Monday, November 27, 2023

Why ICE Needs to Be Abolished Now

Guest blogger: Ramya Sinha, law student, University of San Francisco

Did you know that U.S. Immigration and Customs Enforcement (ICE) is the only federal agency required by statute to detain at least 34,000 individuals daily?[1] [The figure was raised to 40,500 in 2018, and establishes an informal quota for enforcement activity—Republican lawmakers typically push for as many beds as possible and encourage ICE officials to fill them with potential deportees.] No other law enforcement agency is subject to a statutory quota for the number of individuals it must detain. The negative impact of ICE's actions is not limited to immigrants alone. US-born citizens are also affected and may be wrongfully detained and even deported to countries they have never been to. This happens because ICE prioritizes meeting statutory quotas over respecting human rights. I hope this horrifies you as much as it horrifies me.

Each day, thousands of people are taken into ICE detention facilities which have the most deplorable, unsanitary, and inhumane conditions. These facilities were not built to safely hold 34,000 plus people, yet the detention quota has not ended and neither has the dehumanization of immigrants. Customs and Border Protection (CBP) has an agreement under the CBP National Standards on Transport, Escort, Detention, and Search (“TEDS Manual”) which lays out the standards that should be followed regarding the living conditions in the detention centers. Although ICE agents are legally required to follow this manual, they typically do not and face no consequences for doing so.

Many detainees are not given enough food, and when they do it is typically inedible. Under the CBP’s standard, clean drinking water must always be available to detainees.  However, many detainees have no access to clean drinking water and are forced to drink visibly dirty water given to them in dirty glasses. Sometimes one glass is shared amongst a room of people. Under CBP’s standards, they are required to provide personal hygiene items to detainees and clean every holding room to ensure that everyone has a clean space to sleep. However, detainees are forced to share one overcrowded bathroom with over 50 people, depriving them of privacy. Detainees are forced to sleep on cold and dirty concrete floors with an aluminum sheet to keep them warm. Many people end up sharing the aluminum sheets with their children and loved ones to prevent hypothermia. There is no access to soap, toothbrushes, clean bedding, pillows, blankets, toiletries, proper medical care, or anything that all human beings should have access to. There are some people who show up with wet and dirty clothes from crossing rivers and are not given a fresh change of clothes.

Under CBP’s standards, ICE agents must maintain room temperature with a reasonable and comfortable range suitable for all. However, ICE agents intentionally keep rooms cold and use low temperatures as punishment for requests to adjust them. Nobody has a bed or a blanket and everyone is miserable. As more people are cramped into these detention centers, the conditions worsen, and temperatures drop even more making it a crowded and deathly ice box. Conditions in these facilities are so bad that some people even die. Seventy-one individuals died while in ICE detention between 2011 and 2018, and twenty- one individuals died in the year of 2020 alone. Suicide by hanging accounted for 25.7% of deaths and lack of access to proper medical care accounted for 74.3% of deaths. The statistics reveal that the only cause of death in ICE detention centers is the inhumane conditions that prevent detainees from receiving the necessary medical treatment and resources. ICE agents show no concern for their well-being and make no efforts to ensure that they have access to adequate medical care and other essential items for survival.

In the case Flores v. Sessions, the plaintiffs were individuals who had been detained and were forced to stay in deplorable conditions exactly like the horrible conditions stated above. The plaintiffs filed suit to enforce the settlement agreement that the parties had agreed upon before the lawsuit, to ensure safe and sanitary living conditions. The plaintiffs also asked the court to appoint an independent monitor to ensure that ICE agents are following their guidelines and providing safe and sanitary living conditions. The court responded to this request by stating that detention facilities should have an internal monitor, even though the court has never seen CBP fill this internal monitor position. Although the plaintiffs presented ample evidence to prove the cruel living conditions they were subjected to and the lack of internal oversight by ICE to ensure humane conditions, the court still decided to give ICE a chance to rectify their mistakes. This statement highlights that the plaintiffs in the case, as well as all other immigrants who are detained, are subjected to living in inhumane and life-threatening conditions. It also emphasizes that there seems to be nothing they can do, as both the government and the courts appear to be indifferent to the plight of immigrants and their basic human rights.

ICE agents are given way too much power to make crucial decisions that impact the lives of many people, not only in detention centers but virtually everywhere they go. ICE agents and immigration judges are allowed to detain immigrants without bond if they decide that the individual poses a danger to the community or is a flight risk, and they are not required to provide evidence confirming that the individual poses any risks. ICE agents and immigration judges have complete and unchallenged power to refuse people bond without giving any reasons. Unfortunately, this system disproportionately affects Haitian immigrants who are often categorized as a threat to society by ICE officials at ports simply because they are Black and come from Haiti, a poor and Black nation known for its history of rebellion and resistance.

The court in US v. Martinez-Fuerte held that ICE agents are allowed to stop someone solely due to having a “Mexican appearance” at any internal or border checkpoint and there are no legal remedies afforded to immigrants for experiencing this type of racial profiling that typically results in deportation or other negative consequences. The court in US v. Brignoni-Ponce held that when ICE agents are at or within one hundred miles of the border, they must have reasonable suspicion to stop someone, including but not limited to racial profiling. Thus, ICE agents are allowed to stop anyone who is near any border for having a “Mexican appearance” if they also have other facts that amount to reasonable suspicion which does not take much. In addition, ICE agents are allowed to come onto boats that are at or within one hundred miles of any US border and ask anyone on board to see their identification papers. It does not matter where you are, if ICE agents ask you for your papers, this request is seen as consensual for Fourth Amendment purposes which leaves little to no room for any person to bring a Fourth Amendment challenge to the request for identification no matter how demeaning or threatening the request was.

ICE agents have broad powers during workplace raids, including the ability to racially profile and detain individuals on site. The test used to determine whether someone has been “seized” under the Fourth Amendment that is applied to criminal proceedings, asks whether a reasonable person would feel “free to leave.” If they do not feel free to leave, then that is considered a seizure. However, this test does not apply to immigrants who experience workplace raids and are not free to leave whatsoever. This is what happened in INS v. Delgado where INS workers conducted workplace raids and stationed themselves outside every exist so no employees could leave. Yet, the Supreme Court held that this was not a “seizure” for Fourth Amendment purposes because the immigrant workers could still freely walk around the building. Therefore, any incriminating responses immigrants give to ICE or INS agents at their workplace regarding their status will be used against them and there is typically no constitutional remedy or exclusionary rule because the government believes that the Constitution does not apply to immigrants in the same way that it does to US-born citizens, and this has incredibly harsh consequences.

It is for all these reasons and many more not listed that ICE must be abolished now. If we are truly committed to our claim of creating a nation that cares for immigrants, then we must take systematic and judicial measures to ensure their well-being. This can be achieved by putting an end to the widespread use of agents who wield excessive authority and are tasked with capturing, deporting, and dehumanizing immigrants. Abolishing ICE and giving more power to community organizations, legal aid groups, and immigrant communities themselves is necessary to ensure that the human and civil rights of immigrants are not violated. This will provide immigrants with opportunities, education, and resources to thrive in the US. By doing this, we can create a more equitable and safer society for all people, not just white Americans.


[1] The detention bed mandate was introduced in 2009 into DHS’s Appropriation Act. As some members of Congress and prior ICE leadership have interpreted the language to require ICE to maintain 34,000 beds daily, it has become known as a detention bed “mandate.”


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