President Trump has made it known that he is no fan of the judiciary. Only one month into the Trump Administration, it appears that ICE is taking its cues from the president. Judging from recent actions, the nation’s lead immigration law enforcement agency seems intent on scaring migrants away from legal processes.
In the course of one week, four incidents, seemingly unrelated, might make a reasonable observer think twice about engaging with immigration law authorities. On February 8, ICE arrested several men across the street from a Virginia church where they had taken shelter from the cold. The following day, undercover ICE agents arrested a woman at an El Paso, Texas courthouse as she sought protection from an abusive partner. Reports claim that the woman’s abusive boyfriend might have tipped off ICE to her presence. On February 10, ICE arrested a twenty-three-year-old DACA beneficiary brought to the United States as a child and put him into removal proceedings. Justice Department lawyers told a federal judge that his DACA was “automatically terminated upon ICE issuing him a Notice to Appear,” the document that formally initiates removal proceedings in immigration court. They admit that this young man, Daniel Ramirez Medina, was simply in the right place at the wrong time: his father’s home when ICE came looking for his father. On February 15, ICE detained another DACA beneficiary in San Antonio. This time it was nineteen-year-old Josue Romero who had been arrested on possession of marijuana charges—the same activity occurring as I type in my Denver neighborhood under a bright “Open” sign. Similar reports continue popping up throughout the country. Only yesterday ICE arrested twenty-two-year-old Daniela Vargas as she left a press conference at which she described her fear of deportation. Vargas is a past DACA beneficiary whose renewal application is currently pending.
For years, ICE and its predecessor, the Immigration and Naturalization Service, took pains to avoid enforcement actions near courthouses, churches, schools, and other “sensitive locations.” The current ICE policy regarding sensitive locations instructs ICE officers to avoid enforcement actions that “could reasonably be viewed as being at or near a sensitive location.” The agency’s goal, the policy goes on, is to avoid enforcement actions that “could reasonably be viewed as causing significant disruption to the normal operations of the sensitive location.” ICE’s arrest of homeless men seeking warmth at a Virginia church fits this description perfectly. The pastor told a local reporter that, in his view, “They were clearly targeting the church.” To ICE, however, there was nothing problematic about the arrests because they happened across the street from the church. Apparently that short distance is all the difference between being “at or near” the church and not being at or near the church.
To be sure, the current ICE policy regarding sensitive locations doesn’t explicitly list courthouses, but it does acknowledge that there might be other places where a countervailing interest takes precedence over immigration enforcement actions. It’s easy to see the important interests that arise in schools and churches—education and religious expression. It is similarly straightforward to identify the critical role that courthouses occupy. All of us benefit from efficient and effective judicial proceedings. The more that we all trust in and rely on courts to adjudicate disputes, the less likely that any one of us will be to take anger into our hands. Law and legal process, in effect, is an antidote to mob violence. Arresting migrants at courthouses sends a chill through immigrant communities. It marks these locations as places of risk, not sites where people can seek recourse in the measured discourse of legal argumentation.
Between arrests across the street from a church and arrests inside a courthouse, ICE seems to be signaling the erosion of its sensitive locations policy. What good is the policy as written, after all, if ICE agents are violating its spirit and letter?
Similarly, ICE’s decision to detain two DACA recipients raises the possibility of shutting down the program in fact if not in law. Since the moment that the election results became clear, young people who do or might qualify for DACA have wondered whether the risk of exposing themselves to the government is outweighed by the benefit of a temporary reprieve from immigration enforcement actions. By arresting two DACA recipients, ICE suggests that what we thought of as DACA’s benefit might not be true. If having DACA doesn’t immunize you from arrest, then is it worth the risk of giving the government critical information about yourself?
The Justice Department’s explanation in a brief filed with the U.S. District Court in Seattle in Medina’s case is instructive. There the federal government’s attorneys told the judge that Medina’s DACA “automatically terminated upon ICE issuing him a Notice to Appear,” the charging document that formally initiates removal proceedings in immigration court. In support of this automatic termination, the brief cited to a frequently asked questions section of the U.S. Citizenship and Immigration Services website. USCIS advises, “DACA is an exercise of prosecutorial discretion and deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.” For the Justice Department lawyers to tell the federal court that DHS interprets that language to mean that any previously unspecified event can trigger automatic termination of DACA, is there any limiting principle? It seems like the government’s answer is no. Clearly it is the government’s prerogative to take this troubling position (and, as an aside, one that might violate the Due Process Clause). But if that is the government’s position, are young people going to keep participating in DACA? Or is this the Trump Administration’s way of killing DACA without suffering the political blowback that would come from repealing it explicitly?
Whatever might be going on inside the White House and DHS—and, as we experienced when Sean Spicer scolded reporters for not having asked about the National Guard deployment memo even though reporters had asked, it’s often unclear whether the people inside the White House and DHS even know what’s going on there—all of these incidents point in the same direction: a disincentive to trust in and rely on law and legal processes. Instead, they suggest that immigration enforcement practices are guided by an arbitrariness that resembles the President’s unpredictability more than the clarity of staid legality. I’ll acknowledge that the former is more likely to lead to an entertaining highlight reel, but law is much more essential to our democracy than is keeping people on the edge of their seats.