Internal memo raises concerns about DHS funds transfer

The Immigration and Customs Enforcement bureau may have violated federal funding regulations when it transferred employees and funds to U.S. Customs and Border Protection, its sister agency in the Homeland Security Department, for a detainee transportation program, according to an internal ICE document obtained by Government Executive.

A February 2006 memorandum from ICE field managers to Julie Myers, the head of the bureau, and John Torres, then-acting director of ICE's Office of Detention and Removal Operations, expressed concern that the agency broke the law in its haste to provide CBP's Border Patrol with the transportation services. An ICE official testified last month that the bureau shifted $50 million worth of resources, including employees, to CBP in fiscal 2006 for the services.

"Legally, there is a concern… that ICE [employees who] provide transportation services to CBP without reimbursement for such services is an improper augmentation of CBP's appropriations," the Feb. 2 memorandum stated. "Nonreimbursable details constitute an improper augmentation of the receiving agency's appropriations and conflict with the principles of federal appropriations law."

The ICE document said "agencies must have control over resources necessary to accomplish their core mission. Transportation services must be provided by individual agencies until [arrested illegal immigrants] reach" ICE detention facilities. Taking back the more than 200 employees providing the transportation services to CBP would enable ICE, it said, to "fully comply with federal appropriations law." Sources said ICE has started recalling agents.

The ICE document cited a federal law stating: "Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law."

A staffer for the House Appropriations Committee, provided with the documents Government Executive obtained, said "a reasonable reading" of the February memo would lead to the conclusion that ICE's fund switch violated the Anti-Deficiency Act.

In testimony on Nov. 27, 2006, as part of an arbitration case in which ICE was involved, an ICE official stated that the agency transferred the $50 million to CBP's Border Patrol for detainee transports, but said he did not know doing so violated federal appropriations law.

The $50 million "was always intended for the purposes of a [detainee] transportation contract," said Gary Mead, ICE DRO assistant director, in the testimony. "It just ended up in our appropriation."

ICE spokesman Marc Raimondi said in regard to Mead's testimony that "there was no violation of law." He noted that ICE and CBP share similar responsibilities, and there was "no need for a notification" to Congress regarding the funding transfer. He refused to comment on the document authored in February in which ICE field managers expressed concern over a potential appropriations violation, stating that because "it was never signed" it was merely a draft document and that it was both "worthless" and "wrong."

Raimondi would not say whether a finalized version of the document was ever written; the document obtained by Government Executive does not indicate whether it is a draft or final version.

"What they're doing is illegal; it's very illegal," said a management source with ICE, who said she had access to data and documents surrounding the funding matter. She said ICE was not reimbursed for the workers CBP used.

The House Appropriations Committee source said the funding switch could result in sanctions against ICE or the Homeland Security Department. The source said there's a possibility CBP might end up having to reimburse ICE for the resources used.

Recently, CBP has scrambled to return to ICE the agents it has for months used for the work. CBP, according to personnel status updates provided to Government Executive, returned nearly 150 of the more than 200 agents. Additional documentation stated ICE will get back all of its agents by Oct. 1, 2007.

CBP engaged security contractor Wackenhut in a deal to transport detainees as it began returning agents to ICE, but a CBP source said the bureau remains burdened by the loss of ICE workers.

A CBP manager working at the U.S.-Mexico border, who spoke under the condition of anonymity, said thousands of detainees are handled daily by CBP and the removal of ICE agents "puts a serious hurt on our operations." The source said managers were only recently made aware of the staff reductions and the reason for the move was not discussed.

"It's going to affect overtime and it's going to affect operations," the CBP manager said.