promis­ing for days, the del­i­cate ne­go­ti­a­tions col­lapsed over Democrats’ in­sis­tence on lim­it­ing the num­ber of unau­tho­rized im­mi­grants who can be de­tained by the U.S. Im­mi­gra­tion and Cus­toms En­force­ment agency. The break­down in talks made it un­likely that law­mak­ers will be able to fi­nal­ize an agree­ment on Mon­day, as they’d hoped to do so it could pass the House and Se­nate be­fore Fri­day night’s dead­line.

“I think the talks are stalled right now,” Se­nate Ap­pro­pri­a­tions Chair­man Richard C. Shelby (Ala.), the lead Repub­li­can ne­go­tia­tor, said on “Fox News Sun­day.” “I’m not con­fi­dent we’re go­ing to get there.”

The stale­mate left the path to keep­ing the gov­ern­ment open un­clear. There were be­hind-thescenes ef­forts late Sun­day to sal­vage the talks, but it was un­cer­tain whether they would be suc­cess­ful.

The Home­land Se­cu­rity, State, Agri­cul­ture and Com­merce de-

part­ments and a num­ber of other fed­eral agen­cies are op­er­at­ing on a stop­gap spend­ing bill that Trump signed Jan. 25. There’s lit­tle ap­petite for an­other short­term fund­ing ex­ten­sion, but with­out some ac­tion by mid­night Fri­day, those agen­cies will run out of money and be­gin to close again.

An­other fund­ing lapse could af­fect many Amer­i­cans within days be­cause one of the agen­cies that would go un­funded dur­ing the shut­down is the In­ter­nal Rev­enue Ser­vice, which is pro­cess­ing tax re­turns for mil­lions of peo­ple. Dur­ing the shut­down that be­gan in late De­cem­ber, thou­sands of IRS of­fi­cials re­fused to show up for work with­out pay, caus­ing a back­log in the tax-fil­ing process.

The pres­i­dent, who is hold­ing a rally in El Paso on Mon­day night that is likely to fo­cus on his de­mands for more bor­der se­cu­rity, re­ferred to the dis­agree­ment in a se­ries of tweets Sun­day.

“I don’t think the Dems on the Bor­der Com­mit­tee are be­ing al­lowed by their lead­ers to make a deal. They are of­fer­ing very lit­tle money for the des­per­ately needed Bor­der Wall & now, out of the blue, want a cap on con­victed vi­o­lent felons to be held in de­ten­tion!” the pres­i­dent wrote.

Law­mak­ers on the 17-mem­ber con­fer­ence com­mit­tee had been trad­ing of­fers over how much money could go to bar­ri­ers along the U.S.-Mex­ico bor­der. They were look­ing at be­tween $1.3 bil­lion and $2 bil­lion — far short of the $5.7 bil­lion Trump had de­manded. The White House had be­gun to sig­nal flex­i­bil­ity on that is­sue, even though Trump would have ended up with much less money than he sought and the en­hanced fenc­ing or other bar­ri­ers agreed to by Congress would fall short of the 200-plus miles of steel walls he had wanted.

But through­out the talks, Democrats had also been fo­cused on lim­it­ing ICE’s abil­ity to de­tain unau­tho­rized im­mi­grants, which has be­come a ma­jor is­sue for the party be­cause of Democrats’ op­po­si­tion to the Trump ad­min­is­tra­tion’s ag­gres­sive de­ten­tion tac­tics. The Democrats’ pro­posal in­clud- ed a new limit on de­ten­tion beds for im­mi­grants picked up not at the bor­der but in the in­te­rior of the coun­try.

Democrats wanted to cap that num­ber at 16,500, which they said is around the level of in­te­rior de­ten­tions in the fi­nal years of the Obama ad­min­is­tra­tion, al­though it’s fewer than the num­ber de­tained un­der the Trump ad­min­is­tra­tion’s en­force­ment poli­cies. Repub­li­cans want to ex­clude a range of im­mi­grants from the cap. These would be peo­ple con­victed of, or charged with, a va­ri­ety of crimes, rang­ing from vi­o­lent felonies to mis­de­meanor drug of­fenses.

Democrats said that would make the cap tooth­less, be­cause it would al­low ICE to round up nu­mer­ous peo­ple with­out crim­i­nal records and also hold an un­lim­ited num­ber of peo­ple who, in some cases, have been charged only with mis­de­meanors.

Rep. Lu­cille Roy­bal-Al­lard (DCalif.), a mem­ber of the con­fer­ence com­mit­tee, de­fended the Demo­cratic po­si­tion on bed space.

“A cap on ICE de­ten­tion beds will force the Trump ad­min­is­tra­tion to pri­or­i­tize de­por­ta­tion for crim­i­nals and peo­ple who pose real se­cu­rity threats, not law-abid­ing im­mi­grants who are con­tribut­ing to our coun­try,” Roy­bal-Al­lard said in a state­ment.

The num­ber of ICE de­ten­tion beds has caused dis­putes since the start of the Trump ad­min­is­tra­tion, with the pres­i­dent try­ing to in­crease de­ten­tion ca­pac­ity and many Democrats try­ing to limit it.

Democrats, newly in con­trol of the House, have faced pres­sure from some lib­er­als in their ranks to draw a much harder line in their ne­go­ti­a­tions over the bor­der. Lib­er­als, in­clud­ing Rep. Alexan­dria Oca­sio-Cortez (D-N.Y.), have pro­posed en­tirely cut­ting fund­ing for ICE and re­fus­ing any ad­di­tional money for bor­der bar­ri­ers.

Democrats on the bi­par­ti­san ne­go­ti­at­ing com­mit­tee have re­sisted those de­mands. But Repub­li­cans quickly seized on the new dis­pute over de­ten­tion beds to try to lump all Democrats in with the most lib­eral el­e­ments of the party.

“Now, ap­par­ently, not only is it enough they want to abol­ish ICE. They want to abol­ish the bed spa­ces avail­able to the coun­try to house vi­o­lent of­fend­ers so they can be held and de­ported,” Sen. Lind­sey O. Gra­ham (R-S.C.) said on Fox News. “I prom­ise you this. Don­ald Trump is not go­ing to sign any bill that re­duces the num­ber of bed spa­ces avail­able to hold vi­o­lent of­fend­ers who come across our bor­der. He can’t do that. He won’t do that, and you can take that to the bank.”

The fight over im­mi­grant de­ten­tion be­came ex­tremely prob­lem­atic in re­cent days, just as the White House be­gan sig­nal­ing to ne­go­tia­tors that it would be more flex­i­ble on how much money Congress ap­pro­pri­ated for bar­ri­ers along the bor­der with Mex­ico.

White House of­fi­cials have be­come in­creas­ingly con­fi­dent that by declar­ing a na­tional emer­gency, Trump would be able to re­di­rect bil­lions of dol­lars in other fed­eral fund­ing to be used for a wall or bar­ri­ers. One sce­nario they had pre­pared for was Congress pass­ing a bill ap­pro­pri­at­ing some money for bor­der se­cu­rity, at which point the ad­min­is­tra­tion would use the na­tional emer­gency dec­la­ra­tion to loosen even more funds.

This could draw le­gal chal­lenges from Democrats, landown­ers and other groups, but White House of­fi­cials and some ex­ter­nal ad­vis­ers have called it the best way to pro­ceed. Trump long claimed Mex­ico would pay for the wall.

A to­tal break­down in talks poses a new set of chal­lenges, how­ever. It dra­mat­i­cally in­creases the odds of an­other par­tial gov­ern­ment shut­down be­gin­ning Satur­day. That would pre­vent roughly 800,000 fed­eral work­ers from be­ing paid in­def­i­nitely.

Dur­ing the last shut­down, the White House re­lied on hun­dreds of thou­sands of fed­eral em­ploy­ees — in­clud­ing Bor­der Pa­trol agents, Se­cret Ser­vice of­fi­cers, air­port screen­ers and air traf­fic con­trollers — to con­tinue work­ing un­paid for more than a month in or­der for key gov­ern­ment ser­vices to con­tinue.

How­ever, many of the fed­eral em­ploy­ees, in­clud­ing some air­port screen­ers and In­ter­nal Rev­enue Ser­vice of­fi­cers, re­fused to show up and called in sick. It is un­clear what they would do if there is an­other shut­down.

Al­though the odds of a gov­ern­ment shut­down have in­creased markedly in the past 24 hours, ne­go­tia­tors have time to work some­thing out, and dead­lines of­ten pro­duce re­newed ef­forts at com­pro­mise.

“There are bumps in the road, but as long as we stay fo­cused in a bi­par­ti­san way, bi­cam­eral way, to get this done, I’m hope­ful we can get it done. Is it a done deal? No, it isn’t, and we could end up in a train wreck. It’s hap­pened be­fore,” Sen. Jon Tester (D-Mont.), one of the ne­go­tia­tors, said on “Fox News Sun­day.” “But I don’t think any­body has an ap­petite for a gov­ern­ment shut­down, and I think ev­ery­body wants to make sure our bor­ders are se­cure.”

The im­passe came as a coali­tion of sher­iffs’ groups be­gan lob­by­ing law­mak­ers against lim­it­ing de­ten­tion beds, call­ing the pro­posed cap “ar­ti­fi­cial” and not­ing the vast ma­jor­ity of the cur­rent ICE de­tainees — 72 per­cent — are man­dated to be de­tained be­cause of con­vic­tions or for other rea­sons.

“Cap­ping the num­ber of de­ten­tion beds uti­lized by ICE not only jeop­ar­dizes the in­tegrity of the im­mi­gra­tion sys­tem, but would crip­ple ICE’s abil­ity to de­tain crim­i­nal aliens and other aliens who pose a risk to pub­lic safety or are a flight risk,” the Na­tional Sher­iffs’ As­so­ci­a­tion and the Ma­jor County Sher­iffs of Amer­ica said in their let­ter to con­gres­sional ap­pro­pri­a­tors.

Al­ready, ICE has reg­u­larly ex­ceeded the cur­rent quota set by Congress on im­mi­grant de­ten­tion, which is 40,520 beds — al­though that fig­ure is treated gen­er­ally as a floor, not a ceil­ing.

For in­stance, the num­ber of peo­ple de­tained as of Feb. 6 was 49,057, in­clud­ing 46,590 adults and 2,467 fam­i­lies, ac­cord­ing to sta­tis­tics re­leased by the of­fice of Sen. Jeff Merkley (D-Ore.), a top con­gres­sional critic of the ad­min­is­tra­tion’s im­mi­gra­tion poli­cies. On Jan. 30, it was 48,088 — up from 46,492 on Jan. 16.

As of Sun­day, a to­tal of 48,747 im­mi­grants were in ICE cus­tody, ac­cord­ing to an ICE of­fi­cial.

Ray Zac­caro, a spokesman for Merkley, said the fig­ures show the Home­land Se­cu­rity Depart­ment is “work­ing out­side of the frame­work ap­proved by Congress” and ac­cused the ad­min­is­tra­tion of “not com­ing to the ta­ble with clean hands” as law­mak­ers try to ham­mer out a deal to avert an­other gov­ern­ment shut­down.

“I think the talks are stalled right now. I’m not con­fi­dent we’re go­ing to get there.”

Sen. Richard C. Shelby, chair­man of the Se­nate Ap­pro­pri­a­tions Com­mit­tee

SALWAN GEORGES/THE WASH­ING­TON POST

House Speaker Nancy Pelosi (D-Calif.) is seen through the doors to the cham­ber be­fore last week’s State of the Union ad­dress. Im­mi­gra­tion is­sues con­tinue to di­vide Congress.

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