There is a lot of public attention to border and immigration issues today, especially surrounding the enforcement of laws that govern the deportation of individuals alleged to be in the country illegally. At the center of much of this controversy is an organization referred to as ICE. But just what is ICE and why is its work so controversial?
The Immigration and Customs Enforcement Agency (ICE) is a division of the Department of Homeland Security (DHS). It was created by the Homeland Security Act of 2002, following the 9/11 attack. Since then, it has been responsible for enforcing federal laws governing customs, trade, and immigration.
ICE’s stated mission is to preserve American security and public safety, mainly within US borders, by enforcing immigration laws. It does this primarily by detaining, deporting, and convicting unauthorized immigrants. It also assists international investigations into criminal gang activity, sex trafficking and terrorist networks that threaten to exploit US customs and immigration laws. This mission was underscored in the most recent Presidential election in which border control served as a key issue.
But the recent expansion of ICE activities has since sparked national protests by some who argue that this expansion has outpaced accountability, and that the enforcement practices employed are heavy handed, or worse yet, racist. Legal and constitutional issues exist, ICE opponents insist, surrounding the tactics used by ICE agents, such as entering homes without valid, judge-signed warrants and conducting alleged improper searches and seizures.
The recent fatal shootings of Renee Nicole Good and Alex Pretti in Minneapolis stoked the fires of these protests, and added increased tension between a citizen’s exercise of free speech and the limits of such expression when it interferes with law enforcement.
When it comes to ICE’s powers to carry out its mission, these differ in many respects from traditional law enforcement agencies. Agents can lawfully detain US citizens in limited circumstances, such as if a person interferes with an arrest, assaults an officer, or ICE agents suspect the person of being in the country illegally. ICE’s use of force is governed by a combination of the US Constitution, US law and DHS’s own guidelines.
The US Supreme Court has historically granted very broad leniency to law enforcement making so-called “in-the-moment” decisions without the benefit of hindsight. And the Court would likely be deferential to DHS’s policy that ICE officers “may use deadly force only when necessary” and they have a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily injury to themselves or another person.
Protests at the national level have a way to trickling down to various institutions in our society. Recently, I received a request for legal assistance to a family of a child in public school in Atlanta. The school and its faculty encouraged students to engage in a school-wide protest of ICE. The event took place on school grounds, and those students who refused to take part were ostracized and isolated. I advised the family that this type of coercive, government-sponsored speech, violated their children’s constitutional rights. Such school-based coercion is unconstitutional based on West Virginia State Board of Education v. Barnette, in which the Supreme Court invalidated a requirement that school children salute the flag and recite the pledge.
A West Chicago elementary school teacher was recently placed on administrative leave because he posted on his social media a statement supporting the work of ICE. Shortly after the post became public, activists in the predominantly Hispanic section of the city began sharing it and defaming the teacher as a racist and calling for his termination.
The right of free expression, particularly on issues of national importance, is vital to our democracy. This includes the right of peaceful protest against perceived abuse by any governmental agency. But when such speech resorts to the use of violence or to defaming the reputations of those who may hold opposing views, it exceeds its protected purpose and may be subject to civil or even criminal sanctions.
—Larry L. Crain, Esq.
www.crainlaw.legal
