Not much of a conclusion, which signals us that the best route to improvement is to surface the central idea whose full development would provide the resonant conclusion that this draft doesn't reach.

The title's question, like the "we must" tone adopted in the body's rhetoric, seems directed to a "net of politics" analysis. Of course we can change both the substance and the administration of our border policing arrangements, including our unacceptable asylum system. But to do so requires federal legislation that we cannot possibly pass. Like every other major democracy, even Canada's, US society is now internally destabilized in ways that have strengthened familiar forces of nativism and xenophobia. Hostility to migrants and especially asylum seekers is being magnified in our politics. There is no prospect of sixty votes in the US Senate for any significant change to an impossible and morally unacceptable system that the Republican Party benefits existentially by perpetually running against in the interest of something even worse. So there's no way to make policy net of politics, or even—under current conditions—constitutional civil rights law. Under these conditions, as someone setting out to do this work—seeking to build a practice counseling and assisting clients who are for the foreseeable future trapped in our larger political dysfunction— how can you best prepare? It seems to me that's the central question around which the next draft should be built.

Can We Reform ICE? – Reconsidering America’s Immigration System

Interacting with the System

My introduction to the law was never by choice. As a naturalized citizen of the United States of America, I have grown increasingly aware that my presence in this country hinges greatly on the Citizenship Clause found within the Fourteenth Amendment of the Constitution.

A careful reading is required: “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside."

The clause is subject to multiple interpretations, but the Supreme Court understood the clause to mean every person born in the United States is a citizen of the United States, no matter the citizenship of their parents. Given my interactions with the law, I am seeking a legal education to equip me with the skills necessary to assist individuals in my home country of Guatemala to obtain access to their legally recognized right to obtain asylum and lawfully apply for citizenship. We must protect naturalized citizenship while advocating for an expansion of immigration rights.

The Issue Arises

However, the law may fail to provide justice at the moment it is required. Despite my best efforts to provide the extent of my knowledge to the Guatemalan community and provide people from Central America with legal recourse, too many people cannot wait for the law to grant them the solace they are seeking. For exactly 13,978 people from Guatemala fled in 2021. While not all individuals fled to the United States, the destination need not be a material concern. The violence, corruption, prosecution, and danger of many families, children, and persecuted groups flea leave them with a dismal cost-benefit analysis: attempt to seek asylum through a system that is backlogged or find some semblance of safety as quickly as possible. For many immigrants, a semblance of safety is granted through the means of asylum. Displacement has grown and the United States has historically contributed to the alarming rise in the turbulence we see in Central America today.

Reasonable Authority? Or An Overexertion of Power?

Our government’s best effort to rectify our contribution to mass migration from Central America may have been unintentional. The Immigration & Customs Enforcement Agency (ICE) was granted by Congress a combination of both civil and criminal authority in the wake of 9/11 to protect national security. This arguably has been a sound solution to a domestic security threat. Our law has long held that Congress has the authority to exclude in times of national crisis. (See Korematsu v. United States) The Homeland Security Act of 2002 created the Department of Homeland Security (DHS). In 2003, DHS sought its mission to prevent terrorism and enhance security. DHS stepped into the role of managing U.S. borders, enforcing & administering immigration law, and safeguarding cyberspace. However, what has flowed from the Homeland Security Act was the assumption of responsibility by the Detention and Removal Operations sector of DHS to program a Criminal Alien Apprehension Program.

Congress may have acted within its authority when it enacted The Homeland Security Act. However, this does not preclude the question of whether how ICE has implemented its Criminal Alien Apprehension Program violates the constitution. Policy under ICE has conflicted with Due Process, the Right of Notice, and whether the practice of detention violates the Constitution. Such issues have been considered by the various Courts. In 2013, the ACLU filed a complaint against the government challenging ICE’s practice of issuing immigration holds of individuals in the custody of federal, state, and local law enforcement agencies without probable cause. Gonzalez v. ICE held that ICE and the Los Angeles County Sheriff’s Department unlawfully detained thousands of suspect immigrants based on unconstitutional requests from ICE.

ICE detention practices are the starting point. ICE holds allow for the apprehension and detention of individuals who have not been accused of a crime and for whom no judicial warrants have been issued. The conditions and treatment of those detained almost become secondary but are relevant to the constitutional inquiry. My prior experience volunteering as a witness reporter with the immigration non-profit El Refugio affirmed my deepest concerns regarding the treatment of human beings. El Refugio offers support for people detained at Stewart Detention Center and their families. The Center is a private prison operated by Correction of America under contract with ICE. Testimony from those inside the Stewart Detention highlights accusations of abusive conditions, and racist and increased unsafe conditions during the height of COVID-19 that steam from our government’s contracts with Correction of America. Inside the walls of Stewart are people that the law refuses to treat on a circumstantial basis.

Where We Are Today

Total United States ICE arrests jumped thirty percent nationwide from 2016 to 2017. Moreover, the ICE Atlanta Regional Field Office, which covers Georgia, North Carolina, and South Carlina accounted for more than one-tenth of all arrests across the country. The government has given overwhelming authority to an entity that has questionably exerted its power at the least. At worst, ICE has represented values that are antithetical to the United States Constitution. Due process, protection against cruel & unusual punishment, and protection against unreasonable search and seizure are all negatively implicated under current ICE policy. We arrive at the heart of the question: can such a federally implemented agency be fundamentally remedied? It is a possibility. But it must be changed fundamentally, and justice must be re-conceptualized.

An approach to change must consider the power Congress can exert concerning immigration. Congress must consider potential reforms to the United States immigration system. We can start by providing pathways to citizenship that enable our country to exert sovereignty while also diminishing the harmful effects of the demonstrative state. Next, we must move to abolish privately owned, federally contracted detention facilities. What follows from enabling the constitutionality of privately owned detention facilities is an exertion of power to privately owned entities that finds no basis in our constitution.

I do not have the sole solution but:

I once again find myself interacting with the law.