ICE Needs Reform, Not Abolition: a Libertarian Perspective

Crying children. Illegal immigrants locked away in cages. Children forced to appear alone in court. Nothing galvanized the nation over the Trump administration’s immigration policies than the debacle of this past summer, which has even drawn comparisons to the Nazi concentration camps.

By “debacle,” I’m referring to the Trump administration’s announcement of its “zero-tolerance” policy along the U.S.-Mexico border. The policy stipulated that illegal migrants crossing the border with children were to be arrested and detained separately. The administration argued that the policy was geared toward deterring migrants from crossing the border with children and fighting sex trafficking across the border. But the policy had unintended side effects.

It turned out that the policy achieved neither goal. In fact, it ended up separating families with legitimate asylum claims, causing mayhem at the border and across the country. Even though the Trump administration ended the policy of separating families, hundreds of children remain separated from their parents (despite a court order mandating the reunification of families), down from a peak of 3,000 children at the time the administration ended the policy.

But the political fallout has yet to fade away. Multiple prominent Democrats have called into question the legitimacy of the agencies responsible for carrying out the zero-tolerance policy, singling out Immigration and Customs Enforcement (ICE) in particular. Alexandria Ocasio-Cortez, a self-described Democratic Socialist who was recently elected to represent New York’s 14th congressional district, has called for the outright abolition of the agency, joining a growing chorus of Democrats that want to shutter the agency.

There is just one problem: ICE actually performs some useful functions. A quick trip to the ICE website shows what ICE has been up to with regards to deporting criminals, usually posted on the top of the front page of the website. These are good things, as criminals who do not have a legitimate claim to be here should be fast-tracked for deportation. Simply calling to abolish ICE ignores these legitimate functions that the agency is tasked with carrying out. It’s foolhardy and ignorant at best because it dashes any hopes of thinking about practical policy proposals and engaging in thoughtful and rational discussion.

First, we need to separate fact from fiction. Let us start with some history. ICE is only fifteen years old, one of many agencies formed in the post-9/11 frenzy and consolidated into the newly born Department of Homeland Security. ICE’s predecessor, the Immigration and Naturalization Service (INS), was abolished when ICE and a few other agencies took its place. Creating the agency and placing it under DHS was an attempt to quell fears that the government would not do enough in the wake of the worst terrorist attack in American history.

Since its inception, ICE’s responsibilities have included both preventing another terrorist attack from happening through our immigration system and enforcing immigration laws domestically. Left-wing commentators are right in asserting that ICE historically has had little regard for due process in rounding up illegal immigrants off the street and deporting them. They also have a point that the agency is overly concerned with deportations and does not take a humanitarian approach to immigration, which stems from its dual responsibilities of regulating immigration and combating transnational criminals, forcing ICE to take a one-size-fits-all approach where their tasks have zero flexibility and does not tolerate a discretionary decision-making process.

But progressives, who have coalesced with other activists and politicians into the “Abolish ICE” movement, either lack a clear vision for what a realistic immigration system will look like or are trying to push the debate in a direction where a reasonable compromise is not possible. After all, most voters oppose scrapping ICE altogether. Even if voters did support shuttering the agency, without a comprehensive plan to get rid of the bad parts of ICE, the agency’s powers would simply shift elsewhere into another agency, which doesn’t accomplish anything.

Now, in an ideal world, ICE would not exist. Immigrants, both legal and illegal, have far fewer incarceration rates than native-born citizens and are far less likely to commit crimes than native-born citizens. Even when immigrants do commit crimes, it would be better to let local police departments handle it instead of federalizing the issue, as one libertarian commentator proposes. But we don’t live in an ideal world, so we should try to prioritize small government and the right to free movement as best we can. To start, we need to recognize that when families were separated, that was Customs and Border Protection (CBP), not ICE. ICE is responsible for domestic enforcement of immigration laws; CBP is in charge of maintaining security at the border (while I’m on the topic, there are important distinctions between the two agencies, which usually intertwine, complicating efforts to reform them). But for now, my proposal will deal solely with ICE and no other agency.

First, to address the heart of the problem, ICE’s Enforcement and Removal Operations (ERO) needs to go. This is the part of the agency that is responsible for mass deportations, which was kicked into high gear under President Obama and continued under President Trump. This should give civil libertarians pause since ERO has broad police powers in arresting and deporting illegal immigrants. Additionally, budget hawks should note that if the U.S. government were to undertake the enormous task of deporting all illegal immigrants from the country, it would carry a price tag of anywhere between $400-600 billion, even when illegal immigration has a positive impact on the U.S. economy. The only part of the agency that should be salvaged is its removal authority, which should be transferred to the other division of ICE, Homeland Security Investigations (HSI), which is concerned with targeting transnational criminals. This will alleviate ICE of any responsibility to deport non-criminal aliens and refocus its efforts on deporting actual criminals, like gangs, sex traffickers, and terrorists.

Second, ICE should discontinue its Secure Communities program, which was shuttered by the Obama administration after it was revealed that it was profiling, but was revived under President Trump. Additionally, ICE should also shutter its 287(g) program, which allows for local law enforcement officers to enter into partnerships with ICE to help the agency identify and deport illegal immigrants, effectively extending the agency’s authorities into local police departments and turning police officers into ICE agents. Both programs have been weaponized by President Trump against cities who refuse to sign onto or comply with these two programs, with the president calling them “sanctuary cities” and threatening to cut off their federal funding.

Third, ICE should close its “stipulated removal” program, which allows for illegal immigrants to waive their right to go to court and instead be fast-tracked for deportation. This program is inherently rife with due process violations; many undocumented aliens do not understand the deportation process and many sign their rights away without knowing exactly what they are doing. Fourth, the number of beds in DHS detention facilities should be reduced (below 30,000 would be a start), so the department has less of an incentive to keep the beds full with immigrants and therefore, less of an incentive to round up immigrants. Lastly, we should shift illegal border crossings from criminal to civil offenses, which removes the mentality that illegal immigrants should be treated as security threats. This would also take off the burden on the Office of Refugee Resettlement (ORR, an agency within the Department of Health and Human Services), which is currently swamped with cases of children needing to be resettled in the country and forcing unaccompanied children to remain in CBP and ICE custody.

I understand that I’m dealing with old news, but our immigration system has yet to face comprehensive reform that both reflects our nation’s values and keeps our nation safe. Even when the news media, political commentators, and social media shift away from talking about immigration, the effects on those impacted are still there. It’s past time that we seriously consider proposals and start thinking about reforming–and shrinking–the agencies and departments that deal with immigration. This includes recognizing that comprehensive reform does not stem from two-word slogans chanted in the streets aimed at policies that rip apart families, but realizing that our immigration system is much more complex and that serious reform tackles all the parts of the larger immigration machine. Ultimately, I want the country to consider the long-term psychologicaleconomic, and international effects of maintaining a hardline immigration policy, which is not good for anyone concerned with pursuing a freer society where freedom of movement is cherished, not belittled.

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