A common concern is that if the ERO deportation force is defunded, “violent criminals” will run amok. For example, President Donald Trump claimed at a rally, “Democrats want to abolish ICE. They want to turn America into one giant sanctuary city for violent criminals.”10

Transnational criminal enterprises that traffic in drugs, guns, and human beings exist, and it is well within the police powers of the state—and federal government—to intervene and apprehend individuals engaged in those crimes. But HSI is the agency responsible for investigating and prosecuting criminal enterprises, not the ERO deportation force.

By contrast, the ERO deportation force apprehends people without any criminal convictions, or people who have been convicted for a crime that was minor or committed years ago, or who have demonstrated rehabilitation. During the first two months of Trump’s administration, one third of non-citizens arrested by the ERO deportation force had no criminal conviction.11 But just as important, having a prior criminal conviction does not mean that a person is a present danger to society. By ICE’s own statistics, 1% or fewer of those swept up in ERO deportation force arrests had prior convcitions for the serious crimes of “[s]exual assault, kidnapping and homicide.”12 Rather, the vast majority of those arrested and deported by the ERO were convicted of more minor offenses relating to “driving under the influence, drugs, other traffic offenses and immigration violations.”13

In the case of a present threat to public safety—for example, an active shooter or serial sexual predator—the local police department and, in some cases, the FBI would be responsible for responding to the situation, investigating the crime, and arresting the person suspected of committing the crime. The person arrested for the crime would then be held in custody or released on bail by the state or federal criminal court, depending on where the charges are filed. The ERO is not involved in any way in the investigation of the crime or the detention of those accused of crimes pending criminal prosecution. The people whom the ERO targets are not the “dangerous” criminals that proponents of ICE would have the public believe. Examples of the so-called “dangerous” people swept up by the ERO deportation force include a doctor and green card holder who had two misdemeanors that were twenty-six years old,14 a business owner who volunteered to sift through the rubble of 9/11 who had an old drug offense,15 and countless combat veterans who were convicted of drug crimes or offenses that criminal courts often did not punish with much or even any prison time.16

Supporters of ICE argue that we need the ERO deportation force to keep us safe. But the ERO deportation force does not go after people who commit serious crimes, nor does it target people who pose a present danger to our communities. Defunding the ERO will have no negative impact on our safety.

SECOND, the MS-13 gang is not an immigration problem, and it is not an actual nationwide threat.

President Trump repeatedly contends that ICE, and the ERO deportation force, is needed to protect Americans from the MS-13 criminal gang. This is false.17

To understand the significance of the MS-13 gang—a transnational criminal gang operating primarily in Central America and Los Angeles18—it is important to understand the gang’s origins and contemporary functions. Ironically, unintended consequences from U.S. actions created the perfect storm for the MS-13 gang to become as powerful as it is. Stated another way, “MS-13 was a gang fueled by deportation, not immigration.”19

First, the Reagan administration’s foreign policy in the 1980s destabilized the Salvadoran government by supporting a right-wing military dictatorship to prevent the Marxist opposition from gaining power.20 Second, in the 1990s, the Clinton administration’s fast-track deportation program targeted members of the MS-13 gang, deporting 31,000 members of the gang to Central America and 12,000 members to El Salvador alone.21 While the United States has a functioning criminal justice system that can arrest, prosecute, and incarcerate members of gangs who commit crimes,22 El Salvador, Honduras, and Guatemala are plagued by corruption and lack the resources and ability to apprehend sophisticated criminal enterprises. According to WOLA, a research organization focusing on human rights in the Americas, “Gang members deported from Los Angeles took advantage of these conditions and leveraged their professional and unified structure to ramp up recruitment, consolidate small local youth gangs into more violent and more organized groups, and expand into the street gangs that control neighborhoods throughout Central America today.”23 One-sixth of the El Salvadoran population is believed to be involved in a criminal gang, resulting in El Salvador having the highest homicide rate in the world and with the MS-13 operating with impunity.24

As much as the MS-13 gang is a serious threat to those living in Central America,25 the gang is not a meaningful threat to those in the United States. In the United States, the MS-13 gang numbers 10,000 members, which is “less than 1 percent of the approximately 1.4 million gang members [in the United States] according to F.B.I. estimates.”26 The gang is not a national scourge, but is concentrated in Los Angeles, Long Island, and outside Washington D.C.27

In addition, the vast majority of the MS-13 gang’s members in the United States are U.S. citizens.28 About 70% of the gang members who ICE arrested in two major raids in 2016 and 2017 were in fact U.S. citizens.29 These raids, when undertaken by ICE, were wasted efforts because the ERO deportation force has no authority to lawfully arrest or detain U.S. citizens.30 Rather, it is local police forces and the FBI who are responsible for investigating and arresting citizens who are affiliated with gangs for their crimes.31

For fiscal year 2018, ICE’s total budget was 8.6 billion dollars.32 If ICE’s role were to apprehend MS-13 gang members, as President Trump repeatedly claims, tax payer dollars would be better spent elsewhere. From 2012 to 2017, ICE deported only 38 MS-13 gang members who had been arrested for murder (compared to 169 citizen MS-13 members who were arrested for murder in that time).33 That means ICE deports on average fewer than eight non-citizens who are members of the MS-13 gang each year for committing murder.

Keep in mind that the ERO deportation force is further limited to arresting and deporting MS-13 gang members—and all people for that matter—only for immigration violations. Arrests for the underlying crimes of murder, drug dealing, assault, and conspiracy are made by HSI, the FBI, or the local police.34

But rather than simply being irrelevant to the apprehension of transactional criminal enterprises, the ERO deportation force often is thwarting the investigation and prosecution of gang members.  In some cases, the ERO deportation force arrests and deports government informants who have provided law enforcement with information on members of MS-13. In my work as a solo practitioner, I have represented two clients from Mexico and El Salvador asserting asylum claims based on their fear of gang retribution against them. Both have volunteered to be U.S. government informants. One client provided information that assisted in the arrest and conviction of over 200 members of the MS-13 gang, and the other provided information for the arrest and conviction of over 100 people involved in drug trafficking. The ERO deportation force had arrested both clients for immigration violations and attempted to deport them. Due to the intervention of the Ninth Circuit, one received legal status, and the other has a hearing scheduled for later this year.

Lastly, Trump’s endless drumbeat of the dangers of MS-13 gangs to justify ICE’s existence undermines public safety by diverting our attention away from harms for which potential government solutions are neither pursued nor realized. As Professor Patricia Williams noted, racism does not simply entail erroneously misidentifying one group of people as dangerous, but it also renders true sources of likely harm invisible.35 To illustrate her point, Williams highlighted the irrationality of presuming Black teenagers on public streets to be violent threats when statistics bear out that most white people are likely to be victims of crimes perpetuated not just by other white people, but by white family members or close friends. “[T]he general white population seems, in the process of devaluating its image of black people, to have blinded itself to the horrors inflicted by white people.”36

Likewise, the outsized attention President Trump and the ERO deportation force place on the MS-13 gang in particular and immigrants in general elide the real dangers Americans face: gun violence kills 100 Americans each day,37 a rate 25 times higher than other Western countries, which have stricter gun control laws.38 Domestic violence results in three American women being killed each day by former or current partners.39 Attention and policies spent on funding “solutions” to the false threats of dangerous immigrants is pursued at the cost of inattention and inaction on real sources of violent—and preventable—threats that Americans face.40

THIRD, the ERO’s deportations are actively interfering with prosecuting criminal enterprises.

The ERO deportation efforts are not only a waste of resources, but they are also interfering with prosecution of criminal enterprises. In June 2018, nineteen HSI agents asked for HSI to be completely separated from the ERO deportation force because, among other reasons, an association with the ERO causes local police not to cooperate with HSI.41 The ERO deportation force has further soured relationships with local police departments by asking local jails to hold and turn over U.S. citizens for deportation, without regard to evidence of citizenship.42 The lies are costly to tax payers, as the ERO deportation force does not indemnify local police departments that are found liable for monetary damages from individuals whom the police wrongfully arrested or detained based on ICE’s assurances.43

Moreover, the ERO deportation force is raiding HSI’s funding that is used to investigate and apprehend those involved in actual ongoing crimes. Whereas the ERO deportation force is targeting people who were convicted of crimes decades ago, HSI arrests those who it suspects pose an existing threat to the public. The ERO deportation force is taking away resources from the HSI. According to the HSI, “the ebbs and flows of ERO detention priorities have directly impacted HSI operations and infrastructure, including the reprogramming of HSI funds to ERO (specifically $5M in FY11, $10M in FY13, and $34.5M in FY16).”44 Restated, ERO is taking away funding from the agency that focuses on active transnational criminal matters—including human trafficking—to instead target, arrest, and deport people without criminal records and who are not a threat to public safety.

The ERO deportation force is also lurking at state courthouses,45 arresting witnesses to crimes and victims of human trafficking.46 As unbelievable as it sounds, the ERO deportation force is deporting crime victims, including those who have agreed to cooperate with prosecutors and who are willing to serve as witnesses at trial. Under Trump, ICE arrests at courthouses, which include victims and witnesses to crimes, has risen 1,700%.47 The Chief Justice of the California Supreme Court repeatedly has asked ICE to stop this policy, an extraordinary request that the ERO deportation force ignores.48

In June 2018, former Attorney General Sessions attempted to unilaterally change asylum law so that those who assist U.S. law enforcement in apprehending and arresting members of gangs will no longer be able to ask for asylum.49 Although a district court has blocked this policy change, it reveals that this administration is so blinded by its anti-immigration agenda that it is pursuing goals that undermine legitimate law enforcement efforts.50

The ERO deportation force is taking the funding that HSI would otherwise use to combat gang violence and is tainting the entire ICE agency with a reputation for overzealousness, dishonesty, and racism, thus interfering with ICE’s ability to cooperate with police. The ERO deportation force has been deporting crime victims and witnesses, as well as those who risked their lives helping the United States apprehend criminal gangs, thus preventing state prosecutors from convicting those charged with crimes. Not only is the ERO deportation force unnecessary to keep us safe, but there are reasons to believe that our communities would actually be safer if it were defunded.

FOURTH, the ERO deportation force has lost all sense of proportionality and is arresting parents, workers, neighbors, green card holders, and now citizens.

Because HSI is targeting transnational criminal enterprises,51 the ERO deportation force is left arresting those who are not suspected of any current criminal conduct. Rather, the ERO deportation force is arresting parents, workers, neighbors, family members of citizens, and even those with green cards52

and citizenship.53  The ERO deportation force has arrested fathers dropping off their citizen children at school,54 snatched a mother off a public street leaving her three citizen children alone,55 and even detained those married to citizens who showed up at their green card interviews.56 These are not aberrations, but are the direct result of the agency’s current mandate.57

ICE maintains roadside checkpoints during hurricane evacuations; it roams buses, airports, and public streets across the country asking for papers—a scene from a World War II movie, not a slice of Americana.58 The ERO deportation force also is apparently lying to non-citizens, falsely claiming to be the police force to secure immigration arrests of people who are not even accused of crimes.59

Supporters of ICE argue that we need the ERO deportation force to keep us safe, but the ERO deportation force is not even pretending to go after people who commit serious crimes. Rather, the agency devotes its excessive government resources to harass immigrants and citizens alike and surveil those who advocate for social justice.

For example, in October 2018, ICE’s Office of Professional Responsibility subpoenaed Daniel Kowalski, a U.S. citizen who is a journalist, immigration attorney, and editor of a website used by practitioners to stay informed on immigration law.60 Mr. Kowalski had published on his website an ICE internal memorandum that provided guidance to government attorneys regarding the recent rule changes made by former Attorney General Sessions that make it harder for those fleeing domestic violence and gangs to qualify for asylum.61 The ICE Special Agent demanded information from Mr. Kowalski about who had sent the memorandum. The “summons” was issued by ICE (not a judge), lacked the force of law, and violated the First Amendment and state laws protecting journalists from revealing their sources.62

It is unclear how and why targeting a citizen for information about a government leaker is in the mandate of the ERO deportation force.

Similarly, in November 2018, it was revealed that the ERO deportation force had embedded informants in a Vermont-based labor organizing group. Using tactics that law enforcement agencies typically employ to disrupt organized crime, ICE targeted labor organizers who were undocumented for arrest and deportation.63

The ERO deportation force is responding to criticisms of irrationality and excess by doubling down and investigating lawful permanent residents and even naturalized citizens in the hopes of deporting even more people. This list will also shortly include the DREAMers, hundreds of thousands of those who had legal status for decades under the Temporary Protected Status programs, and veterans who were promised citizenship.64

FIFTH, Americans are losing—not gaining—jobs from this overly aggressive deportation strategy.

ICE’s deportation efforts are hurting American workers. One Bush-era ICE raid in Postville, Iowa resulted in an entire factory shutting down and the decimation of the town due to loss of renters, homeowners, and customers who had previously supported the local economy.65 More recently, mom and pop businesses cannot open during tourist season,66 racetracks cannot find workers,67 and deportations threaten the dairy industry, which is largely supported by immigrant labor.68

Deportations are not protecting jobs for American workers. To the contrary, deportations of workers result in the loss of U.S. jobs and economic well-being. Indeed, our economic prosperity requires that we welcome more immigrants, not fewer. As Shikha Dalmia has argued, “[T]he idea that America is experiencing mass immigration is a myth. The reality is that we desperately need to pick up the pace of immigration to maintain our work force and economic health.”69

SIXTH, the ERO deportation force has a toxic culture that resists reform, and thus must be brought to an end.

Since its inception in 2002, ICE has been repeatedly caught making mistakes, lying to the public, acting outside its legal authority, acting overzealously, causing preventable deaths, targeting law-abiding community members, and making decisions tainted by racism.70 The Obama administration was unable to rein in and reform the internal culture of ICE that aggressively—and at times unlawfully—abused discretion, norms, and immigrants themselves.71 As a result, it stands to reason that the problems with ICE and the ERO deportation force will not end when the Trump Administration is over.

Regardless of who has held the presidency, ICE officials have publicly engaged in political activity advocating more aggressive enforcement actions against non-citizens. In 2012, ICE officers sued President Obama, asserting in part that the DACA program and the Obama administration’s policy to exercise discretion in deportation were illegal (neither claim was vindicated).72 In the 2016 presidential election, the union representing ICE officers endorsed Donald Trump.73 Going one step further, some ICE agents created a website to communicate directly to the American people.74

The content chosen included nativist propaganda from Breitbart.com and articles critical of President Trump’s failure to end all “illegal immigration.”75 It would be unimaginable for a group of career officers at the State Department to tell the American people who they should vote for and against while selectively highlighting and omitting facts to further an internal political agenda; yet, this is exactly what ICE agents did in support of Donald Trump.

In addition, ICE has lied to the public and even federal judges about its true mandate and actual accomplishments. In March 2018, an ICE spokesperson resigned after refusing to follow his superiors’ instructions to falsely report that the agency had arrested 800 “dangerous people” when it had done no such thing.76 ICE responded by sending agents to interrupt his television interview, an act the former official described as an “intimidation technique.”77 Additionally, in November 2018, a federal judge released 120 Iraqi nationals and indicated that he would sanction ICE attorneys who gave the court “demonstrably false” information about the conditions they would face if deported.78

The intimidation tactics and lies speak to an agency infected with a culture that eschews good governance. The military, by contrast, subjects its officers and members to court-martials if they obey an unlawful order. The military has a code of honor and discipline to incentivize courage and integrity. ICE seems to revel in the contrary. Congress cannot reform what is rotten, but Congress can end the rot by defunding it.

SEVENTH, the ERO deportation efforts are theatrics of intimidation. When the ERO makes an arrest, there is a cognizable likelihood that the non-citizen will get legal status.

The ERO deportation force’s theatrical tactics to communicate force—from the state court arrests of crime victims and witnesses, to the dramatic kidnappings off of public streets, to roadside checkpoints—suggest an urgency of mission and a dangerousness of those arrested, that in fact does not exist. The theatrics are completely unnecessary and falsely suggest that ICE is targeting “violent criminals.” This conceals the reality that the ERO deportation force merely targets parents, children, and people who are integrated into communities. Of most import, the dramatic arrests hide the reality that many of those arrested people will, after their arrest, receive legal status and be released to the community.

As an example of the ERO deporation force engaging in theatrics rather than legitimate enforcement activity, ICE makes an effort to arrest people in the moments before they are able to obtain legal status by targeting people at green card interviews. Recently, ICE arrested the pregnant wife of a citizen at her green card interview and detained her knowing that she had a high risk pregnancy. ICE also denied her hypertension medication for two days while she was detained.79 If ICE had waited for the interview to end, she would have had a green card and would not have been subject to arrest. The arrest and detention appeared to be just for show. ICE released her within four days, after the media learned of her senseless arrest.80

It is intellectually dishonest to justify the ERO deportation force’s mass disruptions to our families and communities because “they” are supposedly “illegal.” The use of the term “illegal immigrant” is an unconvincing justification for this wasteful and irrational policy because the term “illegal immigrant” is a fictitious term at best, and a slur at its worst. It is not a technical term used by any immigration court and has no meaning in immigration law.81

You do not hear of “immigration violators.” This is because immigration violations are civil matters, which include minor and unintentional conduct such as volunteering on the wrong visa and overstaying a visa. Immigration violations involve conduct that is not akin to criminal activity and is not a serious breach of public safety.

Because of that, even where immigration violations are proven, the second phase of every immigration hearing, and immigration interview, begins with the question: What remedies nonetheless are available that will provide the non-citizen with lasting legal status such as a green card or asylum?82

These remedies are readily available and freely given, even after immigration violations are proven. When non-citizens are given an attorney, as many as 77% of those arrested by ICE with proven immigration violations walk out of immigration court with legal status.83 It is unimaginable for someone after being convicted of a crime to be given a good citizenship certificate instead of a sentence. But that is what happens in immigration court every single day. “Pre-legal immigrant”—not “illegal immigrant”—is the more accurate term for those being targeted by the ERO deportation force.

EIGHTH, the ERO deportation force is antithetical to fundamental democratic ideals.

We are a nation of laws, but we do not enforce all of them, especially the minor and outdated ones. The ERO deportation force’s escalating campaign to arrest and deport millions cannot be justified simply because people without status—or those who are green card holders and citizens who are convicted of minor or remote matters—are breaking some sort of law. That logic—we just lock them up—is antithetical to how we prosecute laws and how our country operates. Unlike totalitarian regimes or police states, in a democracy, we do not arrest everyone for every single crime they commit. It is likely that the vast majority of Americans have, at one time or another, exceeded the speed limit, jaywalked, consumed alcohol before the age of majority, stolen office supplies from an employer, used illegal drugs, or committed other similarly pedestrian violations.

Moreover, pursuing minor and silly crimes comes at a cost. Sixteen states still criminalize adultery,84 but not a single prosecutor is lying in wait outside divorce court to lock adulterers up. That is because if our courts and jails are clogged with adulterers, police and prosecutors will not be able to investigate more serious crimes such as murder, robberies, and violent assaults.

The very premise that we should have a roaming government agency that arrests, detains, and deports anyone with a minor immigration violation violates our democratic norms and depletes resources that could be more strategically and effectively targeting actual sources of harm.85

NINTH, the ERO deportation force’s overly-aggressive deportation strategy dehumanizes immigrants, which undermines public support for needed immigration reform.

As a candidate and president, Donald Trump has called immigrants, “rapists,” “criminals,” “thieves,” “MS-13” gang members, “murderers,” “terrorists,” and “animals.”86 President Trump’s claims that immigrants have bad character and have committed criminal acts are more akin to propaganda than terms within reasonable parameters of a policy debate.87 It is critical to recognize that President Trump’s repeated defense of—and call for the expansion of—ICE’s powers is premised on the same falsehoods that immigrants are criminals and undocumented immigration threatens our nation’s safety.

President Trump is defining his presidency with this rhetoric, but he did not start it. In 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), which eliminated numerous avenues that people previously had to legalize their status.88 This law also codified the wrongful conflation of immigration and crime by using the term “Illegal Immigration” in its title.89 IIRIRA’s irrational end to providing legal status to immigrants created the size and permanence of the undocumented population,90 and its false reification of “illegal immigration” as a matter needing the intervention of criminal law enforcement laid the foundation for ICE to come into being.91 When ICE was created in 2002, its mandate was to deport all people who were deportable.92

If the government suddenly made it very difficult to obtain driver’s licenses and then described anyone who drove without a license as “illegal drivers,” the public might be more inclined to spend billions of dollars each year to arrest and jail the drivers—which has been our country’s immigration policy for the past 20 years. The term “illegal” would distract the public from realizing that it is not the drivers who are lacking good character, but it is the government that suddenly and irrationally stopped issuing driver’s licenses.

The ERO deportation force brings into full view the impact of this false rhetoric that dehumanizes all immigrants as criminals. Hannah Arendt observed that Nazi Germany achieved its goals in part because it had convinced the public that if a group of people were criminal, they deserved whatever punishment the government meted out. She wrote, “[T]he inclusion of criminals [among the targeted groups of undesirables] is necessary in order to make plausible the propagandist claim of the movement that the institution exists of asocial elements.”93

Stated another way, if our government is spending billions of dollars each year on a hammer that is the ERO deportation force, few will question why every single immigrant is treated as a nail, a criminal and dangerous element for which removal is warranted.

Most Americans support immigration reform.94 This fact is not surprising when people understand who in fact is immigrating, regardless of whether their entry is by plane or swimming the Rio Grande. In one of his last formal speeches, President Ronald Reagan eloquently paid tribute to how immigration shapes and renews our country’s values. In his words,

We lead the world because unique among nations, we draw our people, our strength, from every country and every corner of the world. . . .Thanks to each wave of new arrivals to this land of opportunity, we’re a nation forever young, forever bursting with energy and new ideas, and always on the cutting edge; always leading the world to the next frontier.95

But ICE’s tactics of force perpetuates myths of dangerousness and obscures the reality that immigration, and policies that welcome immigrants, are among our nation’s critical underpinnings. The ERO deportation force’s theatrics of force and the dehumanization of immigrants give the ERO a false legitimacy. Moreover, the excessive and relentless arrests of immigrants distract Americans from the truth, which is that it is irrational of our government to refuse to offer legal status to those who contribute to our country. This distraction further keeps our politicians from pursuing the needed, common sense immigration reform that will legalize status of the undocumented. The sooner the ERO deportation force is defunded, the sooner we can achieve real immigration reform. As demonstrated by President Reagan’s words, a president lionized by the contemporary Republican party, embracing immigrants is not a new or trendy liberal idea. It is an American one, deeply rooted in our past and critical to our country’s future.

TENTH, there is existing precedent to defund misguided prosecutions to stop government waste without an identified replacement. 

In 2018, former Attorney General Sessions directed all federal prosecutors to arrest marijuana users, including those who live in states where buying and selling marijuana is legal.96 But there has been no national crackdown on pot—not because Congress repealed federal law—but rather, in a remarkable and quiet bipartisan effort, Congress took away all funding for any federal prosecutor to follow Attorney Sessions’ directive.97

Congress did not repeal the law criminalizing marijuana use, nor did it create a separate agency to enforce only necessary laws. Congress instead realized that the power of the purse is its most impactful power. In the immigration context, until it can reform the laws, Congress can disband an excessive, irrational, and wasteful agency that hurts more Americans than it protects.