ICE union press release seems divorced from reality

Sunday, August 8th, 2010
By: Jonathan MontagJ.D.


Remember when the Department of Homeland Security was created in 2002 there was all kinds of concerns because employees of DHS would not be allowed to join unions? Well, this apparently was not so because ICE has a union, National Council 118 of the American Federation of Government Employees. On June 15, 2010, it made a name for itself by publishing a press release voicing a”Vote of No Confidence” in ICE leadership.

I was a little surprised that such a manifesto would be released. I fancy ICE as a military-type organization. Lots of people with uniforms. Officers who go on missions with live weapons.  I wouldn’t expect such a brazen announcement critical of leadership from such a group.  Think of poor General McChrystal. I guess they are lucky who their chief executive is. Imagine what would happen if Dick Cheney were still in charge.

While a little surprised at the willingness to issue the press release, I was extremely surprised at the content. While anything is possible and any weird thing you imagine probably happened somewhere sometime, the tales of woe in the press release are not anything I have ever seen or experienced in my 16 years of practice. To wit:

Director John Morton and Assistant Director Phyllis Coven have abandoned the Agency’s core mission of enforcing United States Immigration Laws and providing for public safety

The numbers of aliens being arrested and deported are the highest ever. Article after article in newspapers around the country discuss neighborhoods terrorized by ICE agents arresting people off the street. ICE job site enforcement is at record levels. The Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO), charged with deciding employer sanctions cases are busy again after doing essentially no work for the last ten years. The immigration courts are backlogged like never before because ICE and its sister agencies are placing so many aliens in detention. If the core mission is deporting people that do not have permission to be in the U.S., then ICE is busier than ever.

Director John Morton and Assistant Director Phyllis Coven have instead directed their attention to campaigning for programs and policies related to amnesty

I have read memos from John Morton discussing his priorities in immigration law enforcement. A recent memo discusses ICE’s priorities which are deporting those that pose a risk to national security or public safety, recent illegal immigrants, and fugitives. I have not read any about ICE advocating amnesty.

Director John Morton and Assistant Director Phyllis Coven are creating a special detention system for foreign nationals that exceeds the care and services provided to most United States citizens similarly incarcerated.

ICE maintains what may be the largest detention system in the country. Any given day 30,000 aliens are detained. In 2009 ICE detained more than 380,000 people. None is in ICE detention as punishment for a crime. All are there because of “civil” immigration proceedings. There is no detention system for U.S. citizens “similarly situated” because no U.S. citizen belongs in ICE detention because U.S. citizens cannot be deported. Since the days of Mr. Macawber’s debtors prisons, detaining people for civil violations is rare. All I can think of is when a reporter gets thrown in jail for refusing to reveal a source and when someone’s cell phone goes off in court. So, the idea that citizens are similarly situated is ridiculous. The statistics show that those of those in detention facing removal as a consequences of crimes, few are detained for serious crimes. Most are being held because of minor drug crimes or detained after traffic offenses. ALL have been released from penal custody and then are taken by ICE, meaning that unlike U.S. citizens, they are being held in jail after the state or federal criminal system has decided they are free to leave jail. Many detained are seeking asylum and have not broken any law at all – not even overstaying a visa.

Understanding that the detainees are not being punished for a crime, but are waiting for their cases to be adjudicated – I recently represented a person who was detained for 11 1/2 months just to get to have an immigration judge decide the case. Not one second of the delay was because this person asked for more time. The system was not designed to hold people that long and there are no programs in the ICE detention centers to make such lengthy detention bearable. Former detainees have told me they preferred state or federal prison to ICE detention because of the terrible conditions and lack of diversions. And in California, preferring state prison is saying a lot. And never mind the people that get lost in the system or die of neglect or abuse in the system or just suffer sexual assaults or other abuse.

Criminal aliens incarcerated in local jails seek out ICE officers and volunteer for deportation to avoid prosecution, conviction and serving prison sentences. Criminal aliens openly brag to ICE officers that they are taking advantage of the broken immigration system and will be back in the United States within days to commit crimes, while United States citizens arrested for the same offenses serve prison sentences. State and local law enforcement, prosecutors and jails are equally overwhelmed by the criminal alien problem and lack the resources to prosecute and house these prisoners, resulting in the release of criminal aliens back into local communities before making contact with ICE. Thousands of other criminal aliens are released to ICE without being tried for their criminal charges.

This assertion is one in the category of something that may have happened somewhere, but if it did, it must have been a very exceptional situation – like the puppy that called 911. I have never, ever, ever encountered a case where a prosecutor declined to prosecute a crime because the alien was going to be deported. I have encountered hundreds and hundreds of cases where aliens are picked up by ICE after they finish their time in jail or prison. I have seen scores of times that non-citizens are kept in harsher levels of detention because they are non-citizens and thus are considered greater flight risks o are denied work furlough or half-way house options because of flight risk concerns. So, my experience is that non-citizens are punished more severely than U.S. citizens. USCIS will attest that at any given time it has many cases pending where people in criminal detention file applications (from N-600) to assert that they are U.S. citizens because being a citizen makes their punishments less harsh.

Further, I find it quite amazing that an alien would say to an officer, “Ha, ha. I will be back in days to commit crimes.” Perhaps one would say, “I have been a permanent resident for 20 years and have lived in the United States for forty years. You are deporting me for a mistake I made 15 years ago. I cannot just leave my spouse and children in the United States and not come back and support them. Coming back is what I have to do.”

The majority of ICE ERO [Enforcement and Removal] Officers are prohibited from making street arrests or enforcing United States immigration laws outside of the institutional (jail) setting. This has effectively created “amnesty through policy” for anyone illegally in the United States who has not been arrested by another agency for a criminal violation.

ICE apparently wants its officers to be allowed to roam the streets and arrest people. This is now done on busses, trolleys, at stores, and on the roads in violation of the law. ICE wants to approach people and ask for their papers. Maybe one day we will all accept this – stopping people based on weak suspicions of being “illegal” and then arresting them. So far, the Constitution prohibits it. Still, I meet people all the time who are stopped by immigration officers for not looking at them, looking nervous around them, or not looking nervous-enough arounf them. I meet people arrested because they reported an abandoned car to the police or because their bicycle did not have a light. I have heard from many people who are arrested by ICE and then encouraged (to put it mildly) to just be removed without seeking a judge where they can assert their rights – the right to be free from an illegal arrest and the right to seek relief from removal in immigration court. ICE wants to be able to stop anyone for any reason anywhere and just kick them out. How such random acts increase, rather than decrease, public safety is beyond me. I would rather that law enforcement officials carefully identify and arrest the real bad guys than wander around bus stops looking for people with foreign shoes.

A lot of the press release is about ICE wanting more money. ICE wants more money. So does USCIS. So does CBP. So do the unemployed. So do disabled veterans. So does the Mine Safety and Health Administration. So do the police, the road repairers, firemen, the military, schools and teachers, nurses, food pantries, and orphanages. I want more money too. Maybe I’ll issue my own press release.  Posted August 8, 2010.



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