How Donald Trump Has Transformed ICE

Last week, Renee Nicole Good, a thirty-seven-year-old Minneapolis woman, was killed by an Immigration and Customs Enforcement agent in a shooting that has now been seen by people around the world and led to protests across the country. Some senior Trump administration officials have called Good a “domestic terrorist” and said she was trying to crush the country. ICE agent with his car. At a news conference, Vice President JD Vance defended the agent, saying federal law enforcement officials are protected by “absolute immunity.” The footage of Good’s death was just the latest in a series of viral videos from ICE personnel engaging in violent behavior towards citizens and non-citizens. (The Atlantic reported last year that, as part of the Administration’s efforts to expand its list of ICE agents, training for new agents was cut by nearly two-thirds to just forty-seven days, a number chosen because Donald Trump is the forty-seventh president.)

I recently spoke on the phone with Deborah Fleischaker, who under the Biden administration was acting chief of staff for ICEwho is part of the Department of Homeland Security, and who, before that, was an official in the Office of Civil Rights and Civil Liberties at DHS. During our conversation, which has been edited for length and clarity, we discussed how ICE has changed and has not changed under the Trump administration, the procedures and regulations that ICE is supposed to follow, as well as the dangers of an out-of-control law enforcement agency.

I was hoping we could start by talking about what exactly ICEThe rules of engagement of and how they differ from the rules of engagement of other law enforcement officers. When can they require ID, for example? Can they tell anyone to get out of a car or stop people in the street?

Let me just make sure we’re talking about the same thing, because ICE has two main faces. It has Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). And because you’re talking about immigration control, you’re mainly talking about EROHSI dealing with child exploitation, fentanyl and things like that.

ICEImmigration enforcement authorities follow many of the same standard criminal procedure rules. Is there reasonable suspicion? What are they investigating? Do they have reason to believe someone might be breaking the law? And they tend to go from there. So if they see someone and think they have “reasonable suspicion” that someone is not in the country legally, they can stop and question them.

I guess “reasonable suspicion” gives law enforcement officials some leeway. What or who regulates the officials who make these judgments?

Law enforcement officers, including ICEhave immense discretion in almost everything they do, and “reasonable suspicion” is no exception. That’s something that can be leveraged, and I think we’re probably seeing that now. There are ways to establish actual rules and regulations on how to define “reasonable suspicion.” Generally speaking, it is defined by case law, through decisions of the Supreme Court and lower courts. ICE I worked hard to follow the case law. I don’t know if that’s still true. And obviously an officer couldn’t really have “reasonable suspicion” and nothing happened because no one pressed charges.

And then there are other ways to manage that, more internal ways, like internal control and accountability measures. I was at the Office of Civil Rights and Civil Liberties, and I was conducting some of these kinds of investigations, but many of these mechanisms that existed before to try to bring reasonableness and rationality to the overall efforts of DHS, including ICEwere truly gutted beyond recognition.

So, if a ICE An officer wants to demand ID from a person to prove they are a citizen, can the officer do this if they have “reasonable suspicion” that they are not a citizen?

So let me make another distinction. There are consensual encounters and non-consensual encounters. If anyone wants to cooperate, ICE can ask anything. It’s just a matter of whether you should comply or not. SO ICE can walk up to someone and say, “Can I see your ID?” And if it’s a consensual encounter and the person says, “I don’t want to talk to you” and walks away, there’s nothing inappropriate about that. The question is: does the ICE The officer then decides that the reaction contributes to “reasonable suspicion” and it becomes a non-consensual encounter – as in, they arrest them afterwards?

So there is a process here, but it leaves a lot of discretion to the ICE officers to decide how to handle these things.

Yes. There are enormous discretionary powers throughout the immigration enforcement process, and “reasonable suspicion” is just one of them. One among many.

And what about the so-called Kavanaugh stops, where people have recently been arrested based on their race or ethnicity, after an emergency Supreme Court ruling last year appeared to allow this for immigration enforcement purposes, even though it is not allowed for ordinary police officers?

Border Protection was previously allowed to use race or ethnicity as a part of why someone was stopped during immigration enforcement, but now it appears that ICE interprets this recent decision of the Supreme Court as giving them carte blanche to prevent anyone based on uniquely on race or ethnicity.

When you worked as a bureaucrat at DHS and then later in the Biden administration in a more senior position at ICEwhat was the culture of ICE? You said some of the self-enforcement mechanisms were gutted under Trump. But what was the previous culture of the place?

So, I think perspective is everything here. I come from a civil rights background. I thought there were some good starting points. For example, detention standards were a good thing. They are now weakened. There are a number of detention standards that apply to different establishments that detain people in the name of ICE across the country. And these cover everything from the provision of medical care, to facility safety and security, to environmental health and safety standards and religious accommodations.

Generally good faith efforts were made to create the rules, regulations and policies that underpinned ICEthe mission. I tended to think that the rules and regulations should have been passed faster and better, but that was also the position I found myself in. I was supposed to try to push them to be better. Sometimes it worked and sometimes it didn’t.