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Once Relatively Obscure, ICE Becomes a Lightning Rod in Immigration Debate
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Once Relatively Obscure, ICE Becomes a Lightning Rod in Immigration Debate

August 22, 2018
Policy Beat
By Muzaffar Chishti and Jessica Bolter
Protest at an immigration detention facility

Demonstrators attend a protest near an immigration detention facility in Richmond, CA. (Photo: Peg Hunter)

Critics of the Trump administration’s immigration policies have seized on U.S. Immigration and Customs Enforcement (ICE) as the main target of their ire in recent months, with the “Abolish ICE” campaign catching fire seemingly overnight. Now a lightning rod for every perceived immigration-related outrage, the agency is being condemned for actions—such as the separation of families at the Southwest border—taken by other government agencies inside and outside the Department of Homeland Security (DHS).

While some of the sharpest liberal voices calling for ICE’s abolition have calmed, in part amid a recognition by leading Democratic strategists that the campaign could backfire, the agency has clearly been thrust into the center of a polarized national narrative in an unprecedented way. Attacked in some circles, the agency is being lionized elsewhere. Vice President Mike Pence recently told ICE agents they were “American heroes.” And eager to capitalize on a wedge issue important to its base, the White House on August 20 held a “Salute to the Heroes” of ICE and U.S. Customs and Border Protection, which like ICE is a DHS agency.

Some inside ICE who work on the agency’s substantial portfolio of nonimmigration enforcement missions, ranging from the targeting of transnational drug-trafficking networks to combating trade fraud and money laundering, fear the polarization will negatively affect their work.

Part of the heightened attention is the byproduct of revved-up immigration enforcement tactics ordered by an administration that has placed immigration at the center of its domestic policy agenda. And part is of ICE’s own creation. For example, Tom Homan, a career DHS official appointed to head ICE at the beginning of the Trump administration, led its transformation into the unabashed public face of immigration enforcement. Aligning himself with an administration that pledged to “take the shackles off ICE,” Homan famously told unauthorized immigrants: “You should look over your shoulder, and you need to be worried.” He also eagerly associated himself with administration efforts to crack down on “sanctuary” jurisdictions, calling on the Justice Department to criminally charge elected officials in locations that limit their cooperation with ICE.

The Creation of an Image: From Low-Profile Agency to #AbolishICE

With the creation of DHS in 2003, ICE was cobbled together from deportation and investigations officers with the former U.S. Immigration and Naturalization Service (INS) and investigations officers from the U.S. Customs Service at the Treasury Department. The deportation officers became ICE’s Enforcement and Removal Operations (ERO), and the investigations and Customs officers became the agency’s investigative component, Homeland Security Investigations (HSI).  

Though some of the 22 agencies that came together to form DHS have not fared as well under the new structure, ICE has seen its manpower and budget swell, fashioning it into an agency that is far more omnipresent than it once was.

ICE's Structure and Mission

ICE is the first-ever agency dedicated exclusively to immigration enforcement. Before its creation, INS encompassed both the enforcement side (border and interior, including detention and deportations) and service mission (adjudicating immigration applications) of the immigration system. When INS was dissolved, these functions were separated three-fold. Service officers became part of U.S. Citizenship and Immigration Services (USCIS) in the new DHS, Border Patrol agents headed to the new CBP, and ICE was charged with interior enforcement—detention, deportation, and criminal investigations. ICE thus became siloed from the experiences and perspectives that come from serving immigrants and prospective immigrants.

Further, other federal law enforcement officers—including the Customs officers who now formed HSI—looked down on former INS deportation officers as coming from an ineffective and inefficient agency. Differing pay schedules and enforcement cultures made for an uneasy fit. Based on a 2017 survey of federal employees, ICE came in 288th out of 339 government agencies when ranked by “best place” to work. DHS and ICE leaders have long searched for ways to boost employee morale, such as stressing the significance and value of every immigration arrest made, even when the arrestee is a noncriminal or a long-term U.S. resident.

The evolution of ICE’s mission—and the commensurate resources it has been given to execute its responsibilities—has also contributed to its polarizing image. In 2004, its stated mission was “to prevent acts of terrorism by targeting the people, money, and materials that support terrorist and criminal activities.” Today, the agency’s mission is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” As the mission has shifted, ICE’s resources—particularly those allotted for ERO—have grown. In fiscal 2004, the first year of appropriations after DHS was created, Congress provided $3.5 billion to ICE as a whole. By 2018, ERO alone received more than that: $4.1 billion for enforcement and removal, representing 58 percent of ICE’s total budget of $7.1 billion.

ICE Politics

As the immigration debate has grown more polarized over ICE’s lifespan, the agency has become politicized—particularly during the Obama and Trump administrations—in a way that other government agencies have avoided. In 2011, after ICE national leadership directed agents to narrow their enforcement focus, the union representing ICE officers released a statement blasting the Obama administration, saying “the administration protects foreign nationals illegally in the U.S. but does nothing for our employees.” In 2012, a group of ICE agents sued the Obama administration for prohibiting them from arresting and removing those covered under the Deferred Action for Childhood Arrivals (DACA) program, which protects from deportation some unauthorized immigrants brought to the country as minors.

In 2016 the ICE union endorsed then-candidate Donald Trump, after 95 percent of its members voted in favor of endorsement. During Trump’s presidency, ICE has repeatedly waded into political controversies. For example, in February 2018, then-Acting ICE Director Homan harshly criticized the Democratic mayor of Oakland for her warning to the community about an impending ICE raid. Mayor Libby Schaaf’s action was equivalent to “a gang lookout yelling 'police' when a police cruiser comes in the neighborhood,” Homan charged. And a review of the press releases ICE issues, which once used to be sober announcements of operations and arrests, now come with charged criticism of (mostly Democratic) sanctuary cities. For example, a July 2018 statement read: “Efforts by local NYC politicians have shielded removable criminal aliens from immigration enforcement and created another magnet for more illegal immigration, all at the expense of the safety and security of the very people it purports to protect.”

By entering the national conversation, deliberately or not, ICE has engendered strongly polarized public opinion. A Pew Research Center poll conducted in July found some 72 percent of respondents who were Democrats or Democrat-leaning had an unfavorable view of ICE, while the exact reverse was true for Republicans and those leaning Republican. Strikingly, just 8 percent of Democrats and 7 percent of Republicans said they “didn’t know” what they thought of ICE. In a poll conducted by Politico and Morning Consult the same month, 43 percent of Democrats said they believed the agency should be abolished, with just 34 percent wanting to keep it. Meanwhile, 79 percent of Republicans and 54 percent of independents wanted to retain ICE.

ICE Policies

ICE’s policies, which reflect its politics, have also contributed to its emergence as a target for Trump critics, even as the agency is getting plaudits in other circles. Executive orders the President signed in his first week in office directed the agency not to exempt any class of unauthorized immigrants from enforcement and revoked the prosecutorial discretion guidelines that were first created in 1976 and updated over time. Today, a much wider group of noncitizens is subject to arrest and removal, and ICE no longer gives much consideration to factors such as long-term U.S. residence or other equities such as having U.S.-citizen children.

In addition, while ICE honors long-standing policy of forgoing enforcement at “sensitive locations” such as churches, schools, and hospitals, it has been arresting people in close vicinity and has also increased operations inside courthouses, to the consternation of many judges. ICE also has targeted “sanctuary” cities for large-scale enforcement operations and increasingly arrested people at ICE check-ins, to which many removable immigrants had been routinely reporting without apprehension for years.

Of course, ICE’s mission will always be unpopular among some; the families and friends of those arrested and removed will unfailingly protest the outcomes of its actions, especially since almost 60 percent of today’s unauthorized immigrants have lived in the United States for a decade or more. However, as immigration enforcement has grown more indiscriminate, the agency has become more controversial. The growing polarization apparently motivated 19 HSI agents, in an extraordinary move, to write a letter to the Homeland Security Secretary in June asking for their office to be separated from ERO. “The perception of HSI's investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement,” they wrote.

Growing Resistance

In many ways, the resistance to ICE began in the Obama administration, as an information-sharing program known as Secure Communities hit its full stride and funneled ever more people into the deportation pipeline. Secure Communities, which in 2013 reached full rollout across the nation’s prisons, jails, and police stations, links DHS and FBI databases to share information about criminal and immigration violations committed by anyone fingerprinted. ICE uses the program to allow it to issue detainers requesting that local jurisdictions hold detainees it suspects are removable. Many jurisdictions stopped honoring these detainers in a bid to protect their noncitizen populations, including those arrested for minor offenses, from what they saw as excessive federal enforcement.

Before long a new “sanctuary” movement had emerged, in which localities and states stopped cooperating with ERO officers—and, in some cases, HSI officers as well. In total, about 30 state laws restricting such cooperation have been enacted since 2007, most in 2013 or later. About 300 local jurisdictions, including major cities such as New York, Chicago, Philadelphia, and Seattle, have also enacted policies limiting cooperation with ICE. These range from refusing to notify ICE when noncitizens are released from state or local detention, to denying ICE officers access to law enforcement databases that they might use to identify noncitizens who have been arrested. Such policies have pitted mostly Democratic-led cities and states against ICE.

A New Chapter in Resistance

While ICE’s mission and policies have clearly contributed to public perception of the agency, criticism has become sharper and more partisan. Since the 2016 election, the Democratic base and some who consider themselves farther to the left have vocally opposed the Trump administration’s immigration policies as cruel—making ICE an easy and obvious target not just for defunding or restructuring, but for total dissolution. In 2018, the #AbolishICE movement, which first gained mainstream traction following a March op-ed in The Nation by activist Sean McElwee, grew from a Twitter hashtag to a protest slogan and even made its way onto the platforms of major Democratic candidates.

Reports suggest that those who support abolishing ICE are not always clear about what exactly they are calling for, as much of their opposition focuses on the perceived inhumanity of CBP actions and Justice Department prosecution policies that led to family separations at the border—activities outside ICE’s jurisdiction. Nor have they articulated who would perform the nonimmigration functions of ICE, such as investigating terrorism, drug smuggling, child exploitation, human trafficking, cybercrimes, and financial crimes. It is also unclear which, if any, immigration enforcement functions they see as necessary—and who they think should perform those.

Carrying the #AbolishICE Banner

In spring and summer 2018, as family separations at the U.S.-Mexico border made international headlines, several progressive candidates won Democratic primaries after explicitly campaigning on abolishing ICE. Most prominently, Alexandria Ocasio-Cortez, a candidate for New York’s 14th congressional district, defeated House Democratic leadership member Joe Crowley—and promised that her “first priority” in Congress would be to abolish ICE.

Thus, the issue turned into a litmus test for many Democratic candidates. Possible presidential contenders took up the cry next: first, Senators Kirsten Gillibrand (NY) and Elizabeth Warren (MA), and eventually Bernie Sanders (VT), who initially refused to call for ICE’s dissolution. Gillibrand also seemed to conflate ICE’s responsibilities with those of CBP, saying, “When we flip the House and flip the Senate, I think the first thing we should do is deal with the children who are being separated from their families at the border. I think we should get rid of ICE.”

Others, including national party leaders such as Senate Democratic Leader Chuck Schumer and House Minority Leader Nancy Pelosi and potential 2020 presidential candidates Kamala Harris (CA) and Cory Booker (NJ), are trying to walk a tightrope by urging an overhaul of ICE without calling for its abolishment. With some Democrats mindful the stance could hand Republicans a tool to whip up the conservative base and label Democrats soft on crime, the momentum to #AbolishICE has lost some steam.

Some Democrats have also stood against #AbolishICE from the beginning. Leaked Congressional Hispanic Caucus talking points from late June acknowledged that ICE’s responsibilities stretch beyond civil immigration enforcement and argued that ICE itself is not the problem; rather, the real problem is a lack of oversight and accountability, as well as a broken immigration system. Recently, the Bay Area News Group asked the Democratic candidates in the ten most competitive U.S. House races in California if they supported dissolving ICE; none did.

With Democrats divided on #AbolishICE, it may become easier for Republicans to claim they are pushing for the most extreme option: open borders. “Leading members of the Democrat Party have even launched a campaign to abolish ICE—in other words, they want to abolish America's borders,” Trump said during the “Salute to the Heroes” event.

ICE in the Middle

Amid widespread condemnation of the family separations, the backlash against ICE has spread beyond politics. Employees and students have mounted campaigns asking companies and schools to cancel contracts with ICE. McKinsey, a leading global consulting company, ended its contracts with ICE after widespread employee (and public) outrage. Others, including Microsoft and Deloitte, have refused to drop their contracts with ICE, saying their work did not contribute to the separation of families. At the most extreme end, a Massachusetts man was arrested after posting on Twitter in July that he would pay $500 to anyone who kills an ICE agent.

GOP Pushback

Republicans have found ways to use #AbolishICE for their own purposes, perhaps most visibly with the White House salute. In July, House Republicans passed a resolution supporting ICE, in response to a bill by Rep. Mark Pocan (D-WI) to abolish it. Senate Majority Leader Mitch McConnell (R-KY) visited an ICE office in July and then issued a sharp statement: “According to these far-left groups, the ‘threat to democracy’ is not the violent criminals who are illegally present in our country—but rather the brave law enforcement officers who volunteer to take them on.”

As attitudes toward ICE become a barometer of positions on immigration as a whole, reaching workable policy solutions that could have meaningful impact becomes even more difficult—and campaigns such as #AbolishICE will not help bridge the divide.

National Policy Beat in Brief

July Southwest Border Apprehensions Show No Decrease from “Zero-Tolerance” Policies. U.S. Customs and Border Protection (CBP) summer apprehensions data indicate that policies to prosecute adults crossing the Southwest border illegally and separate them from their children did not significantly disrupt typical apprehensions patterns—and likely had little deterrent effect. In July, CBP took into custody almost 40,000 noncitizens either crossing illegally or turning themselves in at ports of entry—a 6 percent decrease from June. Of these, 31,000 crossed illegally, an 8 percent decrease. This matches the pattern seen consistently in the previous five years, except for 2017, showing a slight drop in apprehensions from June to July. Further, apprehensions of families decreased just 2 percent from June and have stayed essentially flat since April—before the “zero-tolerance” policy was announced—indicating minimal deterrence. In the absence of reliable data on illegal crossings, apprehensions are commonly used as a proxy for the number of illegal crossings.

New USCIS Guidance Makes Receiving Immigration Benefits and Asylum More Difficult. From late June to mid-July, U.S. Citizenship and Immigration Services (USCIS) issued new guidance to its officers on several policies, all of which have the effect of closing off avenues for immigrants to attain some immigration benefits or relief. On June 28, USCIS instructed immigration officers to automatically issue a Notice to Appear (NTA) when the denial of an immigration benefit—such as a renewal of a temporary visa, a green-card application, or a request for Temporary Protected Status (TPS)—results in the applicant’s unlawful presence in the United States. Anyone issued an NTA is entered into removal proceedings. Further, a July 13 guidance document allows USCIS adjudicators to deny insufficient or incomplete immigration applications without first issuing a Request for Evidence (RFE), whereas longstanding practice had been to generally issue an RFE prior to a denial. These two policy changes will cause more noncitizens to be put into removal proceedings.

In addition, USCIS issued guidance July 11 raising the standards for asylum seekers to meet the credible-fear determination that allows them to pursue asylum in immigration court. The guidance states that claims of domestic or gang violence in the country of origin will generally not be sufficient. This will drastically cut the number of Central Americans able to make their case in front of a judge. Further, it requires that applicants show their origin country government either condones or is completely helpless to stop the persecution they fear upon return—not just that policing is imperfect in their country. In June, USCIS found that asylum seekers had a credible fear of persecution in 74 percent of cases. This guidance will likely drive that number down.

ACLU Sues Government over New Credible-Fear Standards. The American Civil Liberties Union (ACLU) filed a federal lawsuit in the District of Columbia on August 7 challenging the legality and constitutionality of the stricter credible-fear standards and charging that clients with genuine claims to asylum were being summarily rejected and ordered removed. The standards, described above, stem from a legal opinion written by Attorney General Jeff Sessions after referring to himself a case decided by the Board of Immigration Appeals in 2016 (Matter of A-B-). Sessions reversed the decision that married women in Guatemala unable to leave their relationships could apply for asylum on that basis, and in doing so, limited the circumstances in which people fleeing any type of private crime, particularly domestic and gang violence, could qualify for asylum.

The judge in the case brought by the ACLU, Grace v. Sessions, blocked the removal of the eight plaintiffs until legal proceedings have concluded. He has not yet ruled on the merits of the case.

Federal Judge to Rule on Lawfulness of DACA, Setting Up Potential Judicial Conflicts. U.S. District Judge Andrew Hanen of the Southern District of Texas heard arguments August 8 on whether he should issue a preliminary injunction on the Deferred Action for Childhood Arrivals (DACA) program, which the Obama administration launched in 2012 to offer work authorization and relief from deportation to some unauthorized immigrants brought to the country as minors. A group of six states, led by Texas, brought a lawsuit in May arguing that DACA was an unlawful use of executive action. If Hanen, who in 2015 found unlawful the Deferred Action for Parents of Americans (DAPA) program and a DACA expansion, orders the government to stop accepting DACA applications, he will set up a conflict with other federal district judges who have prevented the government from ending DACA.

Dueling nationwide injunctions will likely result in immediate appeals, and the matter could end up at the Supreme Court. The high court could then uphold any of the injunctions, make one supersede the others, or rule that the injunctions apply only in the judicial circuits where they were issued. 

U.S. Army Will Temporarily Stop Involuntarily Discharging Noncitizen Troops. A July 20 Army memo obtained by the Associated Press orders officials to temporarily stop discharging noncitizen recruits who joined the Army through the Military Accessions Vital to the National Interests (MAVNI) program. Since then, the Army has canceled the discharges for 38 of the 149 MAVNI recruits whose discharges were paused for review. The memo follows a lawsuit from a discharged recruit and a series of press reports highlighting the discharges. MAVNI was created in 2009 as a way for foreign-born individuals—refugees, asylees, TPS holders, DACA beneficiaries, and certain nonimmigrants—to contribute language and medical expertise to the military in exchange for a fast track to citizenship (currently after 180 days of service). Some recruits have overstayed their visas as a result of increasing background check backlogs and are vulnerable to deportation if their military contracts end.

In early July, the Associated Press reported that dozens of MAVNI recruits had been discharged. It is unclear exactly why—some were not given a reason, while others were told the Department of Defense was not able to conduct background checks on them, or that they had been deemed security risks because of family abroad. MAVNI recruits must start basic training within three years of signing their contract, and background checks are required to start training, but some who were discharged had not reached this deadline. The Army is now reviewing its discharge procedures.

New Lawsuit Challenges Effectiveness of Waiver System Built into Travel Ban. Thirty-six plaintiffs from the five Muslim-majority countries targeted under the Trump administration’s travel ban filed a lawsuit (Emami v. Nielsen) in federal court in the Northern District of California on July 29, arguing that the government has not established an effective waiver process and has denied or stalled almost all waiver grants and any visa issuances that could stem from those grants. The presidential proclamation establishing the third iteration of the travel ban, the one currently in effect, specified that people who would otherwise be denied visas could obtain waivers if a denial would cause them undue hardship, they would not threaten U.S. national security or public safety, and their entry would be in the national interest. For example, someone who needs to do business or who wants to visit or live with family in the United States may be eligible for a waiver.

When the Supreme Court upheld the travel ban in Trump v. Hawaii in June, the majority opinion cited the waiver program as showing that the travel ban was not discriminatory and was based on a legitimate national security interest. Justice Stephen Breyer, in his dissent, argued that there is evidence that the State Department is not granting waivers as specified in the proclamation. State Department statistics show that of the 27,129 visa applicants who filed their applications between December 8, 2017 and April 30, 2018, just 2 percent—579—were “cleared for waivers,” and it is unclear how many were subsequently issued visas.

DHS Extends Temporary Protections for Yemenis and Somalis. Homeland Security Secretary Kirstjen Nielsen announced the extension of TPS for Yemenis and Somalis in the United States since March 2017 and September 2012, respectively. The extensions allow around 1,000 Yemenis and several hundred Somalis to remain, protected from deportation and able to work lawfully, for 18 more months. DHS can designate a country’s nationals already in the United States for TPS if their country of origin is experiencing environmental disaster, armed conflict, or other extraordinary and temporary conditions that prevent its nationals from safely returning. Since President Trump took office, DHS has terminated protections for 98 percent of the 318,000 TPS holders.

State and Local Policy Beat in Brief

State Attorneys General File Lawsuit to Protect Funding for Sanctuary Cities. On July 18, attorneys general from six states, led by New York, filed a lawsuit challenging new conditions requiring states and localities to cooperate with federal immigration authorities in order to receive certain Justice Department grants. Grant recipients would be required to share individuals’ citizenship and immigration status information with the federal government, allow federal immigration officials access to jails and prisons to interview detainees, and alert ICE of the release dates of suspected removable noncitizens. The grants at issue provide funding for local law enforcement initiatives. The states argue that the Justice Department did not have the authority to unilaterally impose these conditions, and that doing so violates the separation of powers and the Tenth Amendment.

A panel of federal judges in the Seventh U.S. Circuit Court of Appeals had previously barred the application of these conditions nationwide, but the full court limited the injunction to the City of Chicago, the plaintiff. California’s attorney general filed a similar lawsuit in August 2017; a ruling in that case is pending.

Philadelphia Terminates ICE Access to Law Enforcement Database. Philadelphia Mayor Jim Kenney announced July 27 that the city would not renew an agreement that allows ICE to access data in the city’s Preliminary Arraignment Reporting System (PARS) when the agreement expires August 31. PARS does not include immigration status, but provides personal information (such as place of birth) and court dates for people who have been arrested in the city, in real time. The mayor’s office said it learned that ICE uses the database to arrest people—who have not been charged or convicted of a crime—on civil immigration charges and could not show that its use of PARS does not result in profiling. Protesters had for weeks called for Philadelphia, a so-called sanctuary city, to end this contract with ICE.

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