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As more Dems call to abolish ICE, questions grow about how that would work

Protesters chant slogans as they march during a demonstration calling for the abolishment of Immigration and Customs Enforcement, or ICE, and demand changes in U.S. immigration policies, Friday, June 29, 2018, in New York. (AP Photo/Mary Altaffer)

The White House is escalating efforts to challenge calls to abolish Immigration and Customs Enforcement as the movement picks up steam among Democrats, attacking specific lawmakers over their stances on Twitter as unanswered questions remain about the feasibility of any proposal to eliminate the nation’s primary immigration enforcement agency.

The hashtag #AbolishICE has been gaining support in recent weeks with activists taking to the streets to protest President Donald Trump’s “zero tolerance” policies that have resulted in the separation of undocumented immigrant families at the border.

The issue has vaulted from social media fringes into the mainstream of Democratic policy discussions amid criticism of President Trump’s immigration policies and the unexpected victory of vocal abolition advocate Alexandria Ocasio-Cortez in a primary against Rep. Joe Crowley, D-N.Y., last week.

After visiting the southern border to witness the immigration crisis firsthand, Rep. Mark Pocan, D-Wis., announced last Wednesday he would introduce legislation to abolish ICE. The White House took aim at him directly on Tuesday.

“.@repmarkpocan, are you supporting human smuggling?” the White House Twitter account asked.

Minutes later, Pocan tweeted that Trump “has so misused ICE that the agency can no longer effectively target human trafficking & security threats.” He also reposted a three-minute video aimed at dispelling “myths” about his bill.

“Unfortunately, the president broke ICE,” Pocan said. “Their reputation is damaged so much they can no longer go into a community and have the trust of the community to find somebody who’s really a bad actor.”

The list of Democrats on the #AbolishICE bandwagon is still relatively short, but it has picked up some prominent new names in the last week.

Sen. Kirsten Gillibrand, D-N.Y., became the first sitting senator to advocate dismantling ICE last Thursday, telling CNN the agency is not working as intended.

"I believe that it has become a deportation force, and I think you should separate the criminal justice from the immigration issues," she said.

At a protest in Boston Saturday, Sen. Elizabeth Warren, D-Mass., said, “The president's deeply immoral actions have made it obvious we need to rebuild our immigration system from top to bottom starting by replacing ICE with something that reflects our morality and that works.”

President Trump and the White House have slammed Democrats for criticizing ICE and demanding it be shuttered.

“.@SenWarren, why are you supporting criminals moving weapons, drugs, and victims across our nation’s borders? You must not know what ICE really does,” the White House Twitter account said Monday.

The White House also singled out Sen. Kamala Harris, D-Calif., who has not explicitly endorsed eliminating ICE, asking her, “Why are you supporting the animals of MS-13?”

In a recent MSNBC interview, Harris said Congress should “critically re-examine ICE” and suggested it may be necessary to “start from scratch.” The former prosecutor fired back at the White House over its tweet Monday.

“As a career prosecutor, I actually went after gangs and transnational criminal organizations. That's being a leader on public safety. What is not, is ripping babies from their mothers,” she wrote.

The politics of the issue are unclear. A HuffPost/YouGov poll conducted two weeks ago found the vast majority of Americans had not heard about the abolition movement, but most respondents opposed eliminating the agency. As more high-profile Democrats make the case for it, those numbers could shift, or Republicans could successfully paint anyone who considers the idea as soft on crime.

Even less clear is what would happen if those advocating for abolishing ICE get their way. Presumably such an outcome would not be possible until Democrats control the White House and Congress, a scenario that is at least two years away at the earliest.

Defenders of ICE say getting rid of the agency will not address the critics’ complaints, which are more about immigration laws and how they are enforced than who is enforcing them.

“It depends on if your goal is to eliminate immigration enforcement or simply have it become so deprioritized and underfunded within another agency that it becomes very limited and a shadow of its former self,” said Jessica Vaughan, director of policy studies at the Center for Immigration Studies. “It still wouldn’t make the immigration law go away.”

She sees the “Abolish ICE” rally cry as more of a slogan than a literal policy proposal for at least some of its adherents, much like Republicans who say they want to eliminate the Internal Revenue Service.

“They’re using ICE as a whipping boy for their views on immigration law as a whole in the same way people who call for abolishing the IRS are really just opposed to excessive taxation, not the enforcement of tax law,” she said.

Trump’s family separation policies spurred many Democrats to speak out against ICE in the last month, but the agency does not bear responsibility for that policy. ICE operates detention facilities for those facing deportation, but Customs and Border Patrol has been responsible for taking families into custody at the border.

“The calls to abolish ICE have been predicated upon a falsehood,” said Claude Arnold, a consultant at Frontier Solutions and former special agent in charge of the Los Angeles office of ICE Homeland Security Investigations. “It’s almost like someone wanted to identify a boogeyman they could rally against.”

Critics have other complaints as well. ICE is responsible for arresting 171 percent more undocumented immigrants inside the U.S. without criminal records under Trump in 2017 than in 2016. The agency has also faced allegations of mistreating detainees, locking up American citizens, and failing to address misconduct at its detention facilities.

Democrats have pushed back against President Trump’s allegations that those opposed to his immigration policies support open borders and crime.

“I don’t support open borders,” Rep. Pocan said in his video. “I don’t know any Democrats who support open borders. In fact, ICE doesn’t operate at the borders.”

Despite the hashtag and the absolutist rhetoric, some politicians and activists who have embraced the “Abolish ICE” slogan are talking more about reforming, restructuring, or renaming ICE than wiping out its function. The recurring theme of the Democratic response has been that eliminating ICE is not the same as eliminating immigration enforcement.

“We’re not going to be lawless,” Pocan said. He stressed that the Department of Justice, FBI, and Department of Labor already fight human trafficking and would continue to do so.

Under Pocan’s legislation, ICE would be disbanded and a commission would be established to advise Congress on developing a humane immigration enforcement system.

However, Vaughan said it is not so simple.

“Immigration enforcement is a unique type of enforcement and there are specific authorities that ICE agents have that other law enforcement agencies do not have, such as the FBI, DEA, and so on,” she said. “They don’t enforce immigration law.”

Some Democrats have taken a more tentative stance of criticizing ICE and President Trump’s policies but acknowledging it is necessary.

"We are always going to need immigration enforcement. ... So to me, the issue is what are those policies, and please let's get comprehensive immigration reform, something I've strongly supported for years," Sen. Amy Klobuchar, D-Minn., told ABC’s “This Week.”

Many pushing to abolish ICE note that the agency is only 15 years old, part of the new Department of Homeland Security bureaucracy established in response to the September 11, 2001 terrorist attacks. Prior to that, immigration enforcement and deportation fell under the purview of Immigration and Naturalization Services.

In a May interview with the Intercept, Ocasio-Cortez said she is not advocating a return to the INS, but she supports transitioning some current ICE priorities to other departments and eliminating “draconian” enforcement measures.

“We really kind of need I think to reimagine our immigration services as part of an economic engine, as part of an accommodation to our own foreign policy aims and, where necessary, enforcement of serious crimes like human trafficking and so on,” she said.

According to Arnold, immigration law is one of the most complicated areas of law and only ICE has the institutional knowledge and experience to navigate it. ICE investigators deal with any crime that crosses the border, making it the government’s second largest investigative entity after the FBI.

“You couldn’t just transfer that over to another agency,” he said. “That would be a disaster.”

It may be difficult for the agents doing the work, but Rick Su, an expert on immigration law at the University at Buffalo, said nothing would prevent Congress from restructuring immigration enforcement, shifting ICE responsibilities to a different agency or creating a new one.

“Anything can be reallocated to another agency There’s nothing magical about any of these people,” he said.

This was essentially how ICE was created, moving agents who had been under the Department of Justice at INS to DHS. More recently, Congress placed custody of immigrant children under the jurisdiction of the Department of Health and Human Services.

“That’s how we got here and that’s how they would, if they wanted to, change it,” Su said.

However, there is a wing of the progressive movement that takes a big leap further by calling to shut down ICE and halt deportations without a replacement. Their complaints pre-date the current controversy, and many activists have been demanding an end to deportations and ICE enforcement since at least President Obama’s first term.

One organization, Mijente, released policy platform last week calling for “total decriminalization of immigration.”

“One of the biggest dangers of this time is that the call to ‘Abolish ICE’ will become a call to reform the agency — to create a system of ‘humane’ detentions and deportations,” said Mijente member Angelica Chazaro, a professor at the University of Washington, in an interview with TruthOut. “For those actually facing detention and deportation, there is no ‘humane’ way to be caged or exiled. The call to ‘Abolish ICE’ is a call to completely restructure the U.S. approach to the social crisis of migration away from the current criminalized and militarized approach.”

Even some within ICE are seeking significant reforms, but for different reasons. Nearly 20 special agents in charge in ICE’s Homeland Security Investigations unit recently signed a letter to DHS Secretary Kirstjen Nielsen urging her to spin their division off into a separate agency from Enforcement and Removal Operations.

According to Arnold, HSI agents have been talking about such a split for a long time to make both divisions more efficient and more focused, and the letter was likely in the works for months.

“That’s nothing new,” he said. “The timing is in the midst of all these calls to abolish ICE, but it has nothing to do with it.”

Vaughan doubts any of the thorny logistical and legal questions raised by the prospect of eliminating ICE will ever need to be answered.

“I don’t see it taking off or really developing much traction because most Americans and legal immigrants support the enforcement of immigration laws and they don’t want to see that dismantled,” she said.

So far, polls seem to bear that out. Arnold suggested Democrats supporting the #AbolishICE movement are not pushing for laxer immigration laws because they know it would not be politically popular, even if it would guarantee a change in ICE’s behavior.

“You don’t abolish an agency that’s enforcing the law,” he said. “You change the laws You don’t villainize an entire agency and its employees for doing what it’s supposed to do.”

Absent such legal changes, experts expect activists would be back in the streets soon after ICE was abolished calling for the abolition of whatever took its place.

“If you assume this function is going to continue under another agency, they’re going to be opposed to that to,” Vaughan said.

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