We’re As Cold As ICE

There are two explanations, the first tugging at the heartstrings of every American who hates foreigners, whom they then conveniently include in the morass of “illegals” without the slightest clue of whether they’re undocumented or third-generation Cincinnati. The other are the people with accents and vowels at the end of their name who come to prominence for having committed a crime, apart from their mere existence.

The criminal ones are certainly a far easier sell. Think the murder of Kathryn Steinle by Juan Francisco Lopez-Sanchez, used as the posterboy for the “worst of the worst,” the alien who shouldn’t be here at all and yet not only came, but killed. Horrifying.

Few would argue that someone like Lopez-Sanchez are worthy of any immigrant sympathy, but what of the many who are here unlawfully (note: not illegally, but unlawfully) who commit no crimes, pay taxes (as do we all) and perform services that we need and appreciate? You know, the good illegals.

The official message was that they weren’t to be the priority of Immigration and Customs Enforcement, who had their hands more than full ridding us of the bad ones. Then the stories started emerging of ICE hanging out in front of schools picking up papa dropping off his daughter at school, days before graduation, beloved by his Trump-voting community

The rationalization is that they are criminals by dint of their being here, which is not quite accurate. They may well be undocumented, but lacking documentation does not equate to committing a crime, and the remedy is to return them to the nation from whence they came, not put them in prison. Even so, the justification is that they deserve what they get, as they knew they were here unlawfully and can take no refuge in being the good kind of undocumented immigrants.

But then, they aren’t the people we love to hate. They aren’t a problem beyond the OCD haters who just have it out for anybody who lacks the right papers. They aren’t the people we were told ICE would be going after. Tim Cushing explains.

Mission creep is the mission, as Immigration and Customs Enforcement has (inadvertently) made clear.

A new document received by ProPublica under a Freedom of Information Act request demonstrates that the U.S. Immigration and Customs Enforcement (ICE) has adopted a policy that conflicts with both President Trump’s executive order (EO) and public Department of Homeland Security (DHS) guidelines on immigration enforcement. I commented for the story, which you can read here.

The bottom line is that the memo shows that for months, ICE has been requiring agents to arrest all unauthorized immigrants whom they “encounter,” regardless of whether they are otherwise priorities for removal. Previously, ICE had admitted that it sometimes arrests non-prioritized immigrants, but this memo goes much further, requiring them to do so in all cases.

Is this a problem? Well, yes. In fact, it is.

ICE would rather deploy its limited workforce as inefficiently as possible.

Under the Trump EO, no one is “exempt” from potential removal, but officers are instructed to use their discretion to focus on those who fit these priorities. Notably absent from this list: every unauthorized immigrant “encountered” by an ICE officer.

This wording is in the executive order for two reasons: to avoid legal challenges and to prevent manpower waste. ICE apparently feels it’s been ordered to toss out every immigrant agents come across, whether or not they pose a safety risk and/or have a criminal record.

There are only so many ICE agents, ICE jail cells, immigration judges and seats on the bus. As Mario Machado explained, the capacity of ICE to deal with the estimated 11 million undocumented immigrants is a hard limitation on how much damage ICE can do. Logistics are a bitch, no matter how passionately you disagree with them.

But why has ICE ignored the professed policy of going after the bad hombres and instead issued a mandatory directive  to go after all undocumented immigrants agents encounter? Is this an agency that’s gone rogue?

The memo proves that the agency wants to have as few limits as possible on its authority, and it believes that no one in the White House or in DHS will stop them, even when it ignores their orders. This effect is not new to the Trump administration. ICE flouted the executive actions of President Obama as well. It is new, however, to see that the agency is spelling out its defiance in written instructions to its agents. This makes sense given that the agency’s performance metrics are mainly the quantity of removals, not the quality of removals.

We’ve become inured to rule by bureaucrat, by agencies doing what they please in an effort to accomplish an agenda that Congress denies them. It’s as true for immigration (think DACA and DAPA) as it is for Title IX. Part of this is the sense that Congress is incapable of performing its function, which includes the aspect of senators speechifying for the crowds while actually doing nothing in the off hours but snagging that gig on Meet The Press. Then again, there is the sense that we may be far better off with a worthless Congress than a functional one.

But much as we may hold Congress in contempt, what is an ICE agent to do when he happens upon an undocumented immigrant? What is the message to be sent by the bosses to the grunts, that there are laws that have duly enacted and studiously ignored? If an ICE agents is left to his own discretion to decide when he is to perform the job with which he’s charged and when he is to turn away from someone he knows to be deportable, what of the considered determination of our legislative branch of government as to who is allowed to cross that immigration line?

This isn’t the same as a cop giving a speeder a warning, telling him not to speed again. You can’t tell an undocumented immigrant not to be undocumented again.

We are nation dependent on the labor, taxes and social contributions of immigrants, documented or otherwise. We struggled with the policy aspects for decades, to some extent taking into account the fact that we have a great many “good” immigrants who have made lives here, contributed to the nation and done no significant wrong. That ICE has gone rogue in their emphasis on quantity rather than quality of enforcement is no big surprise. The simplistic assessments are invariably based on numbers, as anything else requires more thought than people are willing to give.

ICE going rogue is no more acceptable than any other department or agency. But then, they are enforcing extant law, because Congress has failed for decades to address immigration policy and resolve the status of the “good” but undocumented immigrants. Leaving it in the hands of the ICE agents, with the executive branch incapable of, or insufficiently interested in, reining them in is no way to run a nation.

And the public doesn’t help when we persist in our simplistic generic anger and hatred of immigrants, just as our ancestors were when they arrived on these shores. This is disaster happening around us, and most Americans won’t grasp it until the damage is irreparable. We’re going to miss them when they’re gone, but by then, it’s too late.

33 thoughts on “We’re As Cold As ICE

  1. Jim

    As a frequent guest at your place (thanks for the education, by the way) I realize I risk your ire, but as a layman ignorant of the law, I’d appreciate even a very short explanation of the distinction between ‘unlawful’ and ‘illegal’. Google, normally my friend, produces mixed results on the distinction, with many results saying they’re synonymous or a distinction without a difference.

    Also, is it not the case that, in order to pay taxes on wages, one must have an SSN? If that’s accurate, does the misappropriation of a random citizen’s SSN amount to ‘illegal’?

    Again, just curious. Shields up. P.S. I don’t understand (sigh) the first paragraph, either: two explanations for what?

    1. SHG Post author

      As to your first question, “unlawful” means not authorized by law. “Illegal,” on the other hand, means in violation of a criminal law. Many words are conflated these days, which is unfortunate as it makes nuanced distinctions difficult, if not impossible.

      As to your second question, an accurate response would require a lengthy and detailed legal explanation, which I would be happy to provide at my usual hourly rate. Suffice it to say that the government doesn’t mind taxes being withheld and no return seeking a refund, and taxes are also paid on property, purchases and sales of goods, etc., which require no SSN. We all pay taxes all the time, whether we realize it or not.

      1. C Streak

        Many words are conflated these days …,

        For instance, “confused” and “conflated”. “Conflated” can be left to textual scholars, editors, and eensy weensy kiddies.

        1. SHG Post author

          When unlawful and illegal are proffered as synonymous, they are not merely confused, but conflated. You’re welcome.

  2. B. McLeod

    Enforcement of almost any law is going to lead to some number of sad stories. Even when (if) congress crafts changes to try to legislate around the sad stories and undesirable outcomes, they won’t hit it perfectly. There will always still be some number of sad stories. It is one of the costs of having and enforcing laws that are written without contemplation of the details of every specific case in which they may be applied.

    1. SHG Post author

      Very true (as is often noted here). That said, it’s one thing to enforce laws that reflect what Congress intends, which nonetheless result in occasional sad stories, and another to enforce old laws that persist because of Congress’ inability or unwillingness to address them, and which few, if any, support as good policy. If we’re to do harm, at least it should be the product of good intentions rather than neglect and partisan failure.

  3. Jeffrey Gamso

    There’s also the Occam’s Razor explanation of the ICE memo: It’s easier to round up any undocumented person an agent runs across than actually to figure out whether this one or that one should actually be rounded up. (Although even under the memo one might reasonably suspects agents of some uneven enforcement – few undocumented Canadians, even if encountered, are likely to be detained and shipped out; an undocumented Swede, on the other hand, might be at risk.)

    1. SHG Post author

      You think they showed up at the high school, just as undocumented dad was dropping off his daughter, by accident, and said to themselves, “oh crap, whatever should we do now that we’ve randomly encountered this undocumented immigrant whose criminal history is otherwise unknown to us?” I suspect not, but I could be wrong.

        1. DaveL

          It would also seem to be quite a bit safer and less messy to apprehend Dad dropping off his kids at school than a hardened cartel enforcer.

    2. Mike G.

      Those undocumented Swedes need to be rounded up and sent back from whence they came.

      Otherwise we would have an epidemic of Lutheranism, Curling would become the national past time and Lutefisk would replace Apple Pie.

      1. Jeffrey Gamso

        As the song would have to be rewritten, “They go together, in the good old USA, curling, lutfisk, lingonberry, and Volvo.” (Given how it scans, we probably do have to keep them out.)

  4. DaveL

    It seems hard to envision just how ICE could make its own list of priorities any more expansive than Trump’s EO already was, seeing as how the latter already included anybody who had ever done anything chargeable as a criminal offense, however minor and whether ever actually charged or not, let alone convicted, plus a catchall clause that lets immigration agents use their discretion.

    1. SHG Post author

      Funny, I don’t see it as hard to envision at all. Just eliminate any concern about any offense at all and round ’em all up. Bad as it was before, with the “aggravated felony” scam of the Immigration and Nationality Act of 1988, it can always get worse.

    2. JAV

      Techdirt has covered articles where ICE seized websites for suspected IP crimes in the past. It’s easy to find situations where ICE has spread itself thin, and with great zeal. It’s a nice argument for limited government, if that’s your thing.

  5. LocoYokel


    Sorry but I have to disagree. Gonna Gertrude here, but….

    As a legal immigrant that went through the naturalization process as a child, I obviously have nothing against immigration. However there is a process, even though I agree it’s seriously broken, and it’s there for a reason and people don’t get to side step it just because it’s inconvenient and then demand special privileges to have the process and law ignored. If they have been here for years working and contributing I have no problem with giving them priority, AFTER they go back to their country of origin and apply through the process.

    If the law is broken then get Congress off their collective asses and make them fix it. We need to demand they start doing the jobs they were sent there to do any way as a general principle, and start replacing the ones who don’t.

    Children who were born here are obviously citizens, and the ones who were brought here as infants or nearly so and are now adults or nearly so should be given the consideration of the fact that this is the only home and culture they have ever known, but that is what the immigration courts are for, after we fix them. But the woman 9 months pregnant who comes on a tourist visa to give birth here and then demand citizenship because of the child should be denied and sent home, with or without the child – as she chooses (allegedly this is a thing that woman from a certain country are doing on the west coast in some numbers).

    Let the flames start….

    1. SHG Post author

      As you note, there are a lot of variations on a theme, and I don’t want to go through each of them. But your primary point, that legal immigrants get burned for having jumped through all the hoops when undocumented immigrants want a free ride is probably the best argument around. But that’s the question Congress needs to address. As for the unduly passionate who feel all undocumented immigrants should be welcomed with hugs and kisses, they don’t love legal immigrants quite as much, or at least, enough to respect that you paid the price to be here. Go figure.

  6. Lee

    I invoke Pournelle’s Iron Law to explain ICE’s behavior:

    In any bureaucratic organization there will be two kinds of people:

    First, there will be those who are devoted to the goals of the organization. Examples are dedicated classroom teachers in an educational bureaucracy, many of the engineers and launch technicians and scientists at NASA, even some agricultural scientists and advisors in the former Soviet Union collective farming administration.

    Secondly, there will be those dedicated to the organization itself. Examples are many of the administrators in the education system, many professors of education, many teachers union officials, much of the NASA headquarters staff, etc.

    In every case the second group will gain and keep control of the organization. It will write the rules, and control promotions within the organization.

    Those with positions of power in ICE want more power and indiscriminately deporting undocumented immigrants without furthers that goal.

  7. KP

    They’re just bureaurats, and like the Police and the Tax Dept they realise the easiest way forward is to pick up quiet middle-class, employed immigrants who have something to lose.

    So they will always hang around looking for someone dropping their child off at school rather than hunting down some scruffy guy on a bad street corner with a gun in his pocket and a 100gm of ice to sell.

      1. Patrick Maupin

        If they were just hanging around the school, the explanation for this is probably worse.

  8. Ronald Tocchi

    I’m an immigration lawyer and an occasional lurker here. Neither of these characteristics are terribly relevant to my observations, but they may provide some context for what I’m about to say. And Scott scares me, so I’m trying to be super-careful with my thinking.

    ICE may generally be divided into three subdivisions: Enforcement and Removal Operations (ERO), Homeland Security Investigations (HSI), and the Office of the Principal Legal Advisor (OPLA). ERO officers are the ones you generally see on TV with the “Police” markings on their tactical gear; they also act as detention custodians at private-contract jails (that’s really DRO, but is also another story altogether). HSI officers prefer to be addressed as “Special Agents.” They investigate criminal aspects of in-country violations (i.e. human trafficking) that Customs officers tend to handle near the border, and want to be seen as the immigration FBI. OPLA lawyers generally act as prosecutors in immigration court proceedings, although they try to rotate in with AUSAs in District Court, particularly for illegal re-entry indictments under Title 8, to get experience in “real” court and maybe one day, just one day, get a shot at becoming an assistant US Attorney. They prefer to be addressed as “district counsel” or “sector counsel”, which both are slightly dated (and inaccurate) terms.

    My (admittedly anecdotal) sense is that ICE suffers from an institutional lack of confidence in the Agency’s mission at all levels of the organization. I’ve hinted at some of the symptoms of this problem above, but ICE people seem to worry that no one takes them seriously. They worry that they’re not “real” cops or prosecutors. No kidding. Not only do many people outside of the federal government reinforce this view (I’m looking at you, City of Los Angeles, and yes, I know, no hyperlinks), but I’ve personally observed AUSAs and DEA agents act dismissively of their ICE counterparts. So, you’re dealing with people who suffer from a massive group inferiority complex. And they have guns.

    The only comparable group of people I’ve encountered are federal probation officers. It’s always fun to tease those guys by pointing out they they’re not real cops. (Sorry Judge; I know they’re a big help at sentencing hearings.)

    My point is that, after the Trump election, many ICE officers (and OPLA lawyers) felt free to ignore the “enforcement priority” regimen that the Obama Administration had (in their view) forced on the organization in an unfair, political, and underhanded attempt to win votes for the Clinton campaign. They believed that the Administration would have never tried to interfere with the mission of the FBI (or other agencies like DEA or ATF) just to get votes. Now they feel like teenagers who have been let out of the house on Friday night after an unfair grounding. It’s stunning. I’ve seen ICE prosecutors blow up at me (and judges) during calendar hearings with he sense of indignity that is usually only reserved for Justice Department lawyers.

    In sum, I believe that the lack of consistent, fair leadership at the highest levels of the federal government has simply created a vacuum in which an agency with a massive inferiority complex may now act with little supervision. This applies to both the current and the former administration, and Congress as well. It’s fun to make fun of them for the short haircuts and the “ICE” teeshirts that are three sizes too small, but they’re really not the problem. Most of them are pretty good people, and they’re frustrated.

    One of your commenters touches on the fundamental mess when asking about “illegal” versus “undocumented.” Immigration enforcement efforts are civil proceedings, but they still involve enforcement efforts by people with guns and handcuffs who put other people in jail. Neither the general public nor the “detained” (read: incarcerated) immigrants are likely to appreciate a civil-criminal distinction when being put into a cage, and often in general-population prisons with “real” criminals.

    I’m not trying to make a political statement, and ICE prosecutors who know me would be fall-down shocked to hear me defend them (let’s just observe that sometimes good advocacy might require manipulating an opponent’s inferiority complex). But you shouldn’t expect – or at least I don’t expect – a group of federal bureaucrats to act with restraint and integrity when their regulatory mission is technically and socially muddled. Bureaucracy discourages initiative.

    Congress needs to act and amend the INA. The Code still refers to defunct legacy agencies and institutions that predate 9/11, and the vast majority of this problem could be addressed by making simple changes to the Section 212 unlawful presence bars, or (as you point out) by giving more structure to vague terms like “aggravated felonies” and “crimes involving moral turpitude.” I generally practice in the Ninth Circuit, and the law concerning the immigration consequences of criminal convictions is changing just about. every. day.

    Okay. Thanks for letting me vent.

    1. SHG Post author

      The ICE “inferiority” complex adds a significant dimension to the institutional attitude of ICE. You’re certainly right, that in the hierarchy of federal law enforcement, ICE agents are the poseurs. Excellent points, Ron.

  9. Frank Miceli

    It is tempting to apply the blanket categorization of “good immigrant” to those who entered illegally but remain here unlawfully. Yes, many, probably most, are indeed “good.” However, although the stats are often hidden or disguised by social justice warriors, from my personal observation of a number of California’s local and county jails as well as state prisons, I can say that a very large proportion, ofttimes a majority, of the inmates are immigrants.
    Nor would I say ICE has gone rogue.
    In the first 100 days of the Trump administration: 41,318 immigrants were arrested. Of that total, 30,473 had criminal convictions, ranging from homicide and assault to sexual abuse and drug-related charges. That amounts to roughly 74% percent.
    The other quarter of the total, numbering 10,845, have no criminal convictions and could have been arrested, as Homeland Security Secretary Kelly has said, for reasons including multiple illegal reentries into the country and refusing to check in with ICE officials.
    They also could have been arrested for baseline immigration law violations: crossing the border illegally or overstaying a visa.
    ICE’s top priorities for arrests remain immigrants who they say pose a national security threat or those with multiple, violent convictions.
    Individuals encountered in the course of priority or target arrests can also be arrested and subject to deportation, ICE has said.
    Violators of immigration law who don’t have a criminal record can too be targeted for arrest under certain circumstances. Many of the non-criminal offenders arrested are so-called “arriving aliens,” who have recently crossed the border illegally, according to ICE figures.
    This squares with memos put out by the Trump administration in his first weeks in office, which adjusted priorities for immigration enforcement officers, enabling them to arrest more broadly — virtually every undocumented immigrant in the US entering their purview.
    With some specific exceptions, including DACA recipients, “the Department no longer will exempt classes or categories of removable aliens from potential enforcement,” the memo reads.

    1. SHG Post author

      This is really muddled. Detaining more than 25% non-crim immigrants is massive, huge, yet you suggest it’s no big deal. They’re targeting the non-crim immigrants. They’re targeting immigrants whose crime is traffic infractions. That they also target immigrants with aggravated felonies doesn’t make that 26% disappear, nor are they accidental encounters, which is why your muddling them together, connected by vague weasel words, falls far short of accurate.

      As for the illegal entry, that’s largely nonsense. It’s easy to talk smack, but they have no evidence and it’s all the sort of cheap nonsense talk that their fans will mindlessly believe but is malarkey. They have no evidence of collateral immigration crimes, can’t prosecute, and don’t. This is just spin to create the appearance that they’re not doing exactly what they’re doing. Please don’t spread this crap here.

  10. Frank Miceli

    Hey, Scott, my point was limited to contesting the notion that under Trump the ICE has gone rogue.

    According to the available statistics, 26% of ICE detainees this year are non-criminal immigrants. You see this as a massive, a huge number, demonstrating an excess of zeal in the current ICE. Against an abstract standard, this may be true. However, the percentage of non-criminal immigrants detained under the current administration is much less than in previous years.

    In the eight fiscal years ending in 2015, non-criminal immigrants as a percentage of the total detained averaged out to 50% each year. (high 69%, low 41%). Each year on average the total of all immigrants detained was 347,000.

    Because the number of immigrants caught crossing the U. S. Mexico border has declined since January, more are being detained in the interior of the country rather than along the border. However, the numbers involved do not impair the validity of the pattern discussed above

    What ICE is doing may well be unfair. I’ll take your word for it. I have no basis, anecdotal or not, for contesting the explanations provided by the agency. But what they’re doing is well within the parameters of the Administration’s published guidance. They haven’t gone rogue.

    1. SHG Post author

      Yes, Frank. I (and pretty much everybody who made it through third grade) got your point the first time, except it has nothing whatsoever to do with the basis for the “rogue” accusation. Frank, you are no more allowed to make people stupider than anyone else.

  11. Frank Miceli

    [Ed. Note: You’re of the view that I want to engage in extended discussions about whatever shit exists in your head which you are absolutely certain is very important and deserves my time and attention. You’re wrong. Have more to say? Start a blog and expound to your heart’s content. Just not here. Stop expecting more of my bandwidth, time and attention.

    And use reply rather than start a new thread. Comment deleted.]

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