Abolish ICE?

A movement to take literally, but not seriously

By Andrew R. Arthur on July 6, 2018

On July 4, 2018, in an opinion piece published in The Hill, my colleague Mark Krikorian deconstructed the "Abolish ICE" movement. The headline of that piece explains his main criticism succinctly: "When Democrats cry 'Abolish ICE,' they really mean 'abolish borders'." Krikorian traces the roots of that movement at least back to 2013, when House Minority Leader Nancy Pelosi (D-Calif.) stated: "Our view of the law is, if somebody is here without sufficient documentation, that is not reason for deportation."

There is no doubt that the Democratic politicians who support and promote the "Abolish ICE" movement really mean it. From at least 2010 until the inauguration of Donald Trump, the Obama administration attempted to spend as much time and money as possible not enforcing the immigration laws in the interior of the United States. In a January 11, 2017, Backgrounder captioned "ICE Deportations Hit 10-Year Low", my colleague Jessica Vaughan detailed this decline as it related to criminal aliens, purportedly an Obama administration priority:

In 2016, ICE removed 60,318 criminal aliens from the interior. This is a decline of 4 percent from 2015 and a decline of 60 percent from the peak in interior criminal alien removals in 2010.

The main reason for the decline is the Obama administration's prioritization scheme that has steadily narrowed the types of cases that ICE officers are permitted to pursue. These policies have exempted all but the most egregious alien offenders from deportation. Currently only aliens convicted of felonies, significant misdemeanors, or three lesser misdemeanors are considered priorities, and exceptions are allowed in many cases, such as if the alien has acquired a family or other community ties here.

ICE resources were diverted to an assessment of those cases that had already been filed, to determine which should be terminated or administratively closed. For example, in a November 2017 post, I quoted from an April 6, 2015, memorandum issued by then-Acting Principal Legal Advisor for U.S. Immigration and Customs Enforcement (ICE) Riah Ramlogan captioned "Guidance Regarding Cases Pending Before EOIR Impacted by Secretary Johnson's Memorandum entitled Policies for the Apprehension, Detention and Removal of Undocumented immigrants":

Consistent with the current practice, DHS's enforcement priorities will continue to be national security, public safety, and border security. DHS personnel, including [ICE Office of the Principal Legal Advisor (OPLA)] attorneys, are directed to prioritize removal assets accordingly. OPLA attorneys should continue to review their cases, at the earliest opportunity, for the potential exercise of prosecutorial discretion, in light of the enforcement priorities. OPLA should generally seek administrative closure or dismissal of cases it determines are not priorities. OPLA attorneys should also review available information in incoming cases to determine whether, in a case that falls within an enforcement priority, unique factors and circumstances are present that may warrant the exercise of prosecutorial discretion. Understanding that these factors and circumstances may change as the case progresses, if further prosecutorial discretion review is requested by the respondent, the case should be reviewed again in light of any changed facts and circumstances. Keep in mind that prosecutorial discretion may encompass actions beyond offers for administrative closure or dismissal of the case, including waiving appeal, not filing Notices to Appear, and joining in motions. [Emphasis added.]

These policies were like the first part of the 1902 novel Brewster's Millions by George Barr McCutcheon (and its numerous screen adaptations). The Wikipedia page for that book explains:

The novel revolves around Montgomery Brewster, a young man who inherits 1 million dollars from his rich grandfather. Shortly after, a rich uncle who hated Brewster's grandfather (a long-held grudge stemming from the grandfather's disapproval of the marriage of Brewster's parents) also dies. The uncle will leave Brewster 7 million dollars, but only under the condition that he keeps none of the grandfather's money. Brewster is required to spend every penny of his grandfather's million within one year, resulting in no assets or property held from the wealth at the end of that time. If Brewster meets these terms, he will gain the full 7 million; if he fails, he remains penniless.

Brewster finds that spending so much money within the course of a year is incredibly difficult under the strict conditions imposed by his uncle's will. Brewster is required to demonstrate business sense by obtaining good value for the money he spends, limiting his donations to charity, his losses to gambling, and the value of his tips to waiters and cab drivers. Moreover, Brewster is sworn to secrecy, and cannot tell anyone why he is living to excess. Working against him are his well-meaning friends, who try repeatedly to limit his losses and extravagance even as they share in his luxurious lifestyle.

Like Montgomery Brewster, Barack Obama had trouble wasting the money that Congress had given him to enforce the immigration laws, but that did not stop him. For example, as the Daily Caller reported in August 2015:

The Department of Homeland Security will propose to Congress to direct $110 million away from Immigration and Custom Enforcement's budget and reprogram it to other agencies within DHS like the Secret Service and DHS cyber operations, a source with access to information within ICE told The Daily Caller.

Democrats had gotten used to a regime in which the immigration laws were only enforced in the breach. It is no wonder that with the Trump administration's attempts to revitalize the immigration laws as written, there would be blowback from those same Democrats.

Krikorian explains the recent impetus behind the "Abolish ICE" movement:

The event that sparked the cascade of Democrats calling for the abolition of the immigration-enforcement agency was the upset victory of socialist Alexandria Ocacio-Cortez in a New York congressional primary. Her call for dissolving ICE is not just about the initials, but about the very laws that these overworked and underappreciated federal officers enforce.

Under the heading "Immigration Justice / Abolish ICE", her campaign website argues "It's time to abolish ICE, clear the path to citizenship, and protect the rights of families to remain together." The second item in this list means amnesty for illegal aliens, while the third point effectively means that illegal aliens with U.S.-citizen or legal-resident relatives will get to stay.

I would take the last one point further, and posit that Ocacio-Cortez would also block the removal of any alien who showed up on our borders with an alien child. This would likely lead to a humanitarian disaster as tens of thousands of parents and children surged over the border in search of a "better life" in the United States, a fact that is unlikely to ruin a good slogan, at least until it occurs and is blamed on "push factors" in the sending country.

During the 2016 presidential campaign, a popular saw stated that "Donald Trump should be taken seriously, but not literally," a point that apparently originated in a September 2016 article by Salena Zito in the Atlantic. With respect to "Abolish ICE", the inverse is true: As the above demonstrates, the Democrats advancing this point mean it literally, but the effort is not serious. Both points deserve analysis.

Abolishing the agency that is responsible for enforcing the immigration laws would have been the natural goal of the Obama administration's "priorities" for apprehension, arrest, and removal. So much time eventually would have been spent identifying aliens who fit the specific criteria the administration identified as priorities for removal that the agency would eventually become gridlocked and have ceased to function. This was not like pulling out the green M&Ms from the large-size family pack, or even the hearts from a box of Lucky Charms. Coupled with refusal of sanctuary states and localities to comply with immigration detainers, identifying these illusive priority cases was like finding a few hundred thousand people on the streets in a country of almost 330 million.

In my college experience, time spent in a classroom was the one thing that people bought hoping to get less of it. Under President Obama, immigration enforcement joined that list, at least for the administration and its supporters. If President Trump was actually going to use ICE to go after removable aliens, it only made sense that those supporters would attempt to take that to take that tool away from him. "Abolish ICE" is not a slogan — it is an end in itself.

That said, however, this movement is not to be taken seriously. If the objection of its proponents is that too many aliens are detained and removed, those proponents who are members of Congress can take action to limit the grounds of removability in sections 212 and 237 of the Immigration and Nationality Act (INA). For example, they could eliminate all grounds of inadmissibility except for the criminal grounds in section 212(a)(2) of the INA and the national security grounds in section 212(a)(3) of the INA. Or they can go one step further and limit inadmissibility under even those provisions to only the most serious offenders.

Alternatively, if they were truly interested in maintaining family structures in the United States, those members of Congress could expand eligibility for cancellation of removal for certain nonpermanent residents in section 240A(b) of the INA.

Curiously, however, there is no movement among "Abolish ICE" proponents (or even generally) to take those steps. The question is "Why?"

The answer is fairly obvious, at least to those who follow the goings-on on Capitol Hill: There is no serious support for such actions in the public as a whole. If there were, there would be bills proposing these steps with hundreds of cosponsors; in fact, the urge to do so (or at least being seen to do so) would be irresistible.

So instead, those legislators (and would-be legislators) who oppose the president's immigration policies have decided to target the agency that is charged with carrying out the immigration laws in the interior. Respectfully, this is akin to demanding that the janitors who are attempting to clean up the mess you yourself have created be fired.

The law is clear with respect to criminal prosecutions, removability (particularly as it relates to those who have entered illegally), eligibility for relief, and detention pending removal. ICE is simply enforcing those laws, and getting pilloried for it.

If the real issue is separation of families at the border, this is largely the logical result of provisions in the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) and the Flores settlement agreement, as I have explained elsewhere. Fixes to those laws were included in both the Securing America's Future Act (SAFA, as I explained in a May 2018 Backgrounder), and in the Border Security and Immigration Reform Act of 2018 (as I explained in an analysis of that bill). Each went down to defeat in the House of Representatives, with no Democrats voting in favor of either SAFA or the Border Security and Immigration Reform Act of 2018.

Needless to say, as well, abolishing ICE would have ramifications well beyond immigration enforcement, because the agency's mandate is broader than just immigration enforcement. For example, the agency's Bulk Cash Smuggling Center "identifies, investigates and disrupts bulk cash smuggling activities around the world." Its Child Exploitation Investigations Unit "uses cutting edge investigative techniques to bring justice to consumers, producers and distributors of child pornography, as well as to predators engaging in child sex tourism." Its Foreign Corruption Investigations division "pursues corrupt foreign officials who plunder state coffers for personal gain and then attempt to place those funds in the U.S. financial system." No one seriously debates the need for such enforcement endeavors, but the proponents of abolishing ICE ignore the agency's jurisdiction over of these activities, relying (correctly) on the vast majority of the media to ignore them as well.

Much of the agency's immigration activities are unobjectionable to even the most biased observer as well. For example, on June 25, 2018, ICE reported on its removal of Charles Cooper, a "Liberian human rights violator." That press release states:

A Liberian national, who served as a bodyguard to former Liberian President Charles Taylor and was a member of a paramilitary police unit called the Secret Security Service (SSS), was returned to his home country June 19 by U.S. Immigration and Customs Enforcement's (ICE) Enforcement and Removal Operations (ERO) deportation officers.

An ICE investigation revealed that prior to coming to the United States, Cooper, while a member of the SSS and the National Patriotic Front of Liberia, was directly involved in the persecution of civilians in Liberia. Cooper was also identified as a member of the National Patriotic Front of Liberia, a rebel group founded by Charles Taylor that committed numerous human rights violations.

He was also apparently an absconder from a February 2016 final order of removal. When he was arrested by the New York Police Department (NYPD) for driving while intoxicated on August 11, 2017, ICE lodged a detainer against him, but the NYPD released Cooper anyway, without notifying the agency. ICE eventually arrested him in May 2018 in Staten Island.

Having heard and argued numerous claims related to the Liberian civil war, I can assure you that those involved in human rights abuses during that conflict are not the sorts of immigrants most of the American people (both citizens and lawful permanent residents) would want in this country. Nor are they the "huddled masses yearning to breathe free" who the "Mother of Exiles" is beckoning to this country in "The New Colossus". They are thugs and opportunists whose removal should be expedited, not impeded. The abolishment of ICE, however, would give Cooper and his ilk a peace and security that their victims did not know.

If those who are arguing for the abolishment of ICE do not like the immigration laws the agency enforces, they should change those laws. Few legislators, however, want to go on record arguing for the continued presence of narcotics violators or spousal abusers in the United States, or even those who (just) violated the law and entered illegally. Instead, they apparently want to keep the laws in place, but just not enforce them.

Criticizing the agents and officers who risk their lives upholding their oath to enforce the laws for those enforcement efforts, without attempting to change those laws, is nothing more than gutless grandstanding. And it is just not serious.