March 04, 2017

Why You're Entering The Immigration Debate Without The Proper Documents

Or, "The Time Andrew Couldn't Quite Bring Himself To Write A Clickbait Headline"

Let me begin with the requisite disclaimers on a post like this: I don't like Trump, I'm a white guy so probably don't truly understand immigration anyway, and though I worked at a U.S. immigration law firm for two-plus years and therefore have a somewhat unique perspective on the topic, I am by no means an expert. Did I mention I don't like Trump? Okay.

The majority of immigration coverage I've read since Trump got elected has focused, understandably, on Trump's executive order restricting admission for citizens of certain countries, and his more recent order expanding the grounds on which people are targeted for deportation. The majority of that coverage has proceeded, also understandably, by reporting on individuals suffering as a result of those executive orders. But recently I've started to see a tricky flip in those stories, whereby reporters first find an immigrant suffering, and then relate that suffering back to one of Trump's executive orders. As a side note, Wikipedia tells me that this particular logical fallacy is called affirming the consequent, and as another side note, I would like to say that I think Trump's executive orders are bad policies. But that's not actually the point I want to make here.

Since we have a recent and horrific point of comparison in the news, let's talk about that off-duty cop in L.A. who fired his gun at a group of teenagers, in probably (hopefully) the most extreme "get off my lawn" incident in recorded history. Naturally, the protest in response was swift and vocal: fire that damn cop. It's a response that I think we're all pretty used to by now, in stories about police misconduct and brutality; the individual cop is definitely to blame, the "police department" or more vaguely "the system" is probably to blame, but very rarely does the specific head of the police department get apportioned any individual blame. And even when the latter does happen, it's not usually tied to that head of police's political views except maybe as an incidental "all racists are Republican/all Republicans are racist" assumption. (Talk about affirming the consequent!)

That's why I think it's (1) interesting, and (2) a problem that when an Immigration and Customs Enforcement (ICE) raid is conducted illegally, or a Customs and Border Patrol (CBP) officer detains someone without cause, or any other law enforcement officer under the aegis of homeland security does something shitty, we're very rarely treated to the same "fire the cop" argument. We certainly haven't been in any of the immigration stories I've seen since Trump was elected. Instead the implication is always that those officers were mindlessly carrying out the inherently politicised will of the current administration. For example:
The government's decision to remove the 31-year-old father, who has no criminal record and is married to an American citizen, is the latest indication that President Donald Trump's administration plans to deport practically any immigrant here illegally. [...]

"What the president is doing is going after everyone," said David Leopold, an Ohio immigration attorney.
Well, I'm sorry, but bull-honky. Trump didn't personally sit down the ICE officers involved in this case and say, "nope, that guy's out." Neither did anybody in his administration. It's also worth noting that ICE had already initiated removal proceedings against the guy, and an immigration judge had already ordered his deportation, back in 2006, because his mother had let his legal status lapse—and the only reason he was still in the country was because of Obama's executive order granting prosecutorial discretion. We can have a discussion, of course, about the shittiness of the Immigration and Nationality Act's provisions for what happens in a case where a minor's status lapses through no fault of his or her own, but technically the guy was removable under laws passed by congress a long time ago. The fact that ICE decided to enforce those laws now and in this case is undoubtedly a dick move, and I don't dispute that they probably felt empowered to do so by Trump's executive orders, but let's be clear that it was still some asshole ICE officer on a power trip who ultimately made the call, not Donald Trump. Making it about the current administration is like convening a jury to try an accessory after the fact while the murderer keeps going to work every morning.

Also, on the topic, Trump didn't personally call up the ICE agents hanging out in Denver courthouses waiting to sweep up immigrants as they leave their hearings, and say, hey guys, can you do this tremendous thing for me? He certainly didn't sit down and give any orders to the ICE officers who arrested people just to fill quotas in 2013, or the ICE officers who in 2015 struck an off-the-books deal to detain without cause or process suspected immigrants released by Fresno county's sheriff's office, or the ICE officers who lied to immigrants during raids in 2016 so that they could enter private property without a warrant. This isn't an Obama-bashing moment either, though to be clear his record on immigration was equivocal. Obama also didn't have anything to do, I don't think, with the CBP officer who told one of my clients, while I was a paralegal, that trying to enter the country with a green card approval rather than the green card itself—which is quite legal—was "like trying to claim lottery winnings without the ticket." Or the CBP officer who stopped my Canadian citizen friend at the land border during Bush II's administration and questioned her for an hour just because she was born in Iran.

These are all bad cops. They were bad cops before Trump and they will be bad cops after Trump. They also have plenty of colleagues at ICE and CBP who are good cops, and who frankly don't deserve to be tarred by the same brush that people are (rightly) using to discuss Trump's executive orders. The idea that ICE and CBP, which combined have twice as many officers as the NYPD—officers who are dispersed in wildly different communities all across the country—somehow all behave consistently and flip political affiliations automatically every time a new president is elected is, if you think about it, pretty ridiculous. And sure, executive orders can and do set the broad parameters of their activities, but day-to-day the president has pretty much zero oversight or control over what ICE and DHS do. Congress has pretty much zero oversight too—actually, it has too much oversight, in that something like 90+ subcommittees claim oversight, which is why congress has never actually passed annual authorising legislation for the Department of Homeland Security. And that's the real problem. One of the largest (and most powerful!) law enforcement agencies in the country basically sets its own rules and monitors its own performance, and that's by legislative design rather than executive fiat.

So go ahead and keep talking about how shitty Trump's immigration orders are. And go head and keep posting stories of all the shitty stuff ICE does (and largely gets away with) on a regular basis—it's nice that people are finally paying more attention. But let's all be very clear that these are two separate problems, and when it comes to immigration, at least, I think career immigration officers who treat immigrants like crap are the much bigger problem than a blowhard president trying to make good on his outrageous campaign promises.


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