RACHEL MARTIN, HOST:
Immigration and Customs Enforcement or the agency known as ICE is reportedly holding more than 50,000 migrants. That is a record-high number. And now the administration is asking for more funding. Here's acting Homeland Security Secretary Kevin McAleenan on Capitol Hill this week.
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KEVIN MCALEENAN: Due to this border surge, we are exceeding ICE capacity for single adult beds. And we've requested more funding for it. Without that funding, we have an impossible choice. And we either lose control of our border entirely because we won't be able to enforce the law, even against single adults, or we're going to have to release people that were picked up in the interior with criminal records, which is also unacceptable.
MARTIN: Kevin Landy served as the director of ICE's Office of Detention Policy and Planning under the Obama administration. I asked him if he thinks McAleenan was right about that choice.
KEVIN LANDY: No, absolutely not. The acting secretary is referring to a surge. But that surge, which is extraordinary, is a surge of families who are coming across the border. The arrival of single adults, as he says, across the border is not unusual compared to prior surges that occurred during the Obama administration.
MARTIN: So the numbers of single adults crossing the border isn't increasing, but the government is detaining them more.
LANDY: That's correct. And not just detaining them more but over the entire course of the Trump administration, the detained population has exponentially grown because of Trump's draconian enforcement policies. Within the first week of coming to office, he started targeting, in the interior of the country, anybody not just people with criminal convictions. And he stopped releasing asylum-seekers. Those two policies led to a huge expansion in the detained population long before this surge. And now they're backpedaling because they already had a full detention system. And they're having a hard time dealing with what's going on this spring.
MARTIN: What is your argument then? If single adults who cross the border illegally - it is a crime. It is a misdemeanor. If they are not detained, what should happen to them?
LANDY: It's a question of the discretion of the administration as to how long they should be detained after they're held. People have the right to request asylum. If they're determined to have a credible fear of persecution, then they can be released. The question is, what should happen to them? The Obama administration reforms determined that, to a large extent, they should be released if they have a place to go, if they're not a threat to public safety. You had about 80 to 90% of those asylum-seekers being released. The Trump administration rolled that back. Very few of those people are now being released.
MARTIN: The Trump administration, though, is looking at this differently, as you just pointed out. They are not just trying to detain people with criminal records but also anyone who comes into the country. John Kelly, the former DHS head, used to say that if the idea of arresting people who cross illegally doesn't sit well, then Congress should change the laws and decriminalize it. Do you think that should happen?
LANDY: No, I don't and neither did the Obama administration think that. That's why people were detained after crossing the border but, hopefully, for short periods. People who were detained from Mexico and Central America who did not request asylum could be very quickly deported, and that maintained control over the border. If somebody is coming here fleeing persecution or extreme gang violence or other such threats, they have a right to be heard. And they should be released if they prove their case on a preliminary screening. Otherwise, they're in ICE custody for a year while they litigate their case.
MARTIN: Part of the argument about letting these migrants go, either with an ankle bracelet or just on, you know, their word, to await a date in immigration court is that they don't show up. Is that true?
LANDY: That's not true. The data shows that they do show up for their immigration court proceedings. The problem, to the extent that there is one, once they're released, is that it takes years to hear their cases. And it takes years to hear their cases because in the Bush administration, the number of immigration judges were slashed. And now that needs to be rectified. And we need more immigration judges so that people who've been released can have their cases heard expeditiously.
MARTIN: Why isn't it happening?
LANDY: Well, there has been additional funding recently appropriated for that. And they are trying to hire more immigration judges. It will take time, and the focus needs to be on bolstering immigration courts more and focusing resources on what's known as the non-detained docket; people who have been released from ICE custody.
MARTIN: Kevin Landy - he was a director at Immigrations (ph) and Customs Enforcement - ICE - during the Obama administration.
Thank you so much for your time.
LANDY: Thank you. Transcript provided by NPR, Copyright NPR.