U.S. Immigration and Customs Enforcement

7–11 minutes

I love this meme. Everything about it is American. It’s Vine-era origin. The political shade made palatable, cool even, via comedy. The affinity for a drink so cold you can hear it accessory to the loathsome thought of being anywhere in any climate sipping on something at room temperature. Can you imagine? Gross. Offensive.

But that’s not the ice I came here to talk about. This article is about ICE. You know it. I know it.

But do we really?

Maybe you’ve done some more investigating, but all I know is what I’ve seen on my algorithm-driven social media feeds. In my world ICE looks pretty ruthless, but I’m wondering if it was always that way and why it even exists the first place.

There is this gray area that I’ve talked about before (see The Affordable Care Act) referencing the woes of the politically conscious zoomer. The things we care about now are heavily influenced by events that took place while we were alive but too young to understand what the f*ck was going on. These events were too modern to learn about in social studies class but too ancient to retain as far as our frontal lobes were concerned. So now we repost political convictions in our Instagram stories that we hope reflect our values but can’t be too sure because we only sort of know the full context of why the world is on fire this week.

For a generation that’s obsessed with receipts, we largely have none when it comes to modern political policy. We have no idea how sh*t works and people know that. They see right through our public displays of disgust with the government and label them as virtue signaling or blind allegiance to whatever is hot right now. And they’re kind of right. Just think back to the last thing you reposted about our government goings-on. Could you answer a detailed question about the systems at play behind the subject matter? I couldn’t.

Now, I’ll own up to this, but I’m not happy about it. The only thing I hate more than knowing I’ve been caught in a flimsy moral conviction is the thought of a boomer making a correct assumption about me. We can’t have that. My pride is too fragile. I may be in my mid 20s but I still have some adolescent angst left in me.

Let’s beef up our archives, shall we?

ICE has its roots in the 9/11 terrorist attacks on the Twin Towers. After the tragedy, Congress passed the Homeland Security Act of 2002 which established the Department of Homeland Security (DHS) with the purpose of counterterrorism, border security, cyber security, and economic security. In 2003, as the government was re-organizing to assemble DHS, U.S. Customs Service and Immigration merged with the Naturalization Service to form Immigration and Customs Enforcement a.k.a. ICE.

Here is a way-too-detailed diagram of the offices in the DHS. The red box indicates the major operational agencies i.e. the ones you have probably heard of.

ICE has three main branches:

Homeland Security Investigations (HSI)
- These are the ones that act as detectives. They investigate crimes and identify the real losers who do sh*t like human trafficking, terrorism, and drug smuggling.
Enforcement and Removal Operations (ERO)
- These are the officers you see out in the wild. They do the physical arresting and detaining. They deal primarily with the civil offense of illegal immigration.
Office of the Principal Legal Advisor (OPLA)
- These are ICE’s lawyers. When ICE pursues the deportation of an individual for violating immigration laws, they have to argue and win that case against the Department of Justice’s Executive Office for Immigration Review.

God, so many follow up questions. Let’s start with the words I chose to put in bold. Once upon a time, we all learned the difference between a criminal and a civil offense. Then, we grew up, studied not-law, and never again considered semantics until we started hoping maybe both Justin Baldoni and Blake Lively could be sent away for a while. Now we are sitting on our couch, sipping a Poppi, watching Love Island, and Googling “can you get arrested in a civil lawsuit?”

Anybody else?

Just me?

Well the answer is, generally, no. So why are ERO officers detaining en masse immigrants who are here illegally?

It would be helpful to start by reviewing the Due Process Clause. Go ahead, pat yourself on the back for sort of knowing this one. This b*tch is tacked onto the 14th amendment and she guarantees rights like a speedy trial, trial by jury, guaranteed lawyer, etc. Her purpose is to ensure that the government doesn’t abuse it’s power in criminal cases and prosecute people willy-nilly, since criminal cases area always the government versus a defendant. The Fifth Amendment is also worth mentioning here because it extends due process protections to illegal immigrants. That’s another gray area, though. More on that later.

Civil cases take place between private parties, for example Wayfarer Studios, Justin Baldoni v. Blake Lively. Due process applies in civil cases to some extent, but the government isn’t going to do things like provide a lawyer for the defendant in a private dispute. I personally wouldn’t want my tax dollars paying for a lawyer for Ms. Lively, but that’s just me. There’s also no guaranteed jury in civil cases.

If you’re a more visual learner, here are a couple of diagrams to break down the differences between both the legal proceedings and the rights as dictated by the Due Process Clause.

Okay, word. But that still doesn’t explain why ICE has the right to arrest undocumented immigrants. Didn’t we just say that there’s only detainment and detention with criminal charges? What I have found in my research thus far is that the immigration legal system does not work the same as our U.S. legal system. There is a ton of gray area and the more I read about it the more I’m convinced it’s structured more on vibes than it is on sound legal substance.

Trial without a jury? Hell yes. Detainment and detention that can arbitrarily last years? Period. Arrest without judge-signed warrant? Slay.

Okay, I’m getting carried away. You didn’t come here for Stefon references. I would argue that you should go all places hoping for a Stefon reference, and it’s not my fault our country is the most meme-able place on Earth right now. But, yes, let’s sift through all the sh*t I just threw in your face about constitutional rights for immigrants.

In reality, immigration proceedings operate a lot more like criminal law but since they are categorized as civil, the undocumented person has much more limited access to rights guaranteed under the Due Process Clause. They also have limited due process rights because of the previously mentioned Fifth Amendment. The amendment does extend due process rights to undocumented immigrants, but provides for oodles of nuance. It’s far too detailed to cover in this article, but if you’re wanting to dive deeper then click here. My minimally-biased interpretation is that undocumented offenses are highly nuanced and the structure of the system doesn’t mesh well with the rights guaranteed by the constitution. My preferred interpretation is that protective rights for illegal immigrants are highly dependent on the political zeitgeist.

In addition to vibes-based human rights, ERO officers have special powers when it comes to arresting and detaining individuals. Even though undocumented status is a civil offense, officers can detain someone at any point during or before their trial. They just have to have a signed administrative warrant that states that there is “probable cause to believe that X individual is removable from the United States.”

Now there are two types of warrants you should know about. A judicial warrant is one that is signed by a judge and provides the authority for search and seizure as long as there is probable cause of a crime. It has to be signed by a judge as a neutral party with legal knowledge to make sure a person’s privacy is not infringed upon.

An administrative warrant is basically just a statement that says this federal officer has the authority to arrest this person because they are probably undocumented and subject to being deported. Administrative warrants do not have to be signed by a judge. They don’t even have to be signed by a supervisor or anybody even slightly resembling a neutral third party. ICE officers have the authority to issue administrative warrants for arrests they themselves are making. Administrative warrants also do not grant the authority of search and seizure.

When I take a step back, it looks to me like undocumented persons are physically treated like criminals in a system that gives the federal government the litigation power of a private entity. Their due process protections are limited because cases of undocumented status are considered civil. But, they’re up against a federal agency with distinctive powers to detain them as if they have committed a criminal offense. Oh, and for many, English isn’t their first language. I’m sure that adds an extra layer of fun on top of it all.

Enter stage left Stephen Miller and Kristin Noem. The former being the White House Deputy Chief of Staff and the latter the DHS Secretary. These are ICE’s bosses. They issued a mandate that ICE agents arrest 3,000 undocumented immigrants per day in accordance with the current administration’s goals for immigration reform, a notoriously ambitious quota. Here’s a visual from Reuters.

As you can see, ICE is getting after it. I can’t say I’m surprised considering the special detainment powers they have coupled with the boss-man cracking down on their numbers. They have a job, and they have orders. The rest, as are so many things in this country, is a question of interpretation.

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