New York Times (Opinion)
By Linda Greenhouse
February 16, 2017
Whom do federal immigration agents despise more: former President Barack Obama, or the immigrants whose lives are in their hands?
That uncomfortable question came to mind as I read articles over the past week of the growing numbers of raids, roundups, the knocks on the door, the flooding of “target-rich environments,” a phrase an anonymous immigration official used in speaking to The Washington Post. What’s a target-rich environment? “Big cities,” the official explained, “tend to have a lot of illegal immigrants.”
Clearly, with President Trump’s executive orders having expanded the category of immigrants deemed worth pursuing and deporting, the gloves are off. There’s been plenty of news coverage of this development, but few reminders of the context in which the pursuers have been freed from previous restraints.
So it’s worth noting that the union representing some 5,000 Immigration and Customs Enforcement agents actually endorsed Mr. Trump in September, the first time the union endorsed a candidate for president. In an inflammatory statement posted on the Trump campaign’s website, Chris Crane, president of the union, the National ICE Council, complained that under President Obama, “our officers are prevented from enforcing the most basic immigration laws.” The statement went on to say that while Mr. Trump had pledged in a meeting to “support ICE officers, our nation’s laws and our members,” Hillary Clinton’s immigration plan was “total amnesty plus open borders.”
That everything in that statement except for the reference to Mr. Trump was untrue is not the point. (Far from failing to enforce the law, the Obama administration deported more than 400,000 unauthorized immigrants a year, and Mr. Trump’s Democratic rival endorsed neither total amnesty nor open borders.) Rather, the statement is evidence of how openly these law enforcement officers have been chafing at the bit to do their jobs as they please.
And chafing for a long time: back in 2012, Mr. Crane was the lead plaintiff in a lawsuit against the Obama administration’s deferral of deportation for immigrants brought to the United States as children. The claim was that the program put agents in a position of either failing to enforce immigration law as written or suffering reprisals at work for not adhering to the new policy. The plaintiffs were represented by Kris Kobach, the Kansas secretary of state. An anti-immigration activist who joined the Trump transition team as an adviser on immigration, Mr. Kobach is an originator of the false “massive voter fraud” rationale for voter ID requirements and has exported anti-immigrant legislation to states around the country, most notably Arizona.
A federal district judge in Dallas dismissed Mr. Crane’s lawsuit against the deferral program. Mr. Crane also showed his disdain for President Obama by refusing to allow members to participate in a course aimed at training immigration agents in carrying out the Obama administration’s policy that gave priority to deporting high-risk offenders rather than immigrants with clean records and deep roots in the country. Last month, after President Trump issued his immigration orders, Mr. Crane’s union and the union representing Border Patrol officers issued a joint statement declaring that, in case anyone asked, “morale among our agents and officers has increased exponentially” as a result of the president’s promised actions.
Why does any of this matter — aside from the irony of these public employee unions having achieved pride of place in the conservative firmament, while Republican governors and legislatures are moving quickly to disable public employee unions they find troublesome?
It matters because along with entrusting our immigration enforcers to keep us safe, in the president’s often-tweeted phrase, we also entrust them with the responsibility of treating unauthorized immigrants not as prey but as human beings entitled to dignity, even if only minimally to due process.
Not everyone shares that view. I get that, and I’m reminded of it every time I write about immigration. Reader comments on articles about immigration, including the gripping one last week about Guadalupe García de Rayos, the Phoenix woman and mother of two American children who was abruptly deported when she dutifully showed up for her routine check-in at the local ICE office, run to “if she wasn’t illegal in the first place, she wouldn’t have been deported.”
Right. I’d like to think we’re better than that. A month ago, we were.
In what may be an early warning of what’s to come, last Friday immigration agents in Seattle took a 23-year-old Mexican into custody despite his paperwork proving that he had been granted work authorization under the deferred-deportation program, which for now remains in effect.
“It doesn’t matter, because you weren’t born in this country,” one of the immigration enforcement agents told the man, Daniel Ramírez Medina, according to a petition for habeas corpus filed on his behalf in Federal District Court in Seattle. Mr. Ramírez was brought to this country at age 7 and twice qualified for the deferral program, most recently with a renewal last May. On Tuesday, a federal magistrate judge gave the federal government until Thursday to explain the basis for the detention.
This column is usually about the Supreme Court, and this one is, too. Next Tuesday, the justices’ first day back from a monthlong recess, the court will hear an important case on whether a Border Patrol officer can be required to pay damages to the family of a Mexican boy he killed with a bullet fired across the dry bed of the Rio Grande, the international border that separated the two by only yards. The facts of the case, Hernández v. Mesa, sound highly unusual, but they aren’t; there have been 10 cross-border shootings in recent years in addition to several dozen others along the border.
This case raises important questions about the extraterritorial reach both of the Constitution and the damages remedy that is available to United States citizens whose constitutional rights are violated on American soil by a federal official. Sergio Hernández, the unarmed 15-year-old killed seven years ago by the Border Patrol agent, Jesus Mesa Jr., was not an American citizen, and the bullet reached him in Mexico. He and his friends had been playing in a dry culvert, daring each other to run up the opposite bank and touch the barbed-wire fence on the American side. The F.B.I. report initially claimed that the boys were throwing rocks at the agent, but cellphone videos showed Sergio hiding under a railroad trestle in the last minutes of his life. He was shot when he stuck his head out from his hiding place.
The Justice Department investigated but declined to prosecute Mr. Mesa. Mexico charged the agent with murder, but the United States refused to extradite him. Sergio’s parents sued for damages, but lost when the United States Court of Appeals for the Fifth Circuit ruled that even if Sergio had constitutional rights that were violated by the shooting, the existence of any right was sufficiently unclear as to entitle Mr. Mesa to “qualified immunity,” a legal shield extended to official defendants when the relevant law is deemed uncertain. Because the case has never gone to trial, the eventual Supreme Court decision won’t resolve the conflicting accounts or establish the motive for the agent’s fatal shot. But presumably the law will be clear, one way or another, the next time such an incident occurs.
On the chaotic night last month when Mr. Trump fired the acting attorney general, Sally Yates, for refusing to defend his immigration order, he made another personnel change that got less attention. Without explanation, he replaced the acting director of Immigration and Customs Enforcement, Daniel Ragsdale, with Thomas Homan, a career employee who had been serving in the agency’s top enforcement position. Last April, when Mr. Homan received the government’s highest Civil Service award, a profile in The Washington Post began: “Thomas Homan deports people. And he’s really good at it.”
In the Post profile, Mr. Homan declined to answer questions about policy, or whether he might be supporting Donald Trump’s presidential candidacy. “Sorry, I can’t say what I think,” he told the reporter.
The Roman poet Juvenal asked: Quis custodiet ipsos custodes? Who will guard the guardians? We need to ask that question now, urgently. I fear the answer.
For more information, go to: www.beverlyhillsimmigrationlaw.com