ICE, What Part of Unconstitutional Do You Not Understand?

Immigration and Customs Enforcement (ICE) has a new director, Sarah Saldaña, but she made it apparent on Thursday that the agency is stuck making the same old mistakes. And the timing couldn't be worse.
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Immigration and Customs Enforcement (ICE) has a new director, Sarah Saldaña, but she made it apparent on Thursday that the agency is stuck making the same old mistakes.

As she testified before a Congressional Committee, Director Saldaña had an opportunity to oppose anti-immigrant policies that violate the Fourth Amendment of the Constitution, undermine civil rights, and hurt public safety.

But she blew it.

When asked by a Congress member whether she would support a law that would force local law enforcement to detain immigrants for extra time, just so they could be deported, Saldaña exclaimed:

"Thank you. Amen. Yes."

Hearing Saldaña's unfortunate uttering of "amen" sent a chill down my spine.

I thought of Martin del Agua, a local father and landscaper in Sacramento who spent three terrifying days away from his wife and young children due to exactly the same kind of immigration hold request that ICE now wishes were mandatory. Martin -- who was wrongfully arrested and subject to excessive force, over a trivial noise complaint -- feared he would never see his family again.

We co-counseled with the law firm Morrison Foerster, and sued the Sacramento Sheriff to hold the department accountable for this unconstitutional detention, which also violated the state's TRUST Act -- and recently won $25,000. While relieved, Martin and his wife Julie, a schoolteacher, remind us: "The pain this incident caused still haunts our family."

How many more families will ICE damage? How many more civil rights violations will it spark?

The fact is, trying to make these detentions mandatory would violate the U.S. Constitution in more ways than one.

Imprisoning people for extra time without due process tramples on fundamental protections against unreasonable search and seizure guaranteed by the Fourth Amendment. And forcing local governments to waste resources carrying out the feds' dirty work violates the Tenth Amendment's separation of powers.

Nearly 300 communities across the nation have already resoundingly rejected these cruel and costly detentions, known as ICE holds or detainers.

In California, Governor Brown signed the landmark TRUST Act in October 2013 to limit holds. A few months later, after a major federal court decision in Oregon found these unjust detentions unconstitutional, about 300 jurisdictions across the nation stopped submitting to the requests entirely, in many cases after years of community organizing.

ICE's parent agency, the Department of Homeland Security, has been forced to publicly acknowledge these problems. Last November, Secretary Jeh Johnson declared the controversial program generating many of the holds ("Secure" Communities or S-Comm) would end, and the holds themselves would be curtailed. He even admitted the S-Comm program's "very name" had become a symbol of hostility to deportation policy.

But Johnson's promises came in the wake of years of failed promises to "fix" S-Comm. Immigrant rights advocates expressed deep skepticism, especially since the deportation program that would replace S-Comm had strikingly similar flaws. New requests from ICE to local law enforcement seeking "notification" when people are released from local custody are still very likely to lead to civil rights violations. As a result, immigrant rights groups have filed a Freedom of Information Act request with the Department of Homeland Security seeking to uncover the truth behind this rebranded program, including such basic questions as when it will begin.

Fast-forward four months, and it's deja vu all over again. There is no transparency around the "new" rebranded S-Comm program. The president's deportation relief programs are temporarily held up. To make matters worse, ICE just executed a round of terrifying raids picking up over two thousand people, including pastors, moms, and businesspeople who may have had convictions years or decades ago, but contribute deeply to their communities.

And Director Saldaña's testimony suggests that once again, ICE is misleading local governments and the public. That, or Director Saldaña is going rogue.

The timing couldn't be worse. For immigrants and their families, drafting local police into the role of deportation agents adds yet another layer of mistrust to the fraught relationship between law enforcement and communities of color. This comes as the nation has become increasingly aware of officer-involved shootings, racial profiling, and other mistreatment -- particularly targeting African-American communities, and other communities of color as well.

Ironically, the White House's Task Force on 21st Century Policing recommended curtailing the very type of collaboration that ICE wishes it could lock into law. Many law enforcement leaders have made it clear they don't want this entanglement.

If there's anything that deserves an "amen," it's that state and local governments must continue to enact strong protections against ICE's abuses.

Co-authored with Jon Rodney, California Immigrant Policy Center

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