Posted by Guest on August 18, 2017 in Blog

2017-08-18.pngBy Celia Katz-Zogby

By repeatedly invoking the threat of MS-13 gang activity, and maligning sanctuary and 4th Amendment cities, the Trump administration seems to be doubling down on its irrational and possibly illegal approach to undocumented immigrants. In an executive order released January 25, 2017, the Trump administration threatened to withhold federal tax dollars from counties and cities with sanctuary or welcoming policies. The administration accuses sanctuary communities of ignoring detainers issued by ICE (U.S. Immigration and Customs Enforcement) and violating 8 U.S. Code 1373. The complicated legal arguments mean that the issue is often reduced to sound bites hiding the EO’s reach. The order itself could have a significant impact on communities across the country as it cities with large populations like San Francisco, Los Angeles, New York, and Chicago.   

So what are detainers? In order to deport undocumented immigrants, ICE needs local law enforcement to detain them until they can be picked up and taken into custody. According to the American Immigration Council, “Detainers are only requests made by ICE; compliance is voluntary. An LEA [Local Enforcement Agency] has discretion to decide which detainers to honor and under what circumstances….In order to issue a detainer, ICE is supposed to have probable cause that the individual is deportable.” By allowing the executive branch to withhold grant funding based on the detainer issue, the DOJ and the White House are taking budget control away from the legislative branch - a move that could be deemed unconstitutional. In an opinion piece in the Washington Post, law professor IIya Somin argued that “Allowing the executive to impose its own after-the-fact grant conditions...threatens the separation of powers. It goes a long way towards taking control over spending away from Congress and transferring it to the president. This, of course, violates the text of Article I of the Constitution, which clearly gives the power of the purse to the legislature not the executive.” Of course, cities also face legal liabilities and costs when it comes to detainers. A 2012 study revealed that taxpayers in Los Angeles County paid 26 million dollars a year to comply with ICE detainer requests. Courts have also ruled against cities when detainees are held without charge for ICE detainers. In the case of Harvey vs. City of New York, a man was held for 140 days by local law enforcement, much longer than the 48 hours of the ICE detainer. New York had to pay out a settlement of $145,000 in that case.

But the legal implications haven’t stopped the Attorney General or the President from decrying sanctuary policies and using the threat of gang violence to do it. The anti immigrant rhetoric frequently on display during the President’s campaign-style rallies, came out front and center during a White House daily briefing on July 27, when the Acting Director of ICE and the Principal Deputy Attorney General appeared unannounced and railed against sanctuary jurisdictions and the threat of MS-13 gang activity. By citing a litany of enforcement actions and highlighting gruesome criminal activity to journalists who weren’t expecting it, and don’t normally cover these issues, they strategically avoided hard hitting questions on the actual details of the policies and actions they were citing, and this issue certainly deserves some tough questions. Arab American journalist Brian Karem pressed on whether ICE’s continued targeting of undocumented communities, the most frequent victims of MS-13, was counter productive to actually prosecuting and stemming criminal gang activity. The ICE official danced around the question without really answering. He did say ICE doesn’t target victims of crime or conduct community raids. When asked for numbers of MS-13 gang members, he said, “thousands.” When asked how suspected gang members were being identified he declined to give specifics. When asked about significant spikes in ICE arrests for non-criminal aliens, ICE dismissed it as “ridiculous” but added “No population is off the table….Those who enter the country illegally, I’ve said it a hundred times, that is a crime to enter this country illegally.” And when the ICE official was citing a thousand gang-related arrests, surrounded by huge pictures of bare, MS-13 tattooed torsos, not a single journalist was prepared to ask about the details of those arrests which were not dominated by MS-13 members and included a significant number of U.S. citizens. In short, the whole affair was a very scary dog and pony show designed to create fear and gin up anti-immigrant sentiment. In fact, according to an ICE press release in May touting the accomplishments of a six-week anti-gang operation, out of 1378 arrests, 933 were U.S. citizens. In terms of MS-13, only 104 of those arrested were identified as members. Not exactly how the Attorney General or the President are portraying their immigration crackdown.

By claiming that a key purpose of punishing sanctuary cities is to take out a vicious gang, Sessions and Trump are trying to justify deporting immigrants who have lived in the U.S. for years and are contributing to the U.S. economy and culture. A report published by CAP (Center for American Progress) and NILC (National Immigration Law Center) found that sanctuary counties, in comparison to non-sanctuary counties, had an average of 35.5 fewer crimes per 10,000 people. Additionally, unemployment and poverty rates are lower in sanctuary counties and median household income, on average, is $4,353 higher. The data shows that immigrants, even those who are undocumented, are prospering and contributing to the United States.

In using MS-13 as justification for detaining thousands of innocent people, Donald Trump and ICE are perpetrating a dangerous narrative with dangerous consequences. Of the 155,338 people ICE has deported this fiscal year through June 3rd, 45% have never been convicted of a criminal act, DHS admitted. Therefore, by neglecting to mention the non-criminal immigrants they are deporting by the thousands, and instead focusing on the small percentage of MS-13 members they have captured, they are distorting reality and instilling fear in the public.

But no one should be fooled by the administration’s rhetoric regarding MS-13 or even the arrests that are being made. The ACLU (American Civil Liberties Union), ACLU of Northern California, and Cooley LLP recently sued AG Sessions, ICE, and the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) on behalf of immigrant children and their families. Stephen Kang, an attorney with the ACLU Immigrants’ Rights Project said in a recent ACLU statement: “The Office of Refugee Resettlement is accepting wholesale that young immigrants should be kept behind bars because of what they look like or where they come from.”  

The lawsuit accuses police and immigration officers of making arrests based on sports jerseys and play fighting, then taking the children to “distant detention facilities without notice to their parents or lawyers and [where they] were not afforded a chance to challenge the charges against them.” One of the plaintiffs in the case, a 17 year old identified as J.G., said in the ACLU’s press release that “The police and immigration agents are arresting kids because they think they look like gang members, but youth are the future of this country and they have a lot to offer. Don’t judge people by their appearance.”

These children lived in Suffolk County, New York, where President Trump gave a speech to local law enforcement in July, asking them to not “be too nice” when physically handling undocumented immigrants. In the same speech Donald Trump directly addressed undocumented immigrants, threatening, “We will find you, we will arrest you, we will jail you and we will deport you.” Trump’s ‘us vs. them’ attitude further isolates disenfranchised immigrant communities.  

While there are serious questions about the real focus of this crackdown, we only need to look to our own community for further proof of just how broad and devastating these roundups are. Nearly 200 Iraqi Americans, many from the Chaldean community around Detroit, were rounded up by ICE agents in May and June and sent to a correctional center while they awaited deportation.  The Arab American News reported that at a protest for these deportations, Salem Jiddou, an engineer, said: “They were punished, they served their term in jail...Now, after 20 years of being good citizens, we are sending them to Iraq to die. What human rights is that?” While stereotyping and bias is being used to justify a wide-ranging crackdown on undocumented immigrants, many other immigrants, some with U.S. born children and successful lives, are being swept up. In the case of these 200 Arab Americans, they have been given a temporary lifeline in the form of an injunction. One wonders how many other immigrants of the estimated 40,000 sitting in detention on any given day would get a similar lifeline if their cases got a fair review. If more people begin to ask the tough questions needed, we may have a chance to find out. If not, the scary soundbites will continue to dominate the conversation and our immigration policy.

Celia Katz-Zogby is a 2017 summer intern at the Arab American Institute.