Recently, U.S. Immigration and Customs Enforcement (ICE) conducted another set of unconstitutional immigration raids, this time targeting unaccompanied minors based on stereotypes about Latinos and gang violence. The President’s approval ratings are falling fast, and desperate to rally his base, he went to Ohio and spoke about the Latino youth being targeted as “animals.” So while failing in Congress and trying to manipulate the Department of Justice, Trump used bigoted rhetoric to justify more threats to sanctuary cities and immigrant communities.
Trump fails to understand the situation of many Latino immigrants. As state-supported violence increased in Central América and México over the last 5 years, tens of thousands of mothers, as well as unaccompanied children, began to flee to the U.S. Trump has already taken various legally questionable measures against Latino families fleeing the highest rate of “peacetime” violence in the world. These include: turning away asylum-seekers at the border, separating children from their mothers, indefinitely detaining child asylum-seekers, inhumanely charging parents trying to save their kids with human trafficking, and in the lesser-known travel ban court case, attempting to prohibit Central American refugees.
Recently, ICE issued a new memo to all field offices, directing them to conduct raids against unaccompanied minors “identified as deportable” through stereotypes. All ICE offices across the country were instructed to arrest minors simply based on clothing or tattoos that could be associated with gangs. Many children who have such tattoos were forcibly recruited by gangs in Central America—in many cases, their family members’ lives were threatened and law enforcement colluded with the gangs. By arresting and deporting anyone, let alone a minor child, based upon a tattoo, the Trump administration is violating the most fundamental protections against sending refugees back to danger (termed refoulement). Furthermore, ICE’s data is so faulty that some of their recent lists of gang members have included babies and toddlers.
Let’s be clear: arrest and deportation without due process violates the U.S. Constitution. The sharp increase in ICE raids under Trump has been countered by activists sharing “Know Your Rights” materials, helping many targeted immigrants defend their rights. The materials advise that people don’t have to let ICE enter their homes without a judicial warrant, and that they have the right to remain silent and the right to retain an attorney. Evidently, these efforts are paying off: on July 26, the conservative Washington Times quoted the President’s ICE Chief Thomas Homan stating, “Migrants who in the past would have admitted their unauthorized status and accepted deportation are now fighting their cases…Migrants are increasingly refusing to open doors for [ICE] officers[.]”
State and federal courts also support immigrant rights. Two weeks ago, a Massachusetts court held that any law enforcement agency in the state arresting or detaining persons on the basis of requests from ICE risks liability for due process violations. And in a case on the other side of the country, a federal judge issued a temporary restraining order preventing Yakima County, Washington jail officials from honoring an ICE administrative warrant to detain noncitizen defendants for ICE after their release from pre-trial detention. In other words, immigrants are innocent until proven guilty, and should be able to post bail and not be deported only because they are arrested. These two new cases add to no less than 10 others with similar holdings across the country that uphold the most basic due process rights of every person. They show that although ICE regularly uses criminal rhetoric to try to intimidate sanctuary cities and immigrants alike, being undocumented is only a civil law violation, so local police do not have legal authority to enforce ICE’s civil warrants or detainer orders.
Sanctuary policies are also better for public safety than the President’s heavy-handed anti-immigrant policies. In Long Island, New York, Trump spoke last Friday about ICE’s new anti-gang initiatives, while he also endorsed police brutality. A Salvadoran woman named Margarita explained she feared more for her teenage son’s life in Long Island than in El Salvador, where the MS-13 gang had threatened him. Here, he was beaten on the street in front of their home, but they have little hope of protection. In fact, members of the community fear Trump’s policies are making gangs stronger. Margarita told CNN, “People can get deported, so they don’t call the police. So they (MS-13) feel more free.”
Back in Washington, D.C. last week, just hours after Trump berated Attorney General Sessions, Sessions announced that his Department of Justice issued updated letters to sanctuary cities. These letters specifically threatened to retract funding if they don’t honor ICE detainers—the same civil orders that courts have prohibited local law enforcement from enforcing. On July 20, in the case of Santa Clara and San Francisco v. Trump, federal judge William Orrick held that these types of threats continue to be unconstitutional, as the federal government cannot force state and local officials to enforce federal civil immigration law.
We hope immigrant communities and sanctuary jurisdictions will not be intimidated by Trump. The law is on their side.
Katherine Culliton-González is senior counsel for Demos.