ICE: The American Gestapo

by Travis

Last week, agents of Immigration and Customs Enforcement (ICE) detained two men in Middlesex County, New Jersey, on Thursday morning, moments after taking their children to school.

A third man, Harry Pangemanan, spotted ICE agents in undercover cars outside his home as he was about to drive his daughter to school, ran inside the house and refused to open the door. His pastor came to Pangemanan’s house and recorded video of the agents knocking on the door.

Pangemanan eventually fled to the Reformed Church of Highland Park where he will be sheltered from the government. The church has been providing sanctuary for other undocumented immigrants in the community: “We had one night when 35 dads were taken in one night from Avenel, New Jersey, from the same apartment complex. I had 60 kids become orphans that night or become fatherless,” Rev. Seth Kaper-Dale said. ““ICE decides that they want to take the guy that just won the MLK award for repairing 209 houses during Hurricane Sandy, and assault and threaten him.”

Harry Pangemanan explained: “We are just here trying to achieve our dreams, working hard, provide for our family.”

Gov. Phil Murphy raced to the Reformed Church of Highland Park to show support for Pangemanan and the other immigrants living in the sanctuary of the church. The two immigrants detained Thursday in New Jersey and those being sheltered at the church are all from Indonesia. They fled their country in the late 1990s when Christians were being persecuted in the country. Their children were born here. The men have no criminal records.

Representative Frank Pallone, visiting his constituents’ church, highlighted the plight of the persecuted:

“To me this is even more egregious that people persecuted for religious reasons who would normally qualify for political asylum on that ground not only can’t pursue it but are now are being rounded up and being detained and deported. We know if they go back, they’re going to suffer the consequences of their religion, which is outrageous.”

The president, meanwhile, has pledged to deport more than 2 million undocumented immigrants.

New Jersey government officials have taken up the issue in a letter to the Department of Homeland Security Secretary, Kirstjen Nielsen, accusing them of targeting what the policy deems “sensitive locations.”

Search the news for “ICE immigration” and you will find that this is just one of many stories popping up in recent weeks.

But why?

The uptick in raids is a direct result of Trump’s Executive Order 13768, titled “Enhancing Public Safety in the Interior of the United States,” which increased immigration enforcement along a new series of categories for undocumented immigrants to meet the President’s quota. I discussed detentions and deportations further under Trump in more depth here.

To boost their stats, ICE began deporting immigrants who showed up for their regularly-scheduled “check-ins” with ICE officers: “Under the previous administration, many were allowed to stay for humanitarian reasons if they faithfully appeared for periodic meetings with ICE and didn’t commit crimes.”

This year, an unknown number who appeared for ICE check-ins were arrested or given an ultimatum to leave: “This is all about the low-hanging fruit,” said Charles Kuck, an Atlanta immigration attorney who teaches at Emory University. “It’s how you can spend the least amount of money to get higher deportation numbers.”

In their endeavors to please an authoritarian President, ICE has become the American Gestapo. If this characterization seems like a ridiculous Reductio ad Hitlerum, consider that Harry Pangemanan’s home was vandalized the day after the incident with ICE. Whether this occurred at the hands of the Gestapo ICE agents or brown shirts acting on their behalf remains to be seen.

Secure Communities

Trump’s Executive Order instructed immigration law enforcement officials to prioritize removal by reinstating the Secure Communities Program and eliminate its successor, the Priority Enhancement Program (PEP). Keep in mind, both of these programs were created administratively, through DHS policy: Neither policy was passed by Congress, so neither program is law. No regulations were passed to govern either program’s implementation.

The Secure Communities was a pilot program starting with 14 jurisdictions in 2008 under the administration of George W. Bush. The program greatly expanded under Barack Obama to over 3,000 jurisdictions across the United States.

Secure Communities had a threat-based approach, prioritizing three levels of categorization based on the National Crimes Information Center’s (NCIC) Uniform Offense Classification. But due to its confusing implementation, the program was heavily criticized for diverting focus from its original goals of deporting criminals to facilitate general wide-sweeping deportation.

By summer 2011, state and local partners to the program came to resent the program for its detrimental effects on budgets, local law enforcement operations, and community sentiments. Several jurisdictions tried to “opt out” from the Secure Communities program, confused by conflicting guidance whether participation was mandatory.

The authors of a 2011 study released by the Chief Justice Earl Warren Institute on Law and Social Policy at UC Berkeley School of Law highlighted several findings:

  • Only 52% of Secure Communities arrestees were scheduled to have a hearing before a judge.
  • Approximately 88,000 families that included U.S. citizens had a family member arrested under the Secure Communities program.
  • Among Secure Communities arrestees who had an immigration hearing, only 24% had an attorney.
  • ICE arrested roughly 3,600 United States citizens through the program.

A New York Times editorial called Secure Communities “misguided,” in part for how it “[strains] local resources.”

A 2014 study found:

“Our results show that Secure Communities led to no meaningful reductions in the FBI index crime rate. Nor has it reduced rates of violent crime—homicide, rape, robbery, or aggravated assault. This evidence shows that the program has not served its central objective of making communities safer.”

Another 2014 study found:

“Although a large body of evidence reports that municipal police can have an appreciable effect on crime, involving local police in federal immigration enforcement does not seem to offer measurable public safety benefits. Non-citizens removed through Secure Communities either would have been incapacitated even in the absence of the program or do not pose an identifiable risk to community safety.”

As a result of the backlash, President Obama – who had been dubbed the “Deporter in Chief” – moved to mollify some aspects of the Secure Communities enforcement policies, eventually adopting the Priority Enforcement Program in 2015.

Priority Enforcement Program

U.S. Immigration and Customs Enforcement’s operational posture under Secure Communities was temporarily suspended by DHS policy from November 20, 2014, through January 25, 2017. Its replacement, the Priority Enforcement Program (PEP), enabled DHS to work with state and local law enforcement focusing on convicted criminals and others who pose a danger to public safety. PEP was established at the direction of former DHS Secretary Jeh Johnson in a November 20, 2014 memorandum and discontinued the Secure Communities program, stating: “Unless the alien poses a demonstrable risk to national security, enforcement actions through the new program will only be taken against aliens who are convicted of specifically enumerated crimes.”

PEP modified Secure Communities’ threat-based approach with its three levels of categorization, with priority clarification:

  • Priority 1 aliens were deemed “threats to national security, border security, and public safety,” whose removal was prioritized with asylum authority given to: An ICE Field Office Director; CBP Sector Chief; or CBP Director of Field Operations.
  • Priority 2 aliens were deemed “misdemeanants and new immigration violators,” who should be removed with asylum authority given to the aforementioned, plus: USCIS District Director; or users Service Center Director.
  • Priority 3 were those aliens found guilty of “other immigration violations, with asylum authority given to the previously aforementioned, plus: an immigration officer.

Resources were dedicated by priority, and all other non-criminal undocumented immigrants were not prioritized for removal. This change drastically reduced the number of deportations in the final two years of the Obama Administration.

Welcome to Trumpistan

Trump’s Executive Order 13768, titled “Enhancing Public Safety in the Interior of the United States,” increased immigration enforcement in reaction to what was criticized by the Right as lax enforcement of immigration law by the Priority Enhancement Program.

David A. Martin, professor of law emeritus at the University of Virginia and former principal deputy general counsel of the Department of Homeland Security from January 2009 to December 2010, said at the time of the EO’s signing:

“These priorities replace a set of priorities adopted by then-Secretary of Homeland Security Jeh Johnson in November 2014, and they sweep far more broadly. And unlike Secretary Johnson’s, they do not set up an internal hierarchy to indicate which categories should be emphasized when resources are short — as they always are. An old canard applies: When everything is a priority, nothing is a priority. In practice, this feature gives individual agents wide latitude to follow their own preferences — or perhaps biases.”

Continuing:

“Secure Communities became highly controversial when it led to the ICE arrest of long-resident unauthorized immigrants, often based on mere traffic offenses. The political reaction led many localities to cut back more generally on ICE cooperation. The Priority Enforcement Program was designed to restore SLEA (state and local law enforcement agencies) cooperation. It called for ICE to narrow greatly the circumstances in which custody requests or information requests would issue on the basis of those ICE fingerprint checks, so that jurisdictions would generally be asked to hold or turn over only persons with serious criminal offenses. PEP succeeded in winning back at least tentative cooperation from many SLEAs. President Trump’s decision to revive “Secure Communities” — even using that controversial name — is almost a taunt, likely to be counterproductive, strengthening the resolve of non-cooperating jurisdictions.”

In February 21, 2017, DHS released additional guidance, clarifying that ICE was officially terminating the Priority Enforcement Program (PEP) and restoring Secure Communities, directing its personnel to take enforcement action consistent with the priorities set forth in the executive orders:

“Under this Executive Order, ICE will not exempt classes or categories of removal aliens from potential enforcement. All of those present in violation of the immigration laws may be subject to immigration arrest, detention, and, if found removable by final order, removal from the United States.”

“The guidance makes clear, however, that ICE should prioritize several categories of removable aliens who have committed crime, beginning with those convicted of a criminal offence.”

ICE echoed this language in their response to their arrests of Indonesian refugees, saying in part:

“The enforcement actions ICE employs are intended to fulfill the agency’s responsibilities fairly and safely. Under the President’s Executive Orders and pursuant to the Department of Homeland Security’s implementing guidance, except in certain limited circumstances, ICE does not exempt classes or categories of removable aliens from potential enforcement. All those in violation of U.S. immigration laws may be subject to immigration arrest, detention, and removal from the United States pursuant to a final order of removal, issued in accordance with law … Individuals subject to removal proceedings before the immigration courts receive full and fair proceedings. During that time, they may apply for any relief or protection from removal for which they may be eligible, including asylum. If, at the conclusion of removal proceedings, a federal immigration judge (or, if the order of removal is appealed, the Board of Immigration Appeals) orders an alien removed from the United States and does not grant such protection, it is ICE’s duty to enforce that order, unless a stay of removal is entered. If removal orders are not given effect, our immigration system would simply have no integrity.”

ICE agents are caught in the dilemma of military obedience known as “superior orders,” also called the Nuremberg Defense, when typically good men execute unjust laws when “just following orders.”

Sometimes, the actions of military or law enforcement agencies are blatantly illegal, breaking international humanitarian laws of war established in the Geneva and Hague Conventions. Such was the case with the Nazi SS Einsatzgruppen, the Soviet People’s Commissariat for Internal Affairs (abbreviated NKVD), and the American soldiers at the My Lai Massacre in Vietnam. These forces acted on Superior Orders, and they acted with the idea of support – either real or perceived – from their fellow countrymen.

But what ICE is doing is not illegal. Just as during the Holocaust, when the American government turned away thousands of Jewish refugees, port authorities were “just following orders” – and following the law established in the Immigration Act of 1924.

Today, we turn away Muslim refugees and deport migrant workers, destroying families to the detriment of both our economy and our soul.

There are no new stories, only new characters.

We need to ask ourselves: In ten years, when the United States is no longer the world’s largest economy: Will the tables turn?

Will the world remember our persecution, detention, and deportations of immigrants who came to this country in pursuit of a better life?

Will they remember our complacency?

In that foreseeable future, when Americans seek employment in a foreign country, will they tell us: “Americans need not apply?”

More philosophically, we need to ask ourselves if we believe in “victimless crimes.” Like many other “crimes” codified in national and state law, immigration – in and of itself – has no victims; moreover, the economic data proves that immigration is a net positive to society. If we believe in the sovereignty of the individual, we would provide a path to citizenship to anyone who can pass a background check.

For a better functioning civil society, we must remember that ethics are more important than law, and that although borders may segregate nations, a person on the other side is still a person.