A Real Immigration Agenda

Despite what moderates may claim, the move from demanding the abolition of ICE to enacting it in policy is not insurmountable. Nor does the work of making it happen have to wait until Democrats take back power.

The Republicans have never waited to make their demands known. Even when there was no chance of passing a bill, Republicans responded to every recent flash point with legislation that helps achieve their overarching goal to restrict immigration.

When Trump first sensationalized the death of a young woman killed by an immigrant in San Francisco in 2015, Republicans responded with a wave of state and federal “anti-sanctuary” bills. Similarly, after the shootings in Paris a few months later, Republicans in both Congress and in state governments moved to halt refugee resettlement.

Although most of these efforts failed, they still sent a message. Now having captured the presidency, they are taking those same ideas and turning them into policy.

The Democrats, by contrast, have no similar overarching immigration agenda.

Short on fundamentals, Democrats have repeatedly attempted to bring Republicans into negotiations over “comprehensive immigration reform,” based loosely on trading a legalization program for restrictions. A compromise bill has become the default Democratic goal rather than a tactic to achieve a list of demands. If the Democrats take back power in the near future, what policies they would propose remains unknown.

Enter abolish ICE.

Why Abolition?

Abolishing the agency reflects a broader goal of a far more humane immigration system, one in which immigrants aren’t thought of as a population to be policed and controlled by armed agents. Without ICE, children don’t suffer the trauma of their parents being taken away from them in the middle of the night. Without ICE, workers are freer to fight against wage theft and for a union because they don’t have to fear raids and deportation. Without ICE, asylum-seekers can find an attorney to help them stay in the country instead of navigating the system alone from the inside of a detention center.

Democrats should support abolishing ICE simply for its raw politics: it materially improves the lives of immigrants, who are by and large a Democratic constituency. If Republicans can rob the welfare state and future generations for a $1.3 trillion giveaway to their super-rich donors, then Democrats should be willing to deliver for the people who could soon become Democratic voters. And while there are conservative voters who are mobilized by immigration restriction, mobilizing them to defend a government agency isn’t the same, particularly when the agency so frequently disgraces itself in the press.

Since there will be no opportunity for Democrats to achieve a veto-proof majority before 2020, abolishing ICE will inevitably be a multi-year project. So, what can activists do now to erode ICE before we have a Congress that can abolish it for good?

While they are still the minority, Democrats in Congress can demand concessions in appropriations bills that chip away at the agency. Fortunately, ICE recently announced the cancellation of a proposed contract to hire thousands of new agents. But why stop there when we could demand further shrinking the size of the agency?

Whole programs like 287(g), which deputizes local law enforcement officers as ICE agents, are obvious contenders for the chopping block. ICE’s ability to hire contractors like Vigilant Solutions, which gives ICE vast access to databases and surveillance technology, should also be stripped away.

ICE spends more than $2 billion annually on detention contracts with private prison corporations. That too, can be cut, but may also require eliminating the much-reviled “bed mandate,” which requires ICE to maintain 34,000 detention beds on any given day. By shrinking the budget for detention, we can move progressively toward a world without it.

A Line in the Sand

Even if attempts to shrink the agency don’t succeed in the short term, it is worth drawing a line and demanding that congressional Democrats say which side they are on. As more Democrats come to our side, abolishing ICE will inch toward becoming a reality.

Some of the greatest gains toward abolishing ICE can be accomplished at the local level. While many cities have proclaimed themselves to be “sanctuaries” and refuse to hold people for ICE, there are still plenty of ways to strengthen these policies that reduce the overall number of deportations.

Activists in Charlotte, North Carolina, delivered a critical blow to immigration enforcement in the state by electing a sheriff in a landslide who promised to end Mecklenburg County’s 287(g) program. Their victory was made even more incredible when you consider the county’s history with the program. Former sheriff Jim Pendergraph brought the 287(g) program to Mecklenburg County in 2006, and became  such an enthusiastic supporter that he took a job with Homeland Security to promote the program nationwide. Charlotte’s efforts should be replicated in every city with a 287(g) program.

Criminal justice reform efforts at the local level help reduce deportations. The fewer people who are in jail, the fewer people ICE is able to pick up. When anyone is booked in a local jail, their name, fingerprints, and other data is shared with federal agencies, including ICE. If people are given a citation or taken to a treatment program rather than jailed, less of that information is shared with the federal government, or even collected in the first place.

Local law enforcement agencies are required to notify foreign governments of fifty-seven countries when they arrest their citizens. As a result, local police ask a person’s nation of origin when they are booked in jail. That information is then shared with ICE. Local police should adjust their booking practices to avoid unnecessarily collecting national origin information, depriving ICE of information on potential targets.

States can do more to shut ICE out of important databases that they use to find targets for deportation. For example, ICE frequently uses Department of Motor Vehicle information to find out where people live, or even work with DMVs to set up fake appointments in order to apprehend them. Similarly, local probation and parole offices often voluntarily assist ICE by setting up check-ins and sharing information.

According to a report from the University of California, Irvine, the Orange County Probation Department regularly referred juveniles in its care to ICE. While federal law prohibits local governments from refusing to share immigration status information, states are well within their power to restrict access to everything else.

Activists can demand that local governments shred their intergovernmental services agreements, or IGSAs, in which local jails rent bed space to ICE. Jails with IGSAs are compensated at a fixed rate for allowing ICE to detain immigrants there, often before they are moved to a longer-term detention center. Aside from propping up the federal detention system, IGSAs create perverse incentives for local communities by investing them in deportation and mass incarceration.

Jerome County, Idaho built a new jail larger than necessary specifically in order to lease it to ICE and other agencies. Eloy, Arizona, receives $438,000 per year from a detention contract in Dilley, Texas, between ICE and CoreCivic, a private prison corporation, simply by acting as a middle-man, using its IGSA. In Texas, ICE has used IGSA revenue to entice sheriffs into joining the 287(g) program. If we make detention more difficult locally, we place pressure on Congress to limit its use, or abolish it entirely.

There is a countervailing concern with IGSAs that activists should consider: in some areas, the alternative to detaining immigrants locally — often closer to their attorneys and families—is to be in a detention center hundreds of miles away. Since shutting down an IGSA can have adverse effects for the people detained there who have a legal pathway to remaining in the country, activists should be careful to pursue these campaigns in consultation with immigrant community members and organizations.

Beyond ICE

Even if we achieved the goal of abolishing ICE, there would still be more to do to dismantle our unjust immigration system.

One of the primary arguments for abolishing ICE is that the agency abuses its power. The same can be easily said — and more — about the Border Patrol and its parent agency, Customs and Border Protection.

The Border Patrol has long acted with impunity, often violently, and revels in a repugnant culture that rewards their incivility. On the Green Line podcast sponsored by Breitbart News, union officials galvanize rank-and-file agents to resist even modest accountability reforms.

Unlike ICE, the Border Patrol act more like a common police force, without even the sparse accountability measures that local law enforcement agencies are required to use. Indeed, abuses by CBP and Border Patrol are not unique to the Trump administration. A recent investigation by the ACLU and the University of Chicago Law School uncovered records from 2009 to 2014 of CBP officers verbally, physically, and sexually abusing migrant children. However, but they have grown increasingly bold and willing to extend their power further into the interior. They are boarding buses and airplanes far from the southern border to demand IDs. They detained a US citizen in Montana for speaking Spanish. And of course, CBP is responsible, alongside the Department of Justice, for separating families at the border.

Does abolishing ICE also mean abolishing the Border Patrol? If abuse of power is the justification for abolishing ICE, then the answer might be yes. At the very least, the Border Patrol should be subject to the same accountability measures, and more, that activists have demanded for local police.

As a greater percentage of people crossing the southern border come from Central America, the ways in which the government attempts to thwart asylum-seekers deserves greater attention. Attorney General Jeff Sessions has wasted little time using his power as the overseer of the administrative immigration court system to severely restrict immigration.

By referring several cases from the Board of Immigration Appeals to himself, he has limited the power of immigration judges to grant relief to people who previously had a right to stay in the country. In Matter of Castro-Tum, Sessions prevented immigration judges from administratively closing cases, which effectively ended their deportation proceedings. Sessions’s Castro-Tum decision overturned a previous case, Matter of Avetisyan, in which a judge closed a case over the objections of ICE because the deportation proceedings were preventing a woman from completing her application for legal permanent residence.

Because of Sessions’s Castro-Tum decision, people who have legal claims will be deported simply because ICE doesn’t want to wait.

In another recent case, Matter of A-B-, Sessions prevented asylum seekers whose claims were based on attacks from gangs and domestic violence. Since the 2014 Board of Immigration Appeals decision in Matter of A-R-C-G-, immigration courts have recognized that married women who are unable to leave their relationship are a “particular social group” eligible for asylum. The woman in Matter of A-B- suffered fifteen years of rape and death threats from her husband in El Salvador, a country with one of the highest levels of femicide in the world. Similarly, Sessions overturned another precedential decision, Matter of E-F-H-L, guaranteeing asylum seekers the right to a full hearing.

As an administrative court, due-process rights in immigration court are already severely restricted. There is no right to appointed counsel, even for children. In 2015, three out of ten unaccompanied children in immigration court were not represented by an attorney; in 2017, the share grew to three out of four. When asked if immigrants should have due-process rights, a deputy solicitor general said blithely, “Whatever process Congress chooses to give is their due process.”

Unless the immigration court system is taken out of the hands of the Department of Justice, right-wing demagogues will be able to weaponize it against immigrants. An independent system would do far better at upholding constitutional rights. Congress should follow the recommendation of groups like the American Immigration Lawyers Association by creating an Article I immigration court system that is independent of the executive branch.

Activists don’t have to have all the answers before articulating a vision of how we want the world to be. It is also true, however, that we don’t have to start from scratch. In fact, some of the strategies we need to achieve our goals are already working.

We know the abuses ICE has carried out; we also know how to dismantle it. So, let’s get to it.