Carlos Batara – Immigration Lawyer header image

Are ICE Agents Above The Law?

– Posted in: Deportation And Detention

Immigrants need a Dirty Harry.

From coast to coast, ICE officials act as if they are above the law.

Although the goal of the “Secure Communities” program is to remove immigrants who have been convicted of certain serious criminal offenses, many immigrants with no convictions or only low level offenses, like traffic citations, have been targeted by less-than-compassionate ICE agents.

Stories of ICE’s callous approach to law enforcement, at times, resemble robotic seek and destroy immigrant family missions.

  • ICE following immigrant kids coming home from school to identify their undocumented parents
  • ICE taking into custody immigrants who reported being the victim of crimes
  • ICE apprehending immigrants on the way to and from church on Sunday
  • ICE arresting immigrants sitting as passengers for not having a working seatbelt

Of course, not all ICE agents act in an indiscriminate manner.

Still, there are far too many who ignore such distinctions in their quest to lock up and remove as many immigrants as possible.

Without a Harry Callahan to challenge the rogue division’s abuse of authority, they’re free to engage in whatever tactics they deem fit.

A View From Inside The Bureaucracy

Long before becoming an immigration attorney, I served as a district administrator for a federal agency.

I learned the meaning of “bureaucracy” on a first hand basis. I saw, from the inside, why government departments are viewed as lumbering and inefficient organizations by the public.

We went through annual training and spent countless hours every week ensuring rules and procedures were consistent from office to office across the nation.

Since every region of the U.S. has unique cultural and social characteristics, I believed some flexibility was needed to insure the efficiency of public services to local residents. When I complained that existing procedures did not fit the needs of our local region, my misgivings were usually deemed insignificant, if not insubordinate.

I learned a major lesson. Uncle Sam is a strict taskmaster. It seemed like, for every conceivable situation, there were procedures to be followed, with no deviation.

There was always only one way to do things.

By the book.

So I am puzzled by the behavior of many ICE agents. Far too many often, they behave as if they have no procedures to guide their actions.

What Happened To The ICE Rule Book?

A few weeks ago, I received a frantic call at my Hemet immigration law office from a Moreno Valley family. Their son-in-law had been apprehended by ICE agents on a Thursday morning at 6:00 a.m.  I was working the case by 6:30 a.m.

He was taken into custody for being an overstay.  ICE located him through his Facebook account.

He had never been arrested and no history of criminal charges. The couple had one child, less than a year old. They had filed papers for a family visa and were waiting for his green card interview to be scheduled by the government.

His only wrongdoing, explained his mother-in-law, was falling in love with her daughter and remaining in the U.S. past the term of his temporary visa.

The family had been given a business card by the ICE supervisor who arrested their son-in-law. It took me about 4-5 hours to reach this officer. He didn’t return any of my calls, so I simply kept calling every hour. When we finally talked, he told a different officer was in charge of the case for the young man who had been picked up.

I called the new officer in charge. Two hours later, he called me back. He was not the officer in charge of the son-in-law’s case. He told me it was Officer Smith.

He also said the young man was in transit to a detention facility, but it was still unclear which facility.

I proceeded to call Officer Smith. No luck.

The next morning, I called the second ICE agent again. He gave me a new number. He suggested I call Officer Jones who was the duty officer for the day.

Late in the afternoon, Officer Jones returned my call. He could not tell me where the young man was currently detained, and noted I needed to consult with Officer Smith. I explained Officer Smith had not returned my calls.

I began calling Officer Smith again.

On late Friday, a new agent, Officer Lopez said he was calling for Officer Smith who was unavailable to talk to me until Monday. Officer Lopez claimed complete ignorance about the young man’s case.

By now, I felt trapped in a crude rendition of Abbott and Costello’s “Who’s On First?” routine.

On Monday, I reached Officer Lopez. He was not the officer in charge of the file. He said it was Officer Martinez. He noted that she was not scheduled to return until the next day. He said he was handling her files until then.

However, he lacked the authority to discuss immigration detention and bond issues with me.  prosecutorial discretion.  This had to be taken up with Officer Martinez.

Officer Martinez called me back not on Tuesday, but on Wednesday.

When I asked her about prosecutorial discretion, she told me that ICE would not exercise discretion in this matter, despite the new Morton memo.

I was disappointed, but not surprised.

As I noted in The Morton Memorandum: More Empty Talk Or The Real Deal This Time?, you can’t change the culture of an organization with one memo – especially one like ICE which has a tendency to see the world through us-versus-them spectacles.

She added if I wanted to push the issue, I could put my concerns in writing and it would be taken up by her supervisor.

And who, I asked, was that?

The officer who apprehended the young man . . . who was also the first officer I had contacted about this matter.

I had went through six officers and ended up where I started.

I then asked if they had any guidelines to following in laying out our request for discretion.

Nope.  But, she added, “since you seem to know so much about the Morton memo, you should know what to write.”

I thanked her for her helpful recommendations.

Unfortunately, this is not a one-time incident.

Bureaucratic Inefficiency Or Political Gamesmanship?

Given my training, this is not the way federal agencies are designed to work.

All federal employees are trained using the same manuals. They’re required to follow rote procedures. This ensures very limited, if any, lack of clarity in knowing which employee is handling which function.

Yet, this is how it seems ICE operates . . . way too often.

Every federal agency has rules and rules and rules to follow.

It’s hard to imagine ICE is allowed to operate without similar, strict procedures.

It seems implausible that when an individual is taken into ICE custody, no one knows who is in charge of the file. Or that the officer in charge of the file is not required to respond to inquiries by family members or their legal representative.

After all, the only other possible view is that ICE procedures mandate agents to give deportation defense lawyers like me the run-around.

Maybe the latter possibility is not as far-fetched as it might seem at first glance.

Especially when there’s no Harry Callahan to protect the public.

By Carlos Batara, Immigration Law, Policy, And Politics