Immigration Law

Once Relatively Obscure, ICE Becomes a Lightning Rod in Immigration Debate

Muzaffar Chishti and Jessica Bolter, MPI, Aug. 22, 2018 - "Critics of the Trump administration’s immigration policies have seized on U.S. Immigration and Customs Enforcement (ICE) as the main target of their ire in recent months, with the “Abolish ICE” campaign catching fire seemingly overnight. Now a lightning rod for every perceived immigration-related outrage, the agency is being condemned for actions—such as the separation of families at the Southwest border—taken by other government agencies inside and outside the Department of Homeland Security (DHS).

While some of the sharpest liberal voices calling for ICE’s abolition have calmed, in part amid a recognition by leading Democratic strategists that the campaign could backfire, the agency has clearly been thrust into the center of a polarized national narrative in an unprecedented way. Attacked in some circles, the agency is being lionized elsewhere. Vice President Mike Pence recently told ICE agents they were “American heroes.” And eager to capitalize on a wedge issue important to its base, the White House on August 20 held a “Salute to the Heroes” of ICE and U.S. Customs and Border Protection, which like ICE is a DHS agency.

Some inside ICE who work on the agency’s substantial portfolio of nonimmigration enforcement missions, ranging from the targeting of transnational drug-trafficking networks to combating trade fraud and money laundering, fear the polarization will negatively affect their work.

Part of the heightened attention is the byproduct of revved-up immigration enforcement tactics ordered by an administration that has placed immigration at the center of its domestic policy agenda. And part is of ICE’s own creation. For example, Tom Homan, a career DHS official appointed to head ICE at the beginning of the Trump administration, led its transformation into the unabashed public face of immigration enforcement. Aligning himself with an administration that pledged to “take the shackles off ICE,” Homan famously told unauthorized immigrants: “You should look over your shoulder, and you need to be worried.” He also eagerly associated himself with administration efforts to crack down on “sanctuary” jurisdictions, calling on the Justice Department to criminally charge elected officials in locations that limit their cooperation with ICE.

The Creation of an Image: From Low-Profile Agency to #AbolishICE

With the creation of DHS in 2003, ICE was cobbled together from deportation and investigations officers with the former U.S. Immigration and Naturalization Service (INS) and investigations officers from the U.S. Customs Service at the Treasury Department. The deportation officers became ICE’s Enforcement and Removal Operations (ERO), and the investigations and Customs officers became the agency’s investigative component, Homeland Security Investigations (HSI).  

Though some of the 22 agencies that came together to form DHS have not fared as well under the new structure, ICE has seen its manpower and budget swell, fashioning it into an agency that is far more omnipresent than it once was.

ICE's Structure and Mission

ICE is the first-ever agency dedicated exclusively to immigration enforcement. Before its creation, INS encompassed both the enforcement side (border and interior, including detention and deportations) and service mission (adjudicating immigration applications) of the immigration system. When INS was dissolved, these functions were separated three-fold. Service officers became part of U.S. Citizenship and Immigration Services (USCIS) in the new DHS, Border Patrol agents headed to the new CBP, and ICE was charged with interior enforcement—detention, deportation, and criminal investigations. ICE thus became siloed from the experiences and perspectives that come from serving immigrants and prospective immigrants.

Further, other federal law enforcement officers—including the Customs officers who now formed HSI—looked down on former INS deportation officers as coming from an ineffective and inefficient agency. Differing pay schedules and enforcement cultures made for an uneasy fit. Based on a 2017 survey of federal employees, ICE came in 288th out of 339 government agencies when ranked by “best place” to work. DHS and ICE leaders have long searched for ways to boost employee morale, such as stressing the significance and value of every immigration arrest made, even when the arrestee is a noncriminal or a long-term U.S. resident.

The evolution of ICE’s mission—and the commensurate resources it has been given to execute its responsibilities—has also contributed to its polarizing image. In 2004, its stated mission was “to prevent acts of terrorism by targeting the people, money, and materials that support terrorist and criminal activities.” Today, the agency’s mission is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” As the mission has shifted, ICE’s resources—particularly those allotted for ERO—have grown. In fiscal 2004, the first year of appropriations after DHS was created, Congress provided $3.5 billion to ICE as a whole. By 2018, ERO alone received more than that: $4.1 billion for enforcement and removal, representing 58 percent of ICE’s total budget of $7.1 billion.

ICE Politics

As the immigration debate has grown more polarized over ICE’s lifespan, the agency has become politicized—particularly during the Obama and Trump administrations—in a way that other government agencies have avoided. In 2011, after ICE national leadership directed agents to narrow their enforcement focus, the union representing ICE officers released a statement blasting the Obama administration, saying “the administration protects foreign nationals illegally in the U.S. but does nothing for our employees.” In 2012, a group of ICE agents sued the Obama administration for prohibiting them from arresting and removing those covered under the Deferred Action for Childhood Arrivals (DACA) program, which protects from deportation some unauthorized immigrants brought to the country as minors.

In 2016 the ICE union endorsed then-candidate Donald Trump, after 95 percent of its members voted in favor of endorsement. During Trump’s presidency, ICE has repeatedly waded into political controversies. For example, in February 2018, then-Acting ICE Director Homan harshly criticized the Democratic mayor of Oakland for her warning to the community about an impending ICE raid. Mayor Libby Schaaf’s action was equivalent to “a gang lookout yelling 'police' when a police cruiser comes in the neighborhood,” Homan charged. And a review of the press releases ICE issues, which once used to be sober announcements of operations and arrests, now come with charged criticism of (mostly Democratic) sanctuary cities. For example, a July 2018 statement read: “Efforts by local NYC politicians have shielded removable criminal aliens from immigration enforcement and created another magnet for more illegal immigration, all at the expense of the safety and security of the very people it purports to protect.”

By entering the national conversation, deliberately or not, ICE has engendered strongly polarized public opinion. A Pew Research Center poll conducted in July found some 72 percent of respondents who were Democrats or Democrat-leaning had an unfavorable view of ICE, while the exact reverse was true for Republicans and those leaning Republican. Strikingly, just 8 percent of Democrats and 7 percent of Republicans said they “didn’t know” what they thought of ICE. In a poll conducted by Politico and Morning Consult the same month, 43 percent of Democrats said they believed the agency should be abolished, with just 34 percent wanting to keep it. Meanwhile, 79 percent of Republicans and 54 percent of independents wanted to retain ICE.

ICE Policies

ICE’s policies, which reflect its politics, have also contributed to its emergence as a target for Trump critics, even as the agency is getting plaudits in other circles. Executive orders the President signed in his first week in office directed the agency not to exempt any class of unauthorized immigrants from enforcement and revoked the prosecutorial discretion guidelines that were first created in 1976 and updated over time. Today, a much wider group of noncitizens is subject to arrest and removal, and ICE no longer gives much consideration to factors such as long-term U.S. residence or other equities such as having U.S.-citizen children.

In addition, while ICE honors long-standing policy of forgoing enforcement at “sensitive locations” such as churches, schools, and hospitals, it has been arresting people in close vicinity and has also increased operations inside courthouses, to the consternation of many judges. ICE also has targeted “sanctuary” cities for large-scale enforcement operations and increasingly arrested people at ICE check-ins, to which many removable immigrants had been routinely reporting without apprehension for years.

Of course, ICE’s mission will always be unpopular among some; the families and friends of those arrested and removed will unfailingly protest the outcomes of its actions, especially since almost 60 percent of today’s unauthorized immigrants have lived in the United States for a decade or more. However, as immigration enforcement has grown more indiscriminate, the agency has become more controversial. The growing polarization apparently motivated 19 HSI agents, in an extraordinary move, to write a letter to the Homeland Security Secretary in June asking for their office to be separated from ERO. “The perception of HSI's investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement,” they wrote.

Growing Resistance

In many ways, the resistance to ICE began in the Obama administration, as an information-sharing program known as Secure Communities hit its full stride and funneled ever more people into the deportation pipeline. Secure Communities, which in 2013 reached full rollout across the nation’s prisons, jails, and police stations, links DHS and FBI databases to share information about criminal and immigration violations committed by anyone fingerprinted. ICE uses the program to allow it to issue detainers requesting that local jurisdictions hold detainees it suspects are removable. Many jurisdictions stopped honoring these detainers in a bid to protect their noncitizen populations, including those arrested for minor offenses, from what they saw as excessive federal enforcement.

Before long a new “sanctuary” movement had emerged, in which localities and states stopped cooperating with ERO officers—and, in some cases, HSI officers as well. In total, about 30 state laws restricting such cooperation have been enacted since 2007, most in 2013 or later. About 300 local jurisdictions, including major cities such as New York, Chicago, Philadelphia, and Seattle, have also enacted policies limiting cooperation with ICE. These range from refusing to notify ICE when noncitizens are released from state or local detention, to denying ICE officers access to law enforcement databases that they might use to identify noncitizens who have been arrested. Such policies have pitted mostly Democratic-led cities and states against ICE.

A New Chapter in Resistance

While ICE’s mission and policies have clearly contributed to public perception of the agency, criticism has become sharper and more partisan. Since the 2016 election, the Democratic base and some who consider themselves farther to the left have vocally opposed the Trump administration’s immigration policies as cruel—making ICE an easy and obvious target not just for defunding or restructuring, but for total dissolution. In 2018, the #AbolishICE movement, which first gained mainstream traction following a March op-ed in The Nation by activist Sean McElwee, grew from a Twitter hashtag to a protest slogan and even made its way onto the platforms of major Democratic candidates.

Reports suggest that those who support abolishing ICE are not always clear about what exactly they are calling for, as much of their opposition focuses on the perceived inhumanity of CBP actions and Justice Department prosecution policies that led to family separations at the border—activities outside ICE’s jurisdiction. Nor have they articulated who would perform the nonimmigration functions of ICE, such as investigating terrorism, drug smuggling, child exploitation, human trafficking, cybercrimes, and financial crimes. It is also unclear which, if any, immigration enforcement functions they see as necessary—and who they think should perform those.

Carrying the #AbolishICE Banner

In spring and summer 2018, as family separations at the U.S.-Mexico border made international headlines, several progressive candidates won Democratic primaries after explicitly campaigning on abolishing ICE. Most prominently, Alexandria Ocasio-Cortez, a candidate for New York’s 14th congressional district, defeated House Democratic leadership member Joe Crowley—and promised that her “first priority” in Congress would be to abolish ICE.

Thus, the issue turned into a litmus test for many Democratic candidates. Possible presidential contenders took up the cry next: first, Senators Kirsten Gillibrand (NY) and Elizabeth Warren (MA), and eventually Bernie Sanders (VT), who initially refused to call for ICE’s dissolution. Gillibrand also seemed to conflate ICE’s responsibilities with those of CBP, saying, “When we flip the House and flip the Senate, I think the first thing we should do is deal with the children who are being separated from their families at the border. I think we should get rid of ICE.”

Others, including national party leaders such as Senate Democratic Leader Chuck Schumer and House Minority Leader Nancy Pelosi and potential 2020 presidential candidates Kamala Harris (CA) and Cory Booker (NJ), are trying to walk a tightrope by urging an overhaul of ICE without calling for its abolishment. With some Democrats mindful the stance could hand Republicans a tool to whip up the conservative base and label Democrats soft on crime, the momentum to #AbolishICE has lost some steam.

Some Democrats have also stood against #AbolishICE from the beginning. Leaked Congressional Hispanic Caucus talking points from late June acknowledged that ICE’s responsibilities stretch beyond civil immigration enforcement and argued that ICE itself is not the problem; rather, the real problem is a lack of oversight and accountability, as well as a broken immigration system. Recently, the Bay Area News Group asked the Democratic candidates in the ten most competitive U.S. House races in California if they supported dissolving ICE; none did.

With Democrats divided on #AbolishICE, it may become easier for Republicans to claim they are pushing for the most extreme option: open borders. “Leading members of the Democrat Party have even launched a campaign to abolish ICE—in other words, they want to abolish America's borders,” Trump said during the “Salute to the Heroes” event.

ICE in the Middle

Amid widespread condemnation of the family separations, the backlash against ICE has spread beyond politics. Employees and students have mounted campaigns asking companies and schools to cancel contracts with ICE. McKinsey, a leading global consulting company, ended its contracts with ICE after widespread employee (and public) outrage. Others, including Microsoft and Deloitte, have refused to drop their contracts with ICE, saying their work did not contribute to the separation of families. At the most extreme end, a Massachusetts man was arrested after posting on Twitter in July that he would pay $500 to anyone who kills an ICE agent.

GOP Pushback

Republicans have found ways to use #AbolishICE for their own purposes, perhaps most visibly with the White House salute. In July, House Republicans passed a resolution supporting ICE, in response to a bill by Rep. Mark Pocan (D-WI) to abolish it. Senate Majority Leader Mitch McConnell (R-KY) visited an ICE office in July and then issued a sharp statement: “According to these far-left groups, the ‘threat to democracy’ is not the violent criminals who are illegally present in our country—but rather the brave law enforcement officers who volunteer to take them on.”

As attitudes toward ICE become a barometer of positions on immigration as a whole, reaching workable policy solutions that could have meaningful impact becomes even more difficult—and campaigns such as #AbolishICE will not help bridge the divide.