I invited two agents from ICE’s Newark, New Jersey Field Office to speak to my cross-listed Philosophy/Criminal Justice class today. The topic? “Enforcement and Removal Operations 101,” or less euphemistically put, “Deporting People in the Name of the Law: An Introduction.”
The two agents more or less made the arguments you would expect agents from ICE to make: ICE is empowered to search, seize, detain, and deport those who violate the nation’s immigration laws; some or many of these illegals are bad actors, whether of a criminal or terrorist variety; and though the media like to focus on the most problematic or controversial actions that ICE undertakes, media coverage doesn’t adequately explain the legal rationale or ICE’s enforcement/deportation operations, or give a balanced account of what it is that the average ICE agent does on a daily, weekly, or monthly basis.
One of the agents making the presentation had done supervisory work at a detention facility at the border, and insisted that at least some of what Trump et al have said about members of the migrant caravan is true: the caravan includes gang members (he said), as well as Middle Eastern terrorists, specifically Syrian ones. Further (he claimed), media references to “women and children” as innocent victims are misleading; women and older teenagers prey on our sympathy for family unification, but often, or at least sometimes, use that as a cover for criminal activity. (I’m reporting here, not endorsing or rejecting.)
In listening to the agents making their case, I couldn’t help thinking how much outrage we waste on the condemnation of law enforcement when the underlying legal problems we face are legislative. Law enforcement is, after all, just the tail end, if only the most visible end, of a process that begins–or fails to begin–in Congress. The problem with immigration law in the United States is not primarily how it’s enforced, but what it says. As long as it says crazy things, it will be enforced in crazy ways, and those who enforce it will have the somewhat justifiable excuse that they’re enforcing it as written because it says what it says.
On that very subject: if you want to read an enormously informative–if sometimes quirky and opinionated–guide to immigration law, you couldn’t do better than to set a few hours aside to read and digest Jacques Delacroix’s longform essay, “Legal Immigration into the United States,” at Notes on Liberty. I’ve had my quarrels with Delacroix in the recent past, and don’t agree with everything he says in this essay, but have to admit that his essay doubled or tripled my knowledge on the subject of immigration law, is clear and entertainingly written, and is obviously the product of tremendous learning and personal experience. I highly recommend it.
This Thursday, to balance the appearance by ICE, I’ve invited Joyce Phipps, an immigration attorney at Casa de Esperanza, a non-profit legal aid organization, to discuss her work defending the rights of immigrants, refugees, and asylees in New Jersey. And next week, we’ll be doing an in-class video chat with Maria Lopez-Delgado, a former student of mine who works for the Battered Immigrant Project of Legal Aid of North Carolina. But it occurs to me that I should really be collaring some legislators and asking them why it’s been decades since they’ve enacted real immigration reform. Unfortunately, I only teach this course once a year, and at this point, I’m out of time. Next year, then: we’ll see what the Blue Wave has to show for itself.
I had to chuckle at one thing, however. People talk about the “rampant political correctness” of our universities, but immediately after the ICE talk, my bright-eyed and bushy-tailed pre-law and criminal justice students lined up to have some face time with the friendly agents from ICE. What did they want? To protest what ICE was doing at the border? To express their outrage over family separation and the detention of children? No, not really. They wanted to know how to get a job with ICE. Because as we all know, federal jobs pay well and offer excellent benefits. And maybe offer other, intrinsically-motivating perks besides. Think of the rewards of another day at work doing deportations.
The behavior of politically correct “snowflakes”? Or career-wise ICE chips? I leave it as an exercise in political meteorology.
“I couldn’t help thinking how much outrage we waste on the condemnation of law enforcement when the underlying legal problems we face are legislative. Law enforcement is, after all, just the tail end, if only the most visible end, of a process that begins–or fails to begin–in Congress.”
Well, yes and no. Yes, in that ICE takes its marching orders ultimately from what Congress dictates. But in a more fundamental sense, no, in that it’s the existence of armed thugs willing to enforce what Congress dictates that MAKES Congress a Congress rather than what it would otherwise be — namely, a bunch of harmless loonies shouting their opinions at passersby.
I guess I’m describing the teleological cause, and you’re describing the efficient cause, of state action. Teleological cause: legislation sets the ends; executive power serves as the means. Efficient cause: there is no state power but for its effectuation by people with weaponized force.
I’m less inclined than you to describe ICE, or the executive branch, as nothing but thugs tout court. I would say that they do some things that need doing and that few of the people reading this blog would want to do. I do think that would-be immigrants need to be vetted, and that criminals, terrorists, and people with serious communicable diseases need to be excluded. (Contrary to what people sometimes say, there is no double standard here: we do this both domestically and for in-migrants; it’s just that the systems involved are different. But the aims are the same.) Certainly people who show up at the border with a bunch of children in tow falsely claiming that the children are theirs, have to be excluded. If you discover upon interview that one in-migrating spouse is physically abusing the other, the options presented to the accused abuser should either be: arrest upon entry, or deportation to avoid arrest. And so on.
Incidentally, the immigration rights attorney I invited to campus yesterday mentioned that domestic violence is a real problem within the Latin American immigrant community she represents, and that she represents victims but not abusers, i.e., accused abusers where the accusation is credible. You could call that a policy of throwing accused abusers to the immigration enforcement wolves, but I see the rationale, and in a sense it is functionally equivalent to deporting them through a border interview: it has the same ultimate aim and effect. On Tuesday, I’m having a former student who’s a legal aid attorney discuss the issue of domestic abuse in the immigration context. I don’t know the sociology here, but I am inclined to think that domestic abuse is a bigger problem in immigrant households than is commonly admitted or discussed, arising from the patriarchal character of the countries of origin and the stresses of immigration itself.
Anyway, someone’s got to do that unpleasant job, so I wouldn’t call the job itself thuggery. As I see it, the question is the extent to which ICE is doing that job, and the extent to which it is doing some other, unnecessary/unjustified job or set of them. The analogy I’ve used (on your blog, actually) is that of security at a large sports stadium. Whether the stadium is publicly or privately owned, security is a necessity, and requires a check of some sort on entry.
I had my students do a bunch of readings on whether or not ICE should be abolished (scroll down to 11/29).
I’m not sure, but there’s a good case for it.
A slightly different issue: in order to call ICE “thugs,” we have to stretch the concept of a “thug” to include the ordinary desire for a government job. My post was in part a sardonic account of my students’ avid desire to work for ICE despite what it does. I think it’s a substantive rather than frivolous or “semantic” issue whether we regard that as thuggery or as the gateway to thuggery. A “thug” is (I think) someone who enjoys the infliction of violence, partly for its own sake. But think instead of someone who grows up in a rough urban environment in an American city, wants a way out, gets on USAJOBS.gov (as she’s counseled to do by the university’s Career Services people), and sees an opening in ICE’s Newark Field Office, Dept of Enforcement and Removal Operations: good salary, pension in 20 years, job security.
It looks like the surest way out a neighborhood spatially mismatched to the job market. In New Jersey, some of the best jobs are located in rural areas 30 or 40 miles from an urban center, and (almost by design) impossible to get to by mass transit. Those jobs get snatched up by Trump supporters who then scream about the loss of rural space in central Jersey, i.e., people who live in towns whose tax base consists of large corporations on huge tracts of land, who then demand that the rest of the land should be “Preserved Farmland” or “Open Space.” If I lived in a bad urban neighborhood and saw that, I might snatch at the opportunity to work for ICE. Once I did, of course, they would, Dracula-like, pull me into the vortex of enforcement and removal operations. But I wouldn’t call the initial impulse thuggery. In fact, I’m not sure how far “thuggery” goes as an explanatory device.
My own way of coping with this is to draw some lines about what I will promote in my official capacity as pre-law adviser or faculty writer of letters of recommendation. I won’t write letters for people who want to go into the military. I don’t think I would write letters for people who want to go into ICE. Actually, there’s an ambiguity there I need to resolve: should I refuse to write a letter of recommendation specifically for employment in ICE, or refuse to write any letters for anyone who wants employment in ICE, regardless of whatever else they want? It’s an interesting question whether line-drawing of this kind would get me fired. This suggests that it might:
There may be some legislative problems, but enforcement is more of a problem than most think. With the shift in policies in this administration and how that policy is carried out, the negative effects are widespread, without a whole lot of change in legislation.
The ICE agents who spoke to my class on Tuesday mentioned the differences between the Obama and Trump Administrations, but consciously and as a matter of deliberate rhetorical strategy stressed the continuities. So we probably got a somewhat one-sided presentation. Still, in terms of sheer numbers, deportations reached an all-time high under Obama (in 2012), and the Obama precedent set the stage for Trump.
But my deeper point is that even if we grant that Trump is worse than Obama, the underlying explanation for the worst features of both cases is the structure of immigration law as a matter of legislative fact. Given the structure of US immigration law, the whole idea of a “legal” mode of entry into the United States–one that undocumented migrants are “violating”–is for, ordinary migrants, pretty close to a fraud. The reason why ordinary migrants end up being “illegal” is that there is no legal pathway for them to become citizens. It’s not that there is some procedure in place for processing them that they are “violating.” It’s the other way around: they are violating immigration law because there is no legal procedure for processing the vast bulk of intuitively obvious candidates for immigration. Unless you come in under family unification, an employer sponsorship, refugee status, aslyee status, or through a diversity lottery, U.S. immigration law basically acts as though you don’t exist.
People have this delusional belief that immigration to the United States is like applying for a driver’s license or a marriage license or a permit to put a boiler in your basement: you apply, and if you’re “legit,” you eventually get accepted. You just have to wait your turn. But the situation is more like: imagine that for the bulk of 18 year olds, there was no legal way to get a driver’s license. To get one, you have to have a relative in the DMV, or your Fortune 500 employer has to write you a letter of recommendation, or ISIS has to want to kill you. Now imagine that lots of people were getting illegal driver’s licenses, and what we spent our time talking about was outrage over their illegality or outrage over the enforcement of the license laws. Both sorts of outrage would miss the forest for the trees.
The same thing is true in the immigration case. The situation we’re in is the inevitable result of the total irrationality of our immigration laws. That explains why enforcement is the way it is, and why Trump has the freedom to intensify what Obama got started. I don’t dispute that Trump is worse, maybe a lot worse, than Obama. But his policies didn’t come from out of nowhere, or start with him.
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This very issue came up during the agents’ presentation, but that was a day before the promulgation of these new rules. It was also something that came up when Gurbir Grewal spoke at Felician last year. We pressed him hard on it, but found him a bit cagey at the time (he was a county prosecutor, not Attorney General). I guess he was keeping his own counsel, so to speak:
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