Yes, ICE is full of it.

Sunday, July 8th, 2018
By: Jonathan MontagJ.D.

A minor debate is underway as to whether or not ICE needs to be disbanded, reformed, or conversely, praised as the defender of America against the barbarian hordes.

I once visited a friend in the hospital. In the hallway there was a ruckus as a patient, his face bandaged, was roaming exclaiming, “They cut off my nose. I can’t believe they cut off my nose.” The hospital being in San Diego and not Riyadh, my assumption was that the man had a diseased nose that needed to be cut off. I thought about the doctor whose job it was to cut off a man’s nose and thought, “I guess someone has to do that job. I’m glad it’s not me.”

So too with ICE. In 1996, President Bill Clinton signed two laws that substantially changed the Immigration and Nationality Act, the Antiterrorism and Effective Death Penalty Act of 1996, followed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. They took a harsh body of law and made it harsher. With the transformation of government in 2003, creating the Department of Homeland Security, the bureau of Immigration and Customs Enforcement, assumed responsibility, along with two other bureaus, Citizenship and Immigration Services and Customs and Border Protection, in enforcing these laws. With USCIS responsible for granting immigration benefits and CBP responsible for the borders and airports, internal law enforcement became ICE’s job. I guess someone has to do that job. I’m glad it’s not me.

If simply enforcing a horrible body of laws was what ICE did, criticism of ICE would really be criticism of horrible laws (Thanks, Bill). However, what makes ICE horrible is how they do it.

Let’s start with their detention function, detaining people while in proceedings to consider their deportation and those awaiting deportation. The first step in representing such a person is finding the person in the archipelago of detention facilities ICE runs or contracts to run around the country, housing upwards of 35,000 people daily, and expanding.

Recently I tried to locate a detainee. Using the ICE Locator, I entered the individual’s name and country of birth and got the response that the person was detained at the Otay Detention Facility, 446 Alta Road, Suite 5400, San Diego, CA 92143, Tel. 619) 661-9119. The Otay Detention Facility at Alta Road stopped being an immigration detention facility a while ago, having contracted to build a larger facility nearby, so obviously this information was wrong. The phone number was out of service.

Next step, look online for the Otay Detention Facility. ICE has a website for the new one, dubbed the Otay Mesa Detention Center with its address and its phone number. When you call the phone number, an answering machine informs you that you will be called back. I called and called and called. The Messiah will come (or return) sooner than I’ll get a call back.

After a day and a half, I went searching again. The owner and operator of the facility, CoreCivic, has a website and a phone number for the new Otay Mesa facility. I called that number and asked about the detainee I was hunting for. I was given the telephone number to an ICE officer. I called that number and left a message. In 23 years of doing this type of work, getting a call back from an ICE officer (or prior to that, an INS deportation officer), has been a crap shoot. There are some officers who have never returned a call to me in 23 years. I recognized the voice of the officer on the answering machine message and knew this officer returned calls. Sure enough, the officer did return the call and confirmed that the detainee was indeed at the Otay Mesa Detention Center, which ICE calls the Otay Detention Facility (ODF), just to keep the exact name as confusing as possible.

The officer knew the ICE locator was wrong and the ICE website was wrong. ICE headquarters knows too, but does not apparently give a nit. How many people relying on their websites give up and figure their relative or friend is simply lost in the gulag archipelago?

Here’s another example how ICE is full of it. Since President Trump took office, ICE has not been releasing detainees it had released previously. When a noncitizen is detained at the border and after passing a credible fear interview, an ICE officer would provide a letter explaining how to apply for release from detention and listing what papers to provide. The form gives great encouragement to detainees and their families to apply for relief, despite the reality that ICE is not releasing arriving-alien asylum seekers. The letter provided all kinds of ridiculous requirements, like support forms that have no force of law, and weird clerical requirements like putting the detainee’s name and Alien Number at the top of every piece of paper. Rejection was the fate of the slightest variation from the instructions. The instructions also required sending the packet by delivery service (Fedex, United Parcel Service, etc.) and not the mail. Curious as to why the post office would not suffice, I was told that ICE does not check its mailbox. Through ICE’s liaison meetings with immigration lawyers, I sent this inquiry:

What are the methods for sending a parole request to ICE at the CCA? A member contacted the (619) 710-8301 number and was told that using the PO Box 439020, San Diego, CA 92143, was an acceptable method to send a parole request. The member sent the request priority mail to this PO Box and ten days later, the ICE officer still did not receive it. The attorney contacted the officer who explained that sending anything through the PO Box explains why it has not been received. The way to deliver must be through UPS or FedEx to the street address, 446 Alta Road, Building 5400, San Diego, CA 92158. Is it really true that the PO box is not effective and mail is not checked for a week or more at a time? If requests need to be sent only by UPS or FedEx, could ICE put that information on the Parole Advisal and Scheduling Notification? Can parole requests be hand-delivered to the CCA or to ICE in downtown San Diego? Can ICE requests be scanned and delivered by email?

This was the response: For mailing correspondence to ODF, you can use any of the express companies (e.g., Fed Express, UPS, DHL) to ODF, 446 Alta Road, Suite 5400, San Diego, CA 92158. This way you can easily track delivery information by on-line or calling each express company. Another way is via our P.O. Box at the U.S. Post Office: ODF, P.O. Box 439020, San Diego, CA 92143-9020; mail is picked up daily by one of our LEO [whatever that is] staff members. If you are close to the San Diego Federal Building, you can feel free to walk over to the 2nd Floor, Non-Detain Office, Suite 2242, and leave your mail to the attention of ODF. This staff member will place your mail in the ODF Box for the Mail Run which is picked-up daily by our LEO personnel and then hand-delivered to ODF. All mail upon arrival at ODF, if unless noted on the envelope, will be given to Mission Support Specialist for distribution to staff. Using the automated method of e-mail or scanning is very much acceptable. ODF Detained Unit developed an Outlook Mailbox for attorney G-28 forms, or any other requests sent to [email protected] If you have the name of the officer, please add this to the body of your e-mail. This is reviewed by the Deportation Officers and Enforcement Removal Assistants on a daily basis as well.

Well, guess what? After this response, I mailed a packet to the PO Box by priority mail and it was not picked up. I called the officer and he explained that parole requests had to be sent via Fedex or UPS because they pick up the mail infrequently. Did the officer know that his bosses said we could use the U.S. mail and that it is checked daily? Do the bosses care that no one listens to them? Do they even know no one listens to them?

And after all that, providing meaningless forms, putting headers on every page, going to a Fedex location to send the packet, after weeks and weeks of waiting, we got the response that everyone gets – no bond, no release.

And a third example. I wrote about this in August 2017.

When considering going to the ICE office, what at a normal office might take fifteen minutes takes hours. One paying a bond for someone to be released from detention should consider bringing camping gear based on the amount of time it takes a team of officials to fill in some spaces on a few forms.

After receiving an order in the mail from an immigration judge that a case was terminated, and after calling over and over to speak to an officer and getting no responses, I went to the ICE office to pick up the client’s green card, confiscated when the client was first detained. Carefully strategizing, I figured I should not go between 11 a.m. and 2 p.m. as I could be told the officer would be at lunch. As ICE empties out by 4 p.m. or so, I figured no one would be eating lunch after 2 p.m. Well, when I got there after 2 p.m., I was told the officer was at lunch. I was given one of those pager devices like you get at a P.F. Changs and went to the cafeteria and waited about 45 minutes. Then, after the plastic square vibrated, I saw the officer. In the matter of two minutes, I was told:

A) We don’t have the file. (They did.);

B) You should have come right after court? (There was no court, the judge issued a decision on paper. Also, ICE would not have the file right after court as their counsel would still have it and their offices are not always co-located);

C) Your client has to travel from his home more than 1,000 miles away because we don’t return green cards to attorneys. (I have been picking up clients’ green cards for 20 years);

D) Your client chose to have court in San Diego. (My client did not choose to have court at all. DHS arrested him placed him in removal proceedings. I think of the hundreds of clients I have had in 20+ years, two “chose” to go to court);

E) Your client should have moved his case closer to him. (Issues in the case were tied to the border and the case could not be moved because government officers would then have to travel more than a thousand miles for court);

F) I can’t give the card to you, but I will mail it to the client. (There is no reason not to give me the card. Lawyers stand in for their clients for things like this all the time. That’s what we’re for.)

They did not mail the card. I called repeatedly and never got a call-back. The client had to go to the closest ICE office to her (a two hour drive), where an officer ordered the file and then gave back the card when he got the file.

And finally, under the Freedom of Information Act (FOIA), people have the right to see the files the government has about them. An immigration file for an individual is kept by USCIS though ICE and CBP access it. The file is called the Alien-File or A-File. To request a copy of the file, one makes a request of USCIS. However, because the contents of the A-file are also put there ICE, ICE has to review the contents that it put in the file to approve release of the contents as there are exceptions to release to protect the identities of officers and to protect law enforcement processes and investigations and stuff like that. USCIS responds to the FOIA request and then informs the requestor that pages have been sent to ICE for their review and release. Then, ICE releases the material it is willing to release.

About a FOIA request I made to USCIS, I got an email from ICE FOIA on February 1, 2018:

Dear Jonathan David Montag,
The password to open the responsive records delivered in a separate email for 2018-ICFO-##### is listed below. If you do not receive the email containing the responsive documents within a reasonable time frame please contact our office at [No address given].
Document Password: ########
Sincerely,
US DHS Immigration and Customs Enforcement FOIA Office

The email did not inform me which client the request was for, but I figured in a fews days I would get another email, enter the password and get the file. Unfortunately, I got nothing. So, I on April 11, 2018, I emailed the ICE FOIA Office in our nation’s capital:

On February 1, 2018, I received the email (below) informing me that I would receive another email separately. I have not received that other email. Can you please send me the response to FOIA request 2018-ICFO-##### and the password if it has changed? Thank you for your assistance. I then waited and waited and got no reply, so on May 23, 2018, I emailed again:

On February 1, 2018, I received the email (below) informing me that I would receive another email separately. I have not received that other email. Can you please send me the response to FOIA request 2018-ICFO-##### and the password if it has changed. Thank you for your assistance. I earlier made this request on April 11, 2018. Thank you.

As of July 3, 2018, still no response, so I printed out their email sending me the password, the two emails asking for the response, and an online status report that the request was indeed processed, and mailed ICE an actual letter (envelope and stamps, like the Pony Express) with these documents and asked again for the FOIA response. What is the chance they’ll ever respond and if they do, it won’t be a bunch of blacked out pages?

From the local offices, to their public affairs functions (websites), to their centralized FOIA function in Washington, DC, ICE just does not give a nit.

There are serious gripes about ICE in deporting the highly vulnerable, housing mothers away from their babies and not keeping records to reunite them, moving detainees from their families and attorneys to remote parts of the detention gulag, depriving aliens of medical care, and shackling delivering mothers to hospital gurneys, which may just be law and policy that ICE itself cannot do much about. There is criminal stuff, rape and theft, for example, that is always going to happen and is certainly not policy,  though certainly ICE needs to vigilantly police itself. However, there is also all the non-criminal malfeasant stuff like lying about the availability of release, not checking the mail, not answering phone calls, not correcting websites and other public information, not releasing FOIA information, and giving false legal advice. These are reasons to consider more fundamentally the entire ICE culture. It is the failure to honestly and efficiently and reasonably do their jobs, as necessary and unenviable as those jobs are, that makes ICE full of it and in need of dramatic reform. Posted July 8, 2018.


 

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