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ON THIN ICE: How US Immigration & Customs Enforcement agency went from hope to hopeless

The agency, which was formed after the 9/11 attacks to protect America's security, has been accused of being politicized and radicalized, especially in the Donald Trump era
The US Immigration and Customs Enforcement authorities have come under the scanner over their less-than-friendly handling of migrants, especially women, including the pregnant ones (Getty Images)
The US Immigration and Customs Enforcement authorities have come under the scanner over their less-than-friendly handling of migrants, especially women, including the pregnant ones (Getty Images)

The US Immigration and Customs Enforcement (ICE), the US government's federal deportation agency, has been making headlines for all wrong reasons ever since Joe Biden took over as the president. As the Democratic president has vowed to reverse the immigration policies that his predecessor Donald Trump had pursued and taken steps to make radical changes on the ground with help of bodies like ICE and Customs and Border Protection (CBP), the controversies surrounding the issue have only multiplied.

As more and more migrants have thronged the southern borders hoping to get an entry into the US under a less strict administration, the possibilities of the Covid-19 pandemic spreading further have seriously gone up. As thousands of people are being put into detention, the ICE has been accused as a super-spreader. A report in Scientific American has alleged the continued detention of immigrants in the ICE detention centers has worsened the Covid-19 situation in the country. Apart from the lives of the immigrants, detention center staff members and local communities too have been endangered by the pandemic. As of February 2021, nearly 10,000 ICE detainees and staff members had tested positive for Corvid-19. America has more than 32 million positive cases and a death toll of 577,000 plus, the most for any country in the world. From hope, the ICE has gone more towards hopelessness.


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ICE Director Nominee Ed Gonzalez (Harris County Sheriff's Office) and President Joe Biden (Getty Images)

Biden’s pick as ICE agency head also stirred controversy

The agency has seen the controversy around it being fueled by President Biden picking Ed Gonzalez, a Texas sheriff, to lead the ICE agency. Gonzalez, who has served Harris County, Texas’s most populous county, is a critic of the previous administration’s immigration raids. Dan Stein, president of the Federation for American Immigration Reform, slammed the decision to pick Gonzalez as the head of the ICE agency, saying: “As part of his unrelenting assault on the integrity of our immigration enforcement system, President Biden has chosen a staunch opponent of interior immigration enforcement to lead the Immigration and Customs Enforcement (ICE) agency. Harris County (Texas) Sheriff Ed Gonzalez will bring the sort of contempt for enforcement of immigration laws in the interior of the country…” Stein added: “As sheriff, Gonzalez ended cooperative agreements between Harris County and ICE, making it more difficult for ICE to do its job protecting the safety of the American public and enforcing U.S. immigration laws.”

ICE’s politicization, radicalization:

The ICE is not a very old body. It was set up under the Homeland Security Act of 2002, months after the horrendous terror attacks of 9/11. Also with the establishment of the Department of Homeland Security (DHS), the functions of several border and revenue enforcement agencies were combined into ICE. The ICE is the DHS’s largest investigative arm and the second-largest contributor to the FBI’s Joint Terrorism Task Force. The ICE’s mission, as per its website, is “to protect America from cross-border crime and illegal immigration that threaten national security and public safety”.

However, the agency was found to be politicized ahead of the 2016 presidential election. The agency’s employees through their union endorsed Trump’s candidacy in September 2016, something which was witnessed for the first time. After the Republican emerged victorious in the election, “the soon-to-be-named head of ICE triumphantly declared that it would finally have the backing of a president who would let the agency do its job,” the Atlantic reported in September 2018. He’s “taking the handcuffs off,” Thomas Homan, who served as ICE’s acting director under Trump till June 2018, said. The Atlantic also cited a former ICE official as saying that when Trump won the election, some officers “thumped their chest as if they had just won the Super Bowl”.

'Trump ended ICE's relative autonomy'

Detailing further the ICE’s transformation in the Trump era, The Atlantic article penned by Franklin Foer said: “Whatever else Trump has accomplished for ICE, he has ended its relative anonymity. His administration’s “zero tolerance” immigration regime has triggered a noisy debate about the organizations he has deployed to enforce his policies. For weeks this spring, the nation watched as officers took children from their parents after they had crossed the U.S.–Mexico border in search of asylum. Although ICE played only a supporting role in the family-separation debacle—the task was performed principally by U.S. Customs and Border Protection—the agency has emerged as a shorthand for what critics say is wrong with Trump’s immigration agenda. Virtually every Democratic politician hoping to flash his or her progressive bona fides has called for ICE’s abolition”.

Foer also critically reviewed the ICE’s setting up after the 9/11 attacks. “But following the shock of 9/11, ice was created as part of the Department of Homeland Security, into which Congress awkwardly stuffed a slew of previously unrelated executive-branch agencies: the Secret Service, the Transportation Security Administration, the Coast Guard. Upon its creation, DHS became the third-largest of all Cabinet departments, and its assembly could be generously described as higgledy-piggledy,” he said, adding that the ICE is a clear example of how “muddled, heavily politicized policy making” could lead.

Biden’s unclear stand on ICE:

While several Democrats had sought the abolition of the ICE in the days of Trump in the wake of the inhumane treatment of the families of the migrants, President Biden has been less clear about it. Last week, he faced a backlash from immigration protesters who shouted “Abolish ICE” at a drive-in rally near Atlanta. Biden said he was in agreement with some of the protesters’ grievances and even asked them for a time period of five days to find a solution, he later told the media that he was only “teasing them”.

In January, Biden signed an executive order that asked the Department of Justice to conclude its contracts with private prisons but the DHS, which uses private detention centers for illegal immigrants, was outside its purview.

Tae Johnson, acting director of US Immigration and Customs Enforcement (ICE website)

Why ICE has had only 'acting' directors since 2017

One significant aspect of ICE is that the agency has been led by acting directors, especially since 2017 when Trump assumed office. In January 2019, the former president conceded that he liked people who served in the capacity of “acting” instead of full-timers. He said it gave him more flexibility. The Trump years saw frequent entry and exit of officials in his administration, sometimes being fired or sometimes through resignation. Things didn’t change even when the country witnessed emergency situations like that in the southern border but heads kept on rolling in key departments like home security and defense. The ICE’s director is a civilian official in the DHS and the current post-holder is Tae Johnson, who is also an acting one, and is in charge since January 2021. He replaced Jonathan Fahey, also an acting director who quit abruptly after serving just a few weeks. Johnson was Fahey’s deputy and currently is the fourth acting director since August last year. The last director of the ICE who was confirmed by the Senate is Sarah Saldana who departed in January 2017, when Trump took over.

Former president Donald Trump (Getty Images)

ICE’s forced sterilization controversy:

In September last year, the ICE came under the scanner after a shocking report claimed that immigration women were being made to undergo sterilization at the detention centers without their consent. The claims earned the agency a wide backlash and comparisons were even drawn to Nazi sterilization campaigns. The American Civil Liberties Union (ACLU) said in a report that the revelations reflected “a long pattern in the United States of the coerced sterilization of marginalized populations, particularly of Black, Latinx, and Indigenous peoples”. “In fact, the Nazi’s borrowed ideas for their sterilization regimen from eugenic sterilization laws adopted in the U.S. in the early 20th century,” it added.

US has a history of forced sterilization:

The ACLU piece said both public and private actors in America have over the years, targeted the poor, the disabled, immigrants and racial minorities for forced sterilization. “Spurred by the eugenics movement popular at the turn of the century, states enacted laws beginning in 1907 that authorized the sterilization of the “feebleminded.” More than 60,000 coercive sterilizations were performed throughout the U.S. pursuant to these eugenics laws. In Buck v. Bell (1927), the Supreme Court legitimized early 20th century eugenic sterilization practices with Oliver Wendell Holmes’ notorious declaration: “Three generations of imbeciles are enough”,” it added.

It also said that it was only after Nazi Germany adopted American eugenic theory and practice that public opinion about eugenics changed in the US. The ACLU piece further added that while support for eugenics-based sterilization laws waned over the years, its need again became prominent after the Second World War with concerns over population control, immigration and welfare costs and the marginalized people were being targeted again. By the 1960s, a new era of forced sterilization started and the poor, immigrants and people of color became the targets.

Pregnant women sit with their families while waiting to board a U.S. Customs and Border Protection bus to an immigrant processing center after crossing the border from Mexico on April 13, 2021 in La Joya, Texas. (Getty Images)

In the days of the Trump presidency, the situation at the border also deteriorated with the migrants facing harsh treatments. In 2018, Trump reversed a Barack Obama-time policy whereby pregnant women were exempted from detention. ICE officials started making a “case-by-case determination” about whether pregnant women should be detained, Reuters reported. The next year, the ACLU of San Diego & Imperial Counties and ACLU of Texas Border Rights Center filed a number of administrative complaints to the DHS’s Office of Inspector General after talking to over 100 people after they were released from CBP custody. While one woman alleged that she was repeatedly slammed against a chain-link fence by a Border Patrol official, another said she suffered a miscarriage while being detained in a Border Patrol facility for 12 days. Yet, she was denied medical care.

The ACLU report said citing other reports: “Numerous pregnant women detained by Border Patrol recounted being told by officers to get abortions, all while being held in crowded, unsanitary facilities with little access to food or water. Medical attention for these women was often delayed or denied, all while they endured verbal abuse. This neglect and mistreatment has devastating results: During the first two years of the Trump administration, the number of undocumented women who miscarried while in government detention nearly doubled.”

The ICE is meant to protect the US but on the ground, it has been seen that the country’s immigration detention system, of which the agency is a part, regularly tortures and traumatizes and even kills (Total number of ICE deaths in fiscal 2020 is 17, making it the highest total since 2006,) them. Should the ICE and CBP be defunded? It is a question doing the rounds among those who care for human rights and dignity. But will Biden care?