ICE may reform as Biden pick preps for Senate confirmation

Aug. 25, 2021 4 AM PT

WASHINGTON — U.S. Immigration and Customs Enforcement could get its first Senate-confirmed leader in nearly five years this fall — laying the groundwork for change at an agency long criticized for its treatment of immigrants in detention.

ICE faces mounting pressure to make changes as the Senate prepares to vote on President Biden’s nominee, Texas Sheriff Ed Gonzalez, who has long worked with ICE but has also taken a moderate approach to immigration enforcement. Though the Biden administration has already announced new guidelines for the agency, implementing them and other changes will fall to the new director.

The question of what ICE can and should change is complicated. Calls for an overhaul of the agency, nearly two decades old, have come from across the political spectrum and range from more targeted detentions to abolition of the agency itself. The Times spoke with more than a dozen advocates, experts, former detainees, current law enforcement officers, and former ICE officials to hear what kinds of changes they would like to see.

Treatment in detention

For years, the loudest call has been to improve conditions for detained immigrants, most of whom face no criminal charges but are waiting to find out whether they will be allowed to remain in the country.

ICE has two main branches: one that investigates transnational crimes, including human trafficking and money laundering, and another responsible for enforcing immigration law across the nation’s interior. It is the latter — Enforcement and Removal Operations — that has so often sparked controversy.

Last fall, dozens of women reported being subjected to unnecessary medical procedures without their consent by a gynecologist contracted by ICE. In response, Homeland Security Secretary Alejandro N. Mayorkas announced plans to close two ICE detention centers, including the Georgia facility where the medical accusations came to light.

ICE has also faced allegations of abusive treatment of detainees, some of which was documented in a 2020 investigation by The Times, and of the use of toxic industrial disinfectant at a private, ICE-contracted detention center in California. More recently, detainees and advocates have accused the agency of failing to prevent the spread of the coronavirus in crowded immigration detention centers.

In a statement, ICE officials said the agency was cooperating with an investigation by the Homeland Security Office of the Inspector General.

Some advocates, former detainees and lawmakers say closing a few detention centers fails to address what they call a larger pattern of poor treatment, often in privately run facilities. Rep. Zoe Lofgren (D-San Jose), chair of the House Subcommittee on Immigration and Citizenship, is among those who have long called for better oversight of all U.S. detention facilities.

“For those who must be detained, conditions must be improved. It would be smart to replace the very expensive system of for-profit facilities with more affordable nonprofit facilities,” Lofgren said.

ICE officials defended the agency’s practices, saying it uses various kinds of facilities to meet its needs while also attempting to save money.

Yenni Petit, a Haitian asylum seeker and transgender woman who was detained by ICE for three months this year, spoke to The Times after she was held at the Pine Prairie ICE Processing Center, a private facility in Louisiana operated by GEO Group. While in custody, according to documents filed by her lawyer, she was denied her hormone treatment and placed in solitary confinement for more than 60 days for what she was told was her own protection.

“How is this a place for immigrants who don’t have any history of violence?” asked Petit, 26, whose lawyer secured her release in May. Petit wore an ankle monitor for two months as she awaited the outcome of her case.

ICE spokesperson Dani Bennett said in a statement that Petit repeatedly requested to remain in “protective custody,” or solitary confinement.

Bennett added that Petit’s request for hormones “was determined not to be medically necessary” during her stay at Pine Prairie.

GEO Group said that the Department of Homeland Security provides extensive policies related to the care and treatment of transgender individuals and that the company is “contractually required to meet those policies and standards.”

“The decision of where to house a transgender detainee is made on a case-by-case basis, taking into account several factors including but not limited to, the individual’s gender identity, the safety and well-being of the detainee, medical care needs, and individual preference based on community/family ties or attorney in the area,” Bennett said in the statement.

Making detentions more targeted

Immigrant advocates and some lawmakers are calling for a more targeted approach to detentions. Early in his term, President Trump demanded federal authorities take a “zero tolerance” approach to anyone living in the country illegally, doing away with an Obama-era emphasis on detaining and deporting immigrants with criminal backgrounds or those who had recently arrived.

Mayorkas announced this year a plan to reorient ICE’s mission toward prioritizing those who pose a threat to national security or public safety, or are recent arrivals. According to the interim agency guidance, deportation officers must get permission from supervisors to arrest people who do not fit those descriptions. Updated agency enforcement guidelines are to be released this month, according to a Homeland Security spokesperson.

Mayorkas’ announcement was welcomed by most advocates, though they said they were waiting to see his guidance translated into action.

Others say his policy shift doesn’t go far enough. Jorge Loweree, policy director of the nonprofit immigrant advocacy group the American Immigration Council, said it’s too vague, leaving the future of millions of immigrants “an open question mark in the eyes of ICE.” Loweree wants the federal government to define a subset of immigrants whom it will shield from deportation, including what he called “vulnerable populations” and “people with long-standing ties to their communities in the U.S.”

Just under 26,000 people are in ICE custody, down from early August 2019, when more than 55,000 people were held, according to data from the agency’s website. The drop is largely due to the pandemic, during which the U.S. has largely closed its southern border.

Progressives such as Lofgren, as well as libertarians including Alex Nowrasteh, director of immigration studies at the Cato Institute, would like to see ICE more frequently use alternative methods such as ankle monitors to track immigrants. Electronic monitoring through ankle monitors is one of ICE’s many “alternatives to detention” programs.

Homeland Security also announced on Aug. 17 a program to provide social services, including mental health services and sex trafficking screenings, to non-detained immigrants facing deportation.

The program would supplement other “alternatives to detention,” programs that are “not a substitute for detention, but allow ICE to exercise increased supervision over a portion of those who are not detained,” agency officials said in a statement.

Collaboration with local law enforcement

The agency’s ongoing collaborations with local law enforcement remain another point of contention. Many advocates and some former law enforcement officials would like to scale back or end programs such as 287(g), which trains law enforcement officers at the state and local levels to perform some functions of federal immigration agents. They would also like to halt the use of so-called detainers, which allow ICE to request that local law enforcement hold a person for up to 48 hours after their official release date.

ICE officials said in a statement that the goal of the 287(g) program is public safety, to be achieved by enabling local police to “identify criminal noncitizens who they have arrested for local crimes,” and who may be in the U.S. illegally, and to “turn them over to ICE for immigration enforcement after their criminal case is complete” so the agency can expel them from the country.

Kevin Lashus, who was an attorney with ICE under President George W. Bush, said the local collaboration is an important part of immigration enforcement — especially when it comes to individuals who have committed serious crimes or have outstanding orders of removal.

But Lashus said that in recent years the law enforcement collaborations have been used as “an excuse by local communities to get the federal government to take custody over individuals who have been arrested for minor crimes” — which as a chilling effect on cooperation with police among people in the country illegally. Many are afraid that reaching out to local law enforcement, even to report crimes, will lead to their expulsion from the country.

In hopes of minimizing that chilling effect, ICE updated its policy Aug. 10 announcing it would no longer seek to expel certain victims of crime. “The new policy significantly limits the circumstances under which a noncitizen victim will be detained by ICE, requires pre-approval for civil immigration enforcement actions against victims, absent exigent circumstances, and adds new tracking and training requirements,” agency officials said in a statement.

Lashus would like ICE to also create an exception for those who report violent crimes in their communities.

That’s still not enough for Amada Armenta, a UCLA associate professor of urban planning who specializes in immigration enforcement. She’d like to do away with the collaboration programs altogether. When “immigrants [are] afraid to engage” with law enforcement, she said, “that’s bad for all of us.”

Reforms from top to bottom

Calls to abolish ICE, or at least its enforcement arm, have grown louder in progressive circles. But the argument has also gained traction among libertarians.

The Cato Institute’s Nowrasteh said he supports abolishing the Enforcement and Removal Operations division and rebranding ICE to focus solely on investigating transnational crime. That, he says, would allow for more cooperation between local law enforcement and ICE by ensuring that the agency focuses on people who are “real criminals, rather than just immigration offenders.”

The mantra in some circles to “abolish ICE” is dead on arrival in Congress, says Sarah Saldaña, who served in the Obama administration as the agency’s last Senate-confirmed director. She calls the push to abolish ICE a “very simplistic approach to a very complex, full-of-tentacles issue.”

But even a partial rebranding of the agency is bound to stall, as it did in 2018 after news of the separation of migrant families along the U.S.-Mexico border.

Whatever reforms are enacted, critics and supporters of ICE agree that the new director must address low staff morale. Both Lashus and Saldaña say the poor morale stems from a lack of leadership at the agency under acting Director Tae Johnson.

“There’s nothing like an agency without leadership,” Saldaña said. “That is a formula for disaster.” She hopes a speedy confirmation of Gonzalez will give ICE “the leadership that’s needed for an agency that is much maligned but provides a tremendous service to the country.”

Gonzalez has taken a middle-of-the-road approach to reform as sheriff of Harris County, Texas, where Houston is located. He ended his department’s participation in ICE’s controversial 287(g) program granting his deputies federal immigration enforcement powers. But he allowed ICE to issue extended holds on those detained by his deputies.

In his confirmation hearing last month before the Senate Homeland Security and Governmental Affairs Committee, Gonzalez said he wouldn’t end the 287(g) program on a national scale — drawing criticism from groups including the American Civil Liberties Union.

As sheriff, he also supported bail reform and improving access to public defenders, said Alex Bunin, Harris County’s chief public defender.

That mix might not win over progressives and hard-liners, but it might just earn him the 51 votes needed to become ICE’s new director — and thread the needle on reform.