ICE Policy Harsher Than Publicly Promised or Admitted

Since the Trump administration has taken charge of Immigration and Customs Enforcement, there has been a 150% increase in arrests of non-criminal undocumented immigrants. It’s an increase that we have reported on (and protested) at length on our blog and through our law firm’s involvement in the legal community.

Today, a Pro Publica story reported on a February memo from Matthew Albence, the head of Enforcement and Removal Operations at ICE. This memo may serve as the root reason that ICE agents have been arresting non-dangerous immigrants with far less discretion than Obama-era guidelines allowed. In it, Albence tells 5,700 ICE agents that they “will take enforcement action against all removable aliens encountered in the course of their duties.”

In contrast, Obama-era guidelines allowed non-criminal arrests to occur only if the agent’s supervisor found that the arrest served an “important federal interest.” Now, agents seemingly are seemingly required to arrest any undocumented immigrants they encounter—regardless of context or criminal record.

This policy is what led to the arrest of Oscar Miller, who was arrested when he was about to pick up his newborn son following the baby’s surgery. Prior to the February memo, agents were able to use their best judgment regarding people with sick children. The policy has led to dozens of similar arrests, such as the detainment of three restaurant workers who were simply doing their job when ICE agents showed up for breakfast and spotted them. One man voluntarily showed up for a routine check-in at an ICE office and was arrested.

David Bier, an expert on immigration policy, commented that the memo explains ICE’s behavior over the last several months. It’s worth noting that Albence’s memo came the day after Department of Homeland Security Secretary John Kelly indicated that agents should show discretion regarding who they arrest—specifically, he said agents may “initiate enforcement actions,” but may not necessarily do so.

The softer language of Kelly’s statement implies that Albence’s memo oversteps the intent publicly stated by his direct superior.

Past ICE Directors Weigh In

John Sandweg, former acting director of ICE, said about the recent rash of arrests, “My concern is that what you end up doing is siphoning away resources that should go to public safety threats.” Our blog has previously commented along similar lines, noting that when you commit thousands of agents to arrest harmless undocumented immigrants throughout their day, it’s easier for public safety threats to slip through the cracks.

Sarah Saldana, the most recent former director of ICE, commented that policy oversteps are corrected by the White House and its appointed officials. If that’s what this memo is, then Secretary John Kelly would be the one to stop the ongoing arrests of innocent people. She also believes that the Trump administration is unlikely to do anything to change current immigration practices.

Non-Criminals Don't Deserve to Be Arrested

Proponents of tougher immigration policies seem to be operating under the assumption that if you break the immigration law, you "deserve" to be arrested and deported. In many cases, "tough on illegal immigration"-supporters equate immigration violations with criminal charges like DUI, assault, or other serious crimes.

Under our current law, an immigration violation is a civil violation, not a criminal violation. ICE exists to enforce immigration law, but widespread arrest of those with civil violations will simply drive people further underground, tear families apart, and take away hope for millions of undocumented immigrants. The real answer is to reform our immigration laws. We call on the President and Congress to take action to protect the most vulnerable people in our country.