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American Bar Association - Defending Liberty, Pursuing Justice

 

Vol. 15, No. 3

EMPLOYMENT LAW

Features

 

Immigration and Customs Enforcement (ICE)

Immigration and Customs Enforcement (ICE) was established in 2003 after the Homeland Security Act of 2002 and is one of several agencies that was formed when the Immigration and Naturalization Service (INS) was broken up. ICE has assumed responsibility for functions that were previously performed by elements within United States Customs Service (Treasury), Immigration and Naturalization Service (Justice), and Federal Protective Service. ICE’s mission is to protect national security by enforcing our nation’s customs and immigration laws. In furtherance of that mission, ICE has five operational divisions, Federal Protective Service (FPS), which protects federal properties; the Office of Intelligence, which receives intelligence information from and provides actionable leads and intelligence products to ICE; the Office of Investigations (OI), which investigates issues that may threaten national security; the Office of International Affairs (OIA), which is responsible for conducting and coordinating international investigations involving transnational criminal organizations and serving as ICE’s liaison to counterparts in local government and law enforcement; and the Detention and Removal Office (DRO), which is responsible for ensuring the departure from the United States of all removable aliens through enforcement of U.S. immigration laws. A detailed discussion of even one of these divisions is beyond the scope or this article, which is intended as an overview. The office that is most directly involved with immigration law is the Detention and Removal Office—the focus of this article.

The Detention and Removal Office (DRO) is intended to remove all deportable aliens from the United States. To accomplish this mission, the DRO must first identify potentially removable aliens, then process the aliens through the immigration court system, and finally must actually remove those aliens who are found to be removable. Additionally, some aliens must be detained to ensure their departure. Although ICE is involved in investigating criminal activity, some of which is extremely serious, ICE detention for an immigration violation is a civil, rather than criminal, detention since most immigration violations (such as status violations and overstays) are not crimes.

The DRO utilizes various sources to identify aliens who are potentially removable. Since removable aliens who have been convicted of crimes are a high priority, the DRO monitors court proceedings and conviction records and will place an immigration hold on an alien under certain circumstances. Many aliens have borrowed money, mortgaged property, or sold assets to place bail in a criminal case, only to discover that they cannot be released due to a pending immigration hold. Other sources of information regarding potentially removable aliens include referrals from other governmental entities, raids, and information gathered from other aliens.

Once an alien is identified as potentially removable a notice to appear (NTA) is issued and filed with the immigration court. Once filed with the immigration court, the alien is then in removal proceedings and a court date is set. (Technically, the date and time is supposed to be stated on the NTA but that is a rule that is frequently breached.)

ICE trial attorneys then represent the government in removal proceedings in an effort to ensure that removable aliens are issued removal orders. The immigration proceedings are presided over by an immigration judge who is an employee of the Executive Office of Immigration Review (EOIR), which has remained part of the Department of Justice and is, therefore, not part of ICE or even the Department of Homeland Security.

Frequently, aliens who are ordered removed fail to leave and some aliens need to be detained to ensure their departure. Detention is an area that has been getting tremendous attention and much criticism recently. ICE currently maintains more than 32,000 detention beds that are spread over approximately 350 facilities, most of which were designed for criminal, rather than civil, detention. Most of these facilities are not operated by ICE. It has recently become apparent that ICE has understated the number of alien deaths that have occurred while in ICE custody. It’s even come to light that ICE has detained U.S. citizens.

Prior to a Freedom of Information Act (FOIA) request by the American Civil Liberties Union, it was nearly impossible to get a clear figure on detainee deaths and the best estimates were approximately 20 deaths while in ICE custody since 2003. The agency initially said that it was aware of 62 detention deaths since 2004. Then, in the spring of 2009, ICE reported to Congress that there had been 90 individuals who have died while in ICE custody since October 2003. ICE recently revised these figures to indicate that, in fact, 104 people had died while in ICE custody since October 2003. On August 14, 2009, a 24-year-old Ethiopian committed suicide while in ICE custody. The next day, ICE announced that after a careful review of its records, ICE identified 10 individuals who died while in ICE custody whose deaths had not been reported on previous lists. As a result, Assistant Secretary John Morton ordered an agency-wide review to ensure the integrity of ICE records on detainee deaths.

Jim Mills is a practicing attorney and the supervising immigration attorney for Catholic Charities, Diocese of Venice, FL. Contact him at jdmillsesq@gmail.com.

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