Replying to David Bier's Response to My Critique of His Cato Institute Study

By Dan Cadman on September 17, 2018

On September 12, the Center published a blog post I wrote critiquing a study authored by David Bier and published by the Cato Institute.

In his study, Bier alleged that Immigration and Customs Enforcement (ICE) agents in Travis County, Texas, and by his statistical extrapolation all of Texas, had "targeted" thousands of U.S. citizens in their law enforcement efforts. My critique of Bier's work was unsparing.

Bier responded quickly and has now augmented defense of his study with a blog post. I dislike this kind of back-and-forth and don't intend to continue it in perpetuity, but let me make a few points.

In his response, Bier alleges that in my critique, I accused an ICE special agent of perjury. I did nothing of the sort, and that is precisely the kind of sensationalism that condemned his report in the first place. What I did say was that a deposition of a single ICE agent, in a single case, in a geographic area distantly remote from the region of Bier's study was of limited utility in arriving at the kind of conclusions he leapt to. It was, and remains, my view that seizing upon remarks in that deposition was a thin gruel on which to arrive at overarching suppositions to support the argument that ICE agents routinely "target" U.S. citizens in Travis County, or Texas more generally.

I also note that his response now walks back use of the word "target" to some extent, although he appears to want it both ways. He also misapprehends my statement that when ICE responds to biometric data passed to them in order to file detainers it is, in essence, a passive and reactive exercise. He states in that regard:

Moreover, it is incorrect to claim that ICE agents "merely respond to information passed to them" — Travis County Sheriff's Office doesn't make assessments of removability or citizenship, nor do they issue detainers. ICE makes those determinations.

Bier is missing the point and I stand by my position. Yes, ICE officers do make decisions as to whether a detainer is appropriate based on matches of the biometric and biographic data with data in Homeland Security systems. But all of the information, biometric and biographic, arrives at ICE courtesy of an electronic pass-through of the arrest and booking data the FBI receives from Travis County Sheriff's Office. If the individuals didn't engage in conduct leading to their arrest for criminal offenses by state or local officers, then the booking data wouldn't exist to be relayed. ICE initiates none of it. Bier appears not to comprehend the mechanisms by which arrest data flow from local, to state, to federal organizations that collect and analyze it.

Bier also suggests I imply that ICE agents are using only "gut instincts" by which to guide their decisions. Nothing could be further from the truth. They are guided by facts and circumstances that lead to reasonable suspicions of alienage, notwithstanding what the individual may claim to police about citizenship when arrested.

Seasoned agents can make reasoned deductions from the facts at hand that may not be immediately evident to novices. This is understood and accepted as a legal premise in virtually every courtroom. If one looks at affidavits routinely filed by police and federal agents in support of arrest or search warrants, they usually begin with a phrase along the lines of "based on knowledge and belief", followed by a recitation of the agent affiant's work experience as proof to the reviewing judge that the agent's knowledge and experience count for something. That Bier has chosen to misinterpret my remarks appears to me as more evidence of his paper-thin knowledge of how law enforcement in any organization, immigration-oriented or otherwise, works.

Bier doggedly persists in his claim that ICE agents routinely kinda-sorta-maybe target U.S. citizens, but his statistics are open to multiple interpretations, and as proof of his overblown assertions in the original study, he has only been able to point to anecdotal examples of mistakes made by ICE.

In my piece, I acknowledged that indeed mistakes are made from time to time, but what law enforcement agency doesn't make them? Show me an enforcement agency with a record of no mistakes and I will show you an agency that's doing nothing. As is often said among law enforcement professionals, "Big cases, big problems; small cases, small problems; no cases, no problems." By repeating this insider's adage, I am not suggesting that agencies needn't concern themselves with mistakes; of course they should. Learning from mistakes is an important tool for any agency, but so is recognizing their occasional inevitability. The challenge is to develop institutional mechanisms to deal with them and to provide the means for curbing their repetition in the future.

But even acknowledging occasional, and sometimes serious, mistakes on the part of ICE, the misidentification of U.S. citizens could not possibly be at the level Bier has asserted either in regard to Travis County or the state of Texas.

In this litigious age, if so many U.S. citizens had been falsely accused and adversely targeted by ICE, where are the hundreds of lawsuits? You can bet that if they existed, the American Civil Liberties Union, or UnidosUS (formerly the National Council of La Raza), or the Mexican-American Legal Defense and Educational Fund, or dozens of other advocacy groups would be lining up and eager to take those cases on. That Bier can only identify a few anecdotal cases works against his argument, not for it.

Finally, let me also note that in a series of twitter exchanges with my colleague Jessica Vaughan immediately after my critical blog was posted, Bier accused us at the Center, among other things, of being "nativists". The allegation is laughable, as anyone familiar with the composition, backgrounds, and diverse political views of the Center's board, staff, and fellows could tell you.

What we all share is a firm conviction that in immigration matters, the rule of law should abide and that immigration is a subject so important to the future of our nation that it deserves to be discussed free of baseless accusations of nativism, racism, or the like.

That Bier descended so promptly into casting such aspersions is to his detriment, not ours. I generally find that when scholars and authors resort to name-calling against their critics it is because they don't have a solid line of defense for their work.

When I take a step back and reflect on it, I'm left with the recognition that Bier's tweetstorm and his blog response are really just distractions. He asserted in his original piece that 814 "targets" of ICE detainers in Travis County claimed U.S. citizenship (which claims he takes at face value), and therefore "[a]pplying the rate of wrongful detainers in Travis County to all detainers in the state of Texas from 2006 to 2017 implies that ICE wrongfully placed detainers on at least 3,506 U.S. citizens statewide." So my challenge to Bier is simple, and based on the premise of corpus delicti:

You said it. Prove it, and not just with abstract and unverified statistics subject to interpretation. Show me the hundreds of wrongfully "targeted" citizens that constitute the live body of evidence.