Staggering Under the Weight of a Broken Removal System

By Dan Cadman on June 26, 2016

The Department of Homeland Security (DHS) Office of Inspector General (OIG) has released the report on its inquiry into the release of Haitian national, illegal alien, and criminal Jean Jacques by DHS subordinate agency Immigration and Customs Enforcement (ICE), after which Jacques committed murder. It is simply called "Release of Jean Jacques from ICE Custody".

The OIG inquiry was requested by the two senators and a representative from Connecticut, where the murder took place. It details a series of actions that merit some thought because they suggest not so much incompetence as an agency staggering under the weight of a complex system that renders it nearly impossible to do what should be a straightforward task: deporting a criminal alien who had previously been convicted of attempted murder.

But before I delve into a few specifics, it's worth mentally zooming back to take in the larger picture under which ICE operates these days. Those agents within ICE who enforce Title 8 (the Immigration and Nationality Act) function within the administration of a chief executive and cabinet, including their own leaders throughout DHS, who make no secret of their disregard for the law and disdain for the agents doing the work.

The agents also function against the backdrop of a Congress that, despite its bluster, has done nothing to block the chief executive's usurpation of its constitutional lawmaking powers. It took 26 states suing the federal government to force even a partial halt to the innumerable programs and policies that stymie agents at their work; that halt was upheld last week by the Supreme Court, but it may only be temporary if the case reaches the Court again, as is possible.

Even the judiciary has had its hand in the pie, because agents operate against a tight timeline of six months in which to try to obtain repatriation documents from intransigent foreign governments and effect deportation, after which the Supreme Court's Zadvydas decision begins closing the window on their opportunity to keep even the worst offenders in detention pending removal.

Finally, let me note the irony implicit in an audit report about the release of a criminal alien having been requested by three Democratic members of Congress whose immigration scorecards are rated "F" and "F-" by NumbersUSA. They earned those abysmal grades for their steadfast opposition to immigration enforcement and advocacy of amnesty and other open borders propositions, including, irony of ironies, support for sanctuary — the flouting of federal law by state and local police who refuse to turn alien criminals over to ICE.

Take a look at this WTNH TV piece on the senators' opposition to a bill in Congress to put an end to sanctuary in the wake of the murder of Kate Steinle in San Francisco by an illegal alien, or at Rep. Courtney's votes on several immigration issues, including opposition to the sanctuary bill. Either their collective request for the OIG report was mere showboating for irate constituents, or their hypocrisy is boundless, or both.

Going back to the report: Among other things, we find that ICE tried three times during Jacques' 205 days in detention to obtain travel documents to repatriate him to Haiti, but found itself in an endless loop. The Haitian government refused to issue them because he had no national identity card and would not give the agents access to his birth certificate in order to establish his citizenship so that they could get the repatriation documents, because such records "are not public documents". What kind of insanity is this?

Sadly, when the OIG auditors asked ICE agents their opinion of Haiti's cooperativeness with removals generally, they got two entirely different responses. The headquarters staff assessed them as cooperative, whereas field agents indicated they were uncooperative. It's as if they were living in parallel but disparate universes. My own reaction would be to accept the assessment of field agents as more likely since they do the day-to-day work of trying to obtain documents from foreign governments to effect removals.

It is also unfortunate that ICE did not initiate steps to request that the Department of State (DOS) step in and, with a nudge or a shove, force the issue with the Haitian government. Here's what the OIG report has to say about that:

ERO [ICE's Enforcement and Removal Operations Division] did not elevate to the State Department Haiti's refusal to accept Jacques, a course of action provided for in ERO's removal guidelines. ERO officials believed that the Department of State would not intervene to encourage a foreign country to accept a violent offender like Jacques. ERO believed that the State Department's involvement was typically limited to aliens engaged in terrorism or human rights violations. Although we did not interview State Department officials about this, we have no basis to believe that ERO's experience in this area was unfounded.

I have no doubt at all that ERO's assessment was right on the mark. The problem is that, by not having made the attempt, they leave the State Department an open door to continue ignoring its responsibility to use its influence and power to require foreign governments to honor their obligation to accept the return of their citizens. State Department officials need only say, "Why, they never asked" and there is no response that can be made to that. The public would be surprised and disturbed to learn how often foreign governments quietly but effectively put on the brakes to avoid taking back their own nationals; particularly those of dubious character such as Jacques, who are of course the ones we as a society should most wish to be rid of expeditiously.

But the gems of the report are the eye-openers having to do with the realities of being an ICE ERO officer. Take, for instance, this observation:

The caseloads of Deportation Officers (DOs) in the field make personalized follow-up with the aliens under their supervision functionally impossible. At ERO Newark, for example, there are between three and four DOs assigned to approximately 37,000 released aliens. (Emphasis added.)

Or this one:

A DO has few tools available to supervise even an alien with a violent criminal history, such as Jacques. For example, ICE's Alternatives to Detention (ATD) Program places conditions on aliens released from custody, such as electronic bracelet monitoring and home visits. However, the program is only available for aliens who are removable in the foreseeable future. Additionally, the tools available in ATD are used as a means of ensuring a removable alien complies with court orders and does not flee, and the ATD Program is not aimed at deterring future criminal behavior.

This last observation is extremely notable, given that an entire cottage industry has grown up within the open-borders advocacy community arguing that in lieu of detention, release on recognizance or use of ATD should be the norm for all apprehended deportable aliens.

In sum, I found this report to be rare and refreshing, as oversight agency reports go, for both candor and balance in its assessments. The executive summary, if not the entire report, is a must-read for those who truly wish to gain some understanding about the difficult working environment in which ICE ERO officers and agents toil.