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InAlienableDaily Dispatch
February 21, 2020

In the current conflict between ICE and local and state governments over enforcement of immigration laws, there is a parallel war over how the issue gets framed. For ICE and the Trump administration more generally, it goes something like this: Sanctuary cities are undermining enforcement by releasing “criminal aliens” into communities rather than handing them over to ICE. This forces ICE agents to then track and arrest people in field operations that are costly and potentially more dangerous. ICE is under resourced (ha!!) and thus has called upon Border Patrol for assistance - including the use of special force, BORTAC Units, now being deployed in cities around the country. It is all the fault of the cities and the states where democrats are in power, because democrats care more about supporting “criminal aliens” than citizens for some immutable reason that seems to require no further explanation on Fox News or Infowars.

There are multiple issues with this framework. First, people released from custody have already completed their sentences for whatever criminal offense they were charged with, or have been released on bail. They have in essence “done their time.” Every day these same localities release many times more U.S. citizens who have similarly done their time. Are immigrants more dangerous? Nope. No evidence to suggest they are. Indeed, as we have noted over and over again, the most common charges leading to criminal removals by ICE are traffic violations. Obviously, some people convicted of violent crimes get released as well - after their sentence is served! But this is far from the norm. Indeed, multiple that immigrants commit crimes at lower rates than U.S. born citizens.

Secondly, localities may be banned by local or state ordinances from holding people for ICE based on a “detainer,” which is an administrative hold. This is because, for example in Massachusetts, holding people without a proper judicial warrant violates state constitutions (probably violates the federal constitution, but this has not been tested). So these localities are not trying to make ICE’s job hard - they are following state law. 

In Boston, where BORTACs have been deployed as “,” ICE started releasing the names and criminal histories of some people when an ICE detainer has been denied. As noted in a local about these activities, “not all of the criminal histories mention actual criminal convictions.” Remember that on the west coast ICE was denied the authority to utilize its database for the issuance of detainers because 6% of detainers were mistakenly issued against citizens or authorized immigrants with no removal order in place. Using the same information in an effort to publicly shame local law enforcement for releasing people they are required to release is maybe just one more reason why local officials are not thrilled about working with ICE. In a about this new tactic, Acting Boston Field Office Director Todd M. Lyons of ICE’s Enforcement and Removal Operations (ERO) said, “The politicization of law enforcement at any level whether it be federal, state, or local does not make anyone safer.” Yeah….

Is ICE then forced to track and arrest people in field operations? Not exactly. Since 1996 immigrants who have been charged with any one, from a long list of crimes are eligible for removal, whether they are permanent residents or not. Most of these crimes are not violent offenses. There is an effort to get these 1996 laws overturned at the moment. For the time being, however, the law stands and its enforcement is subject to the priorities of the agencies in question, and the president. Which is to say, they are not consistently enforced. Instead, priorities become politicized, with large scale actions waxing and waning along with election cycles. This dynamic is not new to Trump by any means, but he has certainly done more than any other president to ratchet up conflict over immigration for political purposes. In the current environment conflict is what Trump wants; conflict that he can blame on sanctuary policies.

Two weeks ago, ICE agents in New York City shot while attempting to make an arrest. As one might expect, ICE’s version of events was not very consistent with witnesses: According to ICE, agents were just innocently doing their jobs (made more dangerous by New York City sanctuary policies) and were attacked. Witnesses note that ICE agents basically tackled Gaspar Avendaño-Hernandez, unannounced, while he was going back into his house, and when Diaz Cruz stepped up to help him, an agent immediately fired a gun, hitting Diaz Cruz in the hand and then face. ICE blamed the whole thing on New York City police refusing to hold Avendaño-Hernandez upon his release from jail. The danger here is that ICE is clearly militarizing its forces, and thus their enforcement actions could very well make communities far more dangerous. And if this happens, they will almost certainly blame localities - they already are - not their own over the top tactics. Worth noting that Diaz Cruz is now suing ICE for shooting him in the face: "This was not just an attack against me, but also an attack against the entire Latino community in the United States," . "Our community must come together to protest ICE's violence."

When states restrict where ICE can arrest people - such as showing up at courthouses, schools or churches, this is a desire to keep the communities safer! These places, especially schools and churches, have been generally off limits for many years by ICE’s own operating procedures. This changed in the from John Kelly, when he was director of Homeland Security in early 2017.  Escalating arrests in these areas is again a political move - it instills fear, which, in turn, makes these communities less safe. If people fear being detained by ICE, they may not show up for court as witnesses, and will avoid the police all together. Indeed, sanctuary policies are designed to make communities safer in the face of expanded federal enforcement.

This week ICE ignored a California law that requires that a judicial warrant be presented before ICE can detain someone at a courthouse or other state facilities. On Wednesday ICE agents detained two people, removing them from a courthouse in San Francisco. One man was standing in a hallway awaiting a hearing when ICE agents arrested him. “California's law doesn't supersede federal law and ‘will not govern the conduct of federal officers acting pursuant to duly-enacted laws passed by Congress that provide the authority to make administrative arrests of removable aliens inside the United States.’” This assertion will almost certainly end up in court. Again, the entire frame here is wrong. If the person in question is a danger, get a judicial warrant. If they are not a danger sufficient to get a judicial warrant, especially given all of ICE’s other problems with keeping track of data and people, there is no reason for states and localities to just hand over residents to the federal government, or allow them to be swept up for the sake of Trump trying to appear tough with “liberal” California. In response, Sonoma County District Attorney Jill Ravitch, Public Defender Kathleen Pozzi , "It's now going to put total fear in the community...People aren't going to come to court. Victims will refuse to show up. Witnesses will refuse to show up … cases will have to get dismissed."

The one consistent theme in these enforcement actions is the effort to generate controversy, generate fear, and grab headlines. Protecting communities is not what Trump is trying to do. His administration is undermining protection and safeguards at the community level everyday under a grossly exaggerated narrative of criminality and immigration.