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A Moderate Two-Point Plan for Reducing ICE’s Power

Summary:
The abolish ICE movement is spreading among mostly left-wing activists and politicians after the revelation of mass family separations along the U.S. border.  Immigration and Customs Enforcement (ICE) is the federal agency charged with enforcing immigration laws in the interior of the United States, not along the border, but public anger is focusing on them regardless.  Senator Elizabeth Warren (D-MA) said, “The president’s deeply immoral actions have made it obvious we need to rebuild our immigration system from top to bottom starting by replacing ICE with something that reflects our morality and that works.”  Senator Kirsten Gillibrand (D-NY) said, “I believe you should get rid of it, start over, reimagine it and build something that actually works.” Many are attempting to portray

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The abolish ICE movement is spreading among mostly left-wing activists and politicians after the revelation of mass family separations along the U.S. border.  Immigration and Customs Enforcement (ICE) is the federal agency charged with enforcing immigration laws in the interior of the United States, not along the border, but public anger is focusing on them regardless.  Senator Elizabeth Warren (D-MA) said, “The president’s deeply immoral actions have made it obvious we need to rebuild our immigration system from top to bottom starting by replacing ICE with something that reflects our morality and that works.”  Senator Kirsten Gillibrand (D-NY) said, “I believe you should get rid of it, start over, reimagine it and build something that actually works.”

Many are attempting to portray the abolish ICE movement as a shadow campaign for open borders but, as those statements above show, it is largely political grandstanding without much substance yet.  Senator Richard Blumenthal (D-CT) is correct that abolishing ICE without changing policies wouldn’t accomplish much.  ICE was established in 2003 under the Department of Homeland Security (DHS) as part of the government’s post-9/11 reorganization.  The government deported illegal immigrants from the interior of the United States prior to 2003.  There is not much point in abolishing ICE if another government agency then gains the same power.  Furthermore, untangling ICE from the rest of DHS can be tricky without wholesale reform.   

If the goal is to limit interior immigration enforcement to serious criminals and remove the constant fear felt by otherwise law-abiding illegal immigrants, their American families, and businesses in the United States then there are two legal reforms that will functionally abolish ICE without disbanding the agency.  The first is to reform immigration law to change all crimes into civil offenses.  The second is to reorganize Homeland Security Investigations (HSI) by giving it some of the responsibility of Enforcement and Removal Operations (ERO) and then abolishing the latter agency.  Both reforms will substantially weaken interior immigration enforcement for non-criminals and abolish the worst part of ICE without removing its ability to deport serious criminals and national security threats. 

Abolish Immigration Crimes

Most violations of immigration law are civil offenses that are “remedied” through deportation.  Criminal offenses are punished with jail time and fines.  However, there are some immigration crimes like illegal entry that are misdemeanors with potential jail time as punishment.  Previous Congresses did not consider these crimes to be serious as they are only misdemeanors but, nonetheless, the people who violate them are criminals.  Transforming all criminal immigration offenses, or at least as many as possible, into civil violations guts much of the political rationale for cracking down on illegal immigration.  If none of them are criminal violators of immigration law then the arguments for sending ICE into their communities to harass them diminishes greatly.  This reform also will not prevent the deportation of illegal immigrants who commit other serious crimes. 

Abolish ERO and Revamp HSI

HSI investigates and enforces the most serious criminal violations committed by illegal immigrants and others in the United States involving national security and transnational crime.  ERO mostly partners with the Border Patrol and local law enforcement agencies to apprehend illegal immigrants who haven’t committed crimes worthy of the name.  Two-thirds of ERO’s arrests are for non-criminal offenses and victimless crimes while only 15.4 percent are for violent or property criminals and another 18.8 percent are for crimes with possible victims. 

ERO’s responsibility for apprehending and removing the one-third of its arrests who have committed crimes (broadest definition) should be transferred to HSI.  Thus, part of the resources allocated to ERO every year should be transferred to HSI.  Congress should then abolish ERO and claim a major victory against arbitrary and capricious enforcement of immigration laws.

This reorganization will focus immigration enforcement on criminals and national security threats.  Even better, it will give its proponents the cover to say that they have abolished ICE without removing its ability to deport serious criminals and to lift the specter of harsh immigration enforcement on otherwise law-abiding communities.  

Conclusion

Members of DHS have proposed spinning off HSI and ERO into different agencies because of their largely different responsibilities.  Those DHS bureaucrats believe that ERO’s bad reputation is hindering the ability of HSI to fulfill its more important mission.  The reform I propose above would accomplish the overall goal of protecting HSI’s important work, a DHS goal, while also offering up a bureaucratic sacrifice in the form of a disbanded ERO.  Combined with replacing all criminal immigration violations with civil infractions, these two reforms would largely accomplish the goals of the abolish ICE movement without the difficulty of abolishing ICE.  

Alex Nowrasteh
He is an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity. His popular publications have appeared in the Wall Street Journal, USA Today, the Washington Post, the Houston Chronicle, the Los Angeles Times, the New York Post, and elsewhere. His academic publications have appeared in the Journal of Economic Behavior and Organization, the Fletcher Security Review, and Public Choice.

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