Demands to “abolish ICE” raise a serious question of why the U.S. Immigration and Customs Enforcement exists in the first place. The idea makes no sense, as many Republicans observed when the bureau was created.
The George W. Bush administration created ICE in 2003. Concerned mainly with unifying intelligence, and believing that the 9/11 terrorist attacks were an intelligence failure, Congress let the administration choose how to move the old Immigration and Naturalization Service (INS) from the Department of Justice into the new Department of Homeland Security (DHS).
The Bush administration immediately frustrated this goal by creating two separate enforcement agencies within DHS. Each combined immigration and customs enforcement, which makes little sense since these involve very different agents with different expertise, using different techniques. The division supposedly is geographic: Customs and Border Protection (CBP) operates on the border and a hundred miles inland; ICE operates in the interior.
There was no explanation at the time, or later, of why we have two enforcement agencies. This decision has a rare distinction in the partisan world of Washington: Everybody hated it. The Heritage Foundation recommended merging the two. In 2005, House Republicans held hearings on immigration enforcement. Law enforcement experts criticized the creation of two uncoordinated agencies as exactly the problem that Congress hoped to solve by creating DHS. No administration witnesses defended the separation; they pledged closer coordination.
Ask yourself why the United States even has an agency for interior enforcement, and what it might do. Everyone can see why we need immigration staff at the border and airports. But why do we need an agency for enforcement away from the border? ICE claimed in the Bush and Obama administrations to target dangerous criminals. If you think about this, you realize it is ridiculous; ICE does not do criminal investigations. That would be the FBI or Drug Enforcement Administration (DEA) or Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
If ICE were supposed to identify noncitizens who have been convicted of crimes, it would consist of a computer and a few operatives. Instead, ICE has an annual budget of over $6 billion. Combine this with CBP, and the United States spends over $20 billion annually on immigration enforcement — more than the combined budgets of the FBI, DEA, ATF, Secret Service and the New York City Police Department.
In fact, ICE in its first 15 years has done one thing. It has sent agents to places where it thought there were people of Latin American ancestry. Then it asked for their papers. This is about all that ICE has done.
This means picking up and deporting people who, by definition, are minding their own business and causing no harm individually or as a group. Americans are not required to carry identity papers. But many Latinos expect their right to be in the United States to be challenged. This remains true for Latino people in the United States who are U.S. citizens from birth, or lawful immigrants. ICE detains thousands of U.S. citizens every year.
The locations at which Latinos are harassed vary from administration to administration. The Bush administration frequently raided workplaces, a technique it continued from the old INS. These raids required no particular warrant or individualized suspicion. The largest such raid occurred in the waning months of the Bush administration, on May 12, 2008, when 900 ICE agents and a civilian Black Hawk helicopter descended on the Postville, Iowa, plant of kosher meat packer Agriprocessors Inc. Hundreds of workers and managers were arrested and deported. Ten years on, families remain broken; the plant has been purchased but has difficulty recruiting labor; townspeople refer to the years before the raid as the “Golden Years.” Latina women throughout Iowa gave birth that year to babies with lower birth weight.
ICE in the Bush years also showed up at people’s homes, again without warrants. Few people realize they can deny entry to ICE agents. The Obama administration eliminated the home and factory raids. It made much of its enforcement priorities, which encouraged ICE officials to exercise discretion not to remove people who weren’t a threat. The Trump administration has made a big deal that it has no enforcement priorities and ICE agents now question Latino people in public places. Agents reportedly arrested a man driving his pregnant wife to the hospital for a scheduled Cesarean section, leaving her to get herself there alone.
ICE gathers information on Americans who have no connection to immigration. It keeps a national database of license plates captured by street or security cameras. The images are tagged with date, time and GPS location, permitting ICE to build profiles of where a given car has been over the years. ICE builds sham cell phone towers that capture cell phone locations. None of these ways of coming to ICE’s attention reflects danger to the U.S. public.
Immigration law functioned well for a century before it had a distinct bureau of interior enforcement, and would function better if it were abolished. It is staggering to think how strong the economy would be if the billions of dollars devoted to patrolling the border and tracking down unauthorized migrants instead were devoted to regularizing their status and integrating them into America.
Alan Hyde is a distinguished professor of law and Sidney Reitman Scholar at Rutgers University. An expert in labor, employment and immigration law, he has taught at Yale, Columbia, Toronto, New York University and the University of Michigan. He is the author of “Working in Silicon Valley” (2003) and “Bodies of Law” (1997).