ICE Unshackled

The news stories are already pouring in.  The White House has said, that despite its initial beat-down from the courts in its first travel ban, it wants to take the “shackles off” of immigration officials guarding our borders.  (This is Sean Spicer’s phrase.  An odd backwards metaphor —  law enforcement guys in shackles.  I haven’t seen any.)  Get ready for a run of stories about the poor exercise of enforcement discretion, which our demonized news media should continue to highlight — so we can do our jobs as citizens and speak up.

As we await Round Two of the Trump Travel Ban, hopefully one that someone other than Steve Bannon will have reviewed before being announced, it is clear that Immigration and Customs Enforcement (“ICE”, as if to remind us of its chilling powers), has already begun to reassess how it does its job.  Now, according to one immigration expert, “they’re looking hard for reasons to deny [entry], instead of reasons to admit.”  http://nyti.ms/2mDfxpl  This means a lot of people are going to get mistreated, and it’s not going to be pretty.

Here are a few examples:  A French historian and regular visitor to the United States is stopped at the Houston airport and detained for 10 hours.  He is told that he will be denied entry and put on the next return flight to Paris.  It seems that the ICE agents were unaware of their own rules, that academics coming to give a presentation can in fact come to give a lecture and receive a stipend with only a tourist visa.  Only emergency measures taken by the university hosting the conference saved him from being put on the next flight.  He was released to go to his hotel at 1:00 a.m., no apology given.  Here’s the article:  http://nyti.ms/2mDfxpl

A female Pakistani lawyer for the ACLU, then a lawful permanent resident of the U.S. for more than a decade, is detained at the San Juan Puerto Rico airport upon returning from a work-related trip and aggressively questioned.  She has traveled in and out of the United States for 25 years without incident.  But this time, she is asked questions like:  If the ACLU has the word “American” in it, why do you have to go overseas?  Were your meetings overseas about U.S. laws?  And, incredibly, “do you understand why someone might have a different perspective about you?”  Here’s her first-hand account: http://bit.ly/2lldi9j.  Ironically, she was scheduled to become a citizen the next day, which she did.  No doubt the ceremony came with plenty of irony for her.

Or in today’s paper, a Mexican man in Illinois who entered the country illegally 20 years ago and has since become a pillar of his community, now sits in a Missouri detention facility awaiting deportation, to be separated from his wife and children.  See http://nyti.ms/2lYJ4g8.  This is a man who, in the words of one resident, “may have done more for the people here than this place has ever given him.”

The thread uniting these stories and countless others is the uninformed exercise of discretion.  What the “shackles coming off” really means is that ICE now has license to be skeptical of everyone entering the country, and to round up anyone in their databases, without necessarily prioritizing who are the most important people to be focusing upon.  That DUI from 15 years ago?  You’re a “criminal alien” and it’s time for you to go.  The directive from above to law enforcement is, in essence, “You Don’t Have To Be So Careful Anymore.”

As I often tell my law students, “prosecutorial discretion” is the least understood and best-kept secret in law enforcement.  Prosecutors have huge power over other people’s lives, with very few checks on that power.  Better understood perhaps is the discretion of the police officer.  The person with the badge and the gun doesn’t have to care if you’re worthy of respect or if you know the rules or if you abide by the law — unless his superiors tell him that he has to care.  There is an implicit, and sometimes explicit, zone of interpretation in which law enforcement officers know where they stand.  Within that zone they have freedom.  Outside of it they are on their own and theoretically at risk.  No doubt some have felt “shackled” by the fact that rules trying to make important distinctions can make their job harder.  But this is a large and complex society, and there’s a steep price to pay for making their job easier.

When you hear terms like “law and order,” which has long been understood by African-Americans as code for something quite oppressive, or “shackles coming off,” what it really means the boss is telling the cops that he’ll look the other way.  Toughness, or the perception of toughness, is prioritized over precision, or justice.  Think back to the NYPD under Guiliani:  how does an unarmed man get shot 41 times reaching for his wallet?

You don’t have to be a law professor to see what’s coming: more stories of babies being thrown out with the bathwater.  These stories should be held up for all to see.  Is this really who we want to become?

Lost, for the moment at least, is the fact that prior administrations of both parties have worked hard to fashion rules that have in fact protected us.  Immigrants are not the source of terroristic acts in this country; terrorism here is of the Home Grown variety.  Tim McVeigh, Dylan Roof, some guy at a bar in Kansas who kills a man from India and brags to a friend that he’s just shot two Muslims.  http://nyti.ms/2lZlhfX  The refugees 45 proposes to bar have been extensively vetted and are not going to be the folks causing us further pain.  We have plenty to worry about right here among us, and tougher immigration rules aren’t going to do anything to stop the next Tim McVeigh.  There is a big difference between aggressive but uninformed enforcement and smart, informed enforcement.  One can be tough without being brutish.

To end on a positive note, take a look at the profile of the young woman who just became the first African-American female editor of the Harvard Law Review, Imeime Umana.  http://nyti.ms/2m419cV Her parents are from Nigeria and emigrated to the United States.  So she’s a first generation American, with an African sounding name, making an extraordinary contribution to our country, outshining some very bright lights and committing herself to public interest lawyering after she graduates, despite the riches she could earn elsewhere.  She represents the kind of hope, drive, and persistence that characterizes the immigrant populations that come here seeking a better life.  We’re better off with her here, wouldn’t you say?  Who are we if we say that her type is not welcome here?

People ask: Is American an idea, or an ethnicity?  (See, e.g., http://ti.me/2lHP3oT)   45 and his advisors say that America is an ethnicity.  He has yet to condemn the Kansas shooter, for example, saying only “don’t blame me,” or the Canadian supporter of his who gunned down six Muslims praying in a mosque in Quebec.  In this Master Race view of the world, only White Christians are worthy of mourning when murdered.  Whether we blame him or not, his silence speaks volumes and gives license — and discretion.

But this view will not carry the day.  It will eventually lose out to the Madisonian principle embedded in our Constitution that we are a diverse society of diverse groups and interests, with structures in place to protect everyone from tyranny, including majoritarian tyranny.  This version of America is what is at stake — that America is an idea that has never been tried before on a continental scale.  The success of this version of America matters deeply not just to us but to the human race.

That is why cities and towns all over America are proclaiming themselves to be sanctuary cities.  You can’t lock up all of us.  You can’t deport all of us.  We’re too big and diverse to be an ethno-state like the Confederacy.

In another generation, non-Whites will be a majority here in America, no matter how many people are cruelly excluded or gunned down while having a beer.  The demographics cannot be stopped with walls, or confused ICE agents acting tough, or unfocused deportations.

The next generation of leadership is coming and will overcome this narrow ethno-centric vision of America.  It is going to include women, people of color, and first generation Americans from places we can’t locate on a map.  We will be better for it, as we always have been from the contributions of immigrants.