Abolishing ICE Is Only The First Step

I sit down on a cold, circular steel stool jutting out of from the wall. To my left, someone has chipped away the hospital green paint to etch “Jail :(”. The room I’m in is at the end of a concrete hallway, marked only by tiny arrows, and consists of a row of windows with phones and stools behind them. Through the windows, I can make out very little of the I Module at the Theo Lacy Facility in Orange, CA, just the stairs, and the darkened glass of the guards’ booth below. I speak to these guards via an intercom on the wall. Pressing the button gives no indication whether the intercom is working. I often stand there stupidly repeating, “Hello? Hello?” until a voice eventually responds. I give the name of the person I’m there to see, and I wait.

This is the attorney booth, but it is also used for personal visits on public visiting days. I once found a diaper in here. Today, the room is silent. Edgar,[1] the person I’m here to do an intake for, arrives and sits opposite me. He takes the receiver of the phone on his side of the glass. I take up mine, and we speak.

For the past three years, I have regularly visited as many as four jails in Southern California to meet with detained immigrants and to provide either some basic legal advice, or to accept their cases, or to find volunteer attorneys for them. Detention has a bureaucratic ring to it—and indeed, when a person is imprisoned while going through deportation proceedings, he is, in theory, held only for the administrative convenience of the federal government, and not for punishment. This technicality is lost on the people who are held in county jails and private prisons for months and years, many without any kind of bond hearing.

That immigration proceedings are civil, and that detention is not considered to be punitive, are features of our immigration system that have important legal ramifications. They effectively deprive detainees of two of the first 10 amendments to the Constitution: the Sixth and the Eighth. The Sixth entitles you to a lawyer only in a criminal proceeding. The Eighth applies only to cruel and unusual punishment. This is why the limited services that non-profit attorneys provide are so important, even though they can feel like the world’s most inadequate Band-Aid. I might be the only non-ICE attorney (ICE gets a lawyer in every deportation proceeding, though most immigrants are unrepresented) with whom many detained individuals speak. In fact, I might be the only person an individual speaks to who is not detained with him or trying to deport him. I am here on this particular day, for this particular person, because his wife called our organization, desperate for legal help, for anything that might help her husband avoid deportation.

Most forms of relief from deportation are rooted in pain. Asylum, withholding of removal, and protection under the Convention Against Torture (CAT) are all based in trauma and fear. For protection under CAT, a person must show that it is likelier than not that he will be tortured if he is returned to his country of origin. U Visas, meanwhile, are for those who “have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity” and who cooperate with law enforcement. There is a cap of 10,000 of these visas per year, and any additional applications must go on a waitlist; there are currently 117,738 applications pending, and an applicant can be deported before she receives a decision. Another potential form of relief is cancellation of removal for non-permanent residents, but only if the person meets stringent prerequisites and can show that his deportation would result in “exceptional and extremely unusual hardship” to his U.S. citizen or permanent resident immediate family, a nearly impossible standard to meet.

This last requirement leads to some of the most terrible conversations I’ve ever had: “Yes, your family needs you, and your children need you, and they would be devastated by your deportation, but you have to prove that they would be harmed beyond the normal pain of permanent separation.” I’ve had to tell people that, legally speaking, their family members’ pain doesn’t count because those family members are not immediate, or because they’re not U.S. citizens or permanent residents. Another terrible conversation: While it’s rational to fear exile to a country you do not remember, or because its murder rate is among the highest in the world, those fears are not enough for asylum. Relief comes only from cruelly specific suffering.

When I do an intake, I use a form. As I go through the questions, a sort of decision tree forms in my head as the answers to my questions either close off or open up potential types of relief from deportation my interviewee might be eligible for. The tree for Edgar is foreshortened; for him, proceedings have essentially concluded. However, my job doesn’t end when I have determined that a person has no avenue to relief. Because immigration is a federal system, people can be detained anywhere convenient for the government, and thus, most detention centers are remote, miles from the families of the people held within. For some, I might be the only available outlet. Listening, expressing empathy, attempting to provide comfort or encouragement—this is an unwritten part of my job, the one they don’t teach in law school.

Edgar asks me a few things about his case, but he knows he has little hope. What Edgar really wants to know, the question tormenting him, is how he can hug his young son goodbye. Edgar describes their visit, likely in the very booth we sit in now.

“My son is four. He doesn’t understand why I’m in here. He kept asking me why I couldn’t jump the glass. ‘Be like Superman, Daddy! Jump the glass!’ But I’m not Superman. I’m not Superman. I can’t jump the glass.”

Edgar weeps. He tells me he thinks his son will never forgive him for being deported, and that he just wants to hold him one more time, to make sure his son knows he loves him. Just as Edgar knows that he has little hope of avoiding deportation, he also knows that, once deported, it is unlikely he’ll ever see his son again. Edgar’s country of origin is El Salvador. His wife, who has DACA, was born in Mexico. She cannot leave the United States, because if she does, she cannot return. There is no guarantee that she could go to El Salvador, or, once there, that she could stay. Each member of the family has a different citizenship, which leaves the family, as a whole, without a country.

I call the Sheriff’s Department and ask about a contact visit—a visit where the separating glass partition is removed. The answer: Contact visits are not permitted due to security concerns. I argue with the officer. The facility is a county jail, and was designed to hold people for no more than a year. Meanwhile, ICE detainees are sometimes held indefinitely and, like Edgar, may never see their families again. Surely the no-contact policy does not apply in these circumstances (though horrifying in all circumstances)? Surely it does not apply to people who are merely there for the convenience of the federal government? It turns out that it does.

I cannot tell you what it is like to be in immigration detention. In fact, I hesitate to write this article, because it’s not my voice you most need to hear—but sometimes bearing witness is all you can do. What I can tell you is that men in Theo Lacy are held in their cells all day. I can tell you that outgoing phone calls are exorbitant. I can tell you that it seems like the facilities pass out anti-depressants and sleeping pills like candy. I can tell you that suicide is a leading cause of death in detention. I can tell you that I have not had a single client who did not cry for their family, whatever form that family took.

Though the recent separations of children from parents at the border have been truly heinous, it’s important to understand that these separations are only the tip of the iceberg when it comes to the families that U.S. immigration policy has ripped apart in this country—not just now under Trump, but under previous Democratic and Republican presidencies as well. The truth is that all immigration detention is family separation. All deportation is family separation. Family separation is not an anomaly that only occurs when Donald Trump or Jeff Sessions is pulling the strings, but rather the inevitable consequence of a cruel immigration system functioning exactly as its legal architects intended.

Family separation doesn’t just happen when children are taken from parents at the border. It happens when ICE or CBP conducts raids in the interior, snatching parents from their workplaces or homes. Family separation doesn’t just affect mothers and children, or fathers and children. Family separation happens when a son or a brother or an uncle or a cousin is detained or deported. And no matter how many racist and dehumanizing statements the Trump Administration or the ICE press office makes about “criminal aliens,” family separation happens when the person detained or deported has a criminal record. For that matter, family separation happens when people must wait years for visas to become available to come here to join their loved ones.

Seeing people mobilizing and marching to protest family separation at the border has moved me, as has the spread of #AbolishICE. I am both heartened and surprised to see Democratic politicians likewise adopt Abolish ICE as a rallying cry and campaign slogan. I am heartened because the party appears to be responding to grassroots activists. I am surprised, because the Democratic Party presided over the deportation of 203,674 people in 2014, and 193,217 people the year before, to take but two examples. Each year, we deport a population nearly equal to that of Salt Lake City. Over the past 10 years, we’ve deported the equivalent of the entire population of Hawai‘i. (Those deportation numbers, incidentally, reflect people who have been deported after moving through our immigration court system, and do not include the number of people immediately deported at the border by Customs and Border Protection, CBP. Many more thousands of people receive expedited orders of removal without ever seeing an immigration judge.) This mass expulsion did not occur over the objection of Democrats, but was instead facilitated by programs they created and legislation they championed.

Given this history, I am surprised at Democrats’ adoption of Abolish ICE, but it would be counterproductive to impose a purity test on anyone now rallying to the cause. On the contrary, I hope Abolish ICE spreads further beyond the progressive wing of the party. I fear, though, that focusing on the agency obscures the real message behind the hashtag, which is not about merely scrapping a single agency, but about a total abolition of our immigration enforcement system as it presently exists. This is the goal that activists have been fighting for, often at great personal risk, for years.

One of the groups of grassroots activists fighting for abolition is Mijente, which grew out of the #Not1More campaign aimed at ending all deportations. Mijente has issued a policy platform “for beyond the Trump era,” the very first demand of which is to abolish ICE. When Mijente proposes to abolish ICE, what they are proposing is a moratorium on deportations, an end to all detention, and to transform CBP from an enforcement agency into one that offers humanitarian aid. For others, however, “Abolish ICE” means that we should simply return to the state of immigration enforcement that existed before ICE was created in 2003, when it was the Immigration and Naturalization Service (INS) who detained and deported people, i.e., separated families. People who say or post or Tweet #AbolishICE all seem to agree that we should not have an unaccountable, militarized police force dedicated to civil immigration enforcement. (Incidentally, where’s our #AbolishCBP hashtag? They’re the agency actually executing the policy of pulling children from parents at the border. They’re the agency that throws people who present themselves at the border into hieleras,—“ice boxes”— freezing concrete rooms that intimidate asylum seekers into giving up their claims. Recently, they shot a fleeing young woman in the back.) But there is a lot more to our immigration enforcement machine than ICE, and I fear that when many politicians use the slogan, what they are actually saying is “abolish ICE, but NOT immigration detention, NOT absurdly few avenues to relief, NOT draconian immigration consequences for convictions, NOT ridiculously low visa numbers, NOT intentional backlogs, NOT a militarized border, NOT a dysfunctional court system–all that is fine.”

It’s not just ICE that ripped Edgar from his son, and it’s not just ICE we must abolish. Mijente anticipates push-back against the abolitionist position in their very platform: “Maybe you’re not used to seeing such bold demands emerge from our side…” Perhaps this is because these bold demands are rooted in an understanding of our immigration system as having always been a product and tool of white nationalism. This is an understanding borne out by history: The first immigration law was the Chinese Exclusion Act. The Immigration Act of 1924 set quotas for each country in the world based on and in order to try to revert to the racial makeup that existed in 1890. And though the Hart-Celler Act of 1965 made every nation’s quota the same, the effect of that equalization is to give Sweden the same amount of visas as Mexico. Facial equality is not equity in immigration. Citizens of wealthy, predominately white countries can immigrate quickly, while people from Mexico, the Philippines, China, and India must wait decades. Truly abolishing ICE requires acknowledging this history. It requires re-envisioning not just our legal system, but also our nation.

But—and this is critical—we do not have to complete that re-envisioning before we abolish ICE. We do not need to solve every policy problem in order to recognize that the current approach is unconscionably wrong. Mijente anticipates that people will find their platform ridiculous. But what’s truly ridiculous was the position adopted by the proponents of comprehensive immigration reform during the last round of attempted legislation, in 2013. They claimed that they could end illegal immigration once and for all by simultaneously ramping up enforcement (both at the border and in the interior), and enacting a legalization program for certain undocumented people present in the country. Apart from the inhumanity inherent to draconian enforcement controls, the idea that we could freeze migration if we just hit on the right balance of those two factors is simply absurd. Migration is a global phenomenon controlled by forces far greater than what can be encapsulated in a piece of legislation. Mijente’s proposal, by contrast, is eminently reasonable. Want to end illegal immigration? Make migration legal.

Abolishing ICE is an urgent and necessary step, but it cannot be the outer limit of our imagination. We must create a country that will hold a family together.

[1] Not his real name.

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