“The U.S. Department of Homeland Security (DHS) has come to rely heavily on state and local criminal justice systems in order to find non–U.S. citizens who may be deportable and push them into the detention and deportation process. This collaboration is a complex and ill-defined entanglement consisting of a web of unregulated and overlapping Immigration and Customs Enforcement (ICE) programs and mechanisms whose parameters and operations easily mutate, that are not restrained by formal regulations or mechanisms of accountability, that operate with little transparency, and that do not closely monitor or hold accountable the criminal justice systems that arrest and detain the people who end up in ICE custody. One particularly alarming result of this entanglement is that it is becoming more common for citizens, too, to be swept into the detention-deportation system.
This is now a deeply embedded and institutionalized scheme that will not disappear if our immigration system is ever substantially overhauled. The process ignores individuals’ guilt or innocence, whether arrests were the result of racial profiling (indeed, the programs themselves create an incentive for racial profiling), and whether the noncitizens swept into the detention-deportation system are adequately represented, or understand the immigration consequences of a criminal conviction, or face prolonged detention because of an ICE immigration hold request.
DHS’s use of state criminal justice systems also depends on the application of legal rules that are unacceptable in other areas of law, such as searching out for removal people who were convicted of crimes—minor or major—that were not grounds of deportation when they were committed. And it depends on characterizing as a “criminal alien” anyone with a criminal conviction, regardless of the severity of the conviction or the existence of compelling equities in the person’s favor, even when the conviction was not the basis of the removal order.”
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