Chipping at ICE

As horror stories from America’s southern border continue to proliferate (an example: some young children who have been reunited with their mothers no longer recognize them) calls to abolish the Immigration and Customs Enforcement agency (ICE) have gotten louder.

Libertarian Lucy Steigerwald, in The Week, makes the strongest #AbolishICE case I’ve read:

…It is an expensive, abusive, and unnecessary agency. We should get rid of it.

ICE has only existed for 15 years, during which time America’s spending on immigration enforcement, tracking, and surveillance has swelled like a tumor. The U.S. spent $187 billion on immigration enforcement between 1990 and 2013, according to the Migration Policy Institute. Deportations increased more than tenfold between 1990 and 2011. And ICE spends $2 billion every year to hold immigrants in private detention centers known for human rights abusesOne report found that, over seven years, ICE workers were accused of roughly 600 instances of sexual and physical abuse in detention centers. This is made worse when you realize that private contractors have been benefiting from the detention centers.

We now have a tangled monster of a system that incentivizes indefinitely holding people who have committed a civil infraction by crossing the border. We are spending a lot of money to punish families for nonviolent offenses — for doing a perfectly rational thing like trying to find more work, or trying to get their children out of violent, cartel, civil war-ridden countries.

Why do we even need ICE? The agency’s main job is to find and apprehend illegal immigrants who are already in the country. In theory, this is different from Border Patrol, which is meant to patrol, well, the border, but technically can operate anywhere within 100 miles of the border. As the American Civil Liberties Union has frequently pointed out, two-thirds of Americans live within 100 miles of the border, which means two-thirds of Americans are already under the jurisdiction of both ICE andBorder Patrol. This essentially makes ICE, and its $3.8 billion annual budget, redundant. I can’t think of anything ICE does that brings added value to the country, but I can point to numerous instances of the agency unnecessarily harassing Americans.

[…]

People often claim the left loves big government. But right now, those lefties are saying the government should be a little bit smaller, and a bit less cruel. We should listen.

The problem is, many Americans read “Abolish ICE” and see “abolish borders.”  That’s the argument pushed by immigration restrictionist Mark Kirkorian and echoed by many Republicans, who are already trying to capitalize on it for the November midterm elections.

The point of abolishing ICE is to end all non-criminal deportations of illegal aliens. That would mean that every foreigner who manages to slip past the Border Patrol or who overstays a visa would be permitted to stay forever, so long as he isn’t convicted of an especially heinous crime.

That would render our entire body of immigration law meaningless. The numerical caps on various categories and the requirements to qualify would be irrelevant because there would be no agency to enforce them. #AbolishICE means nothing if not unlimited immigration and open borders.

Unlimited immigration is a defensible, if misguided, goal. But its proponents are not arguing for it honestly, explaining to voters why they should open America’s borders to the world’s poor. Instead, they’re trying to fool voters by hiding behind a hashtag.

ICE, like all tools now being wielded by this venal and incompetent administration, is doing tremendous damage, and if the midterm elections are a referendum on Trump, Democrats will win big.  But if the midterms are a referendum on whether the border should be enforced at all, they will lose.

Trump chose border chaos

True to form, the President insists that it wasn’t his idea to separate parents from their young children trying to cross the US-Mexico border.  His little hands are tied by a law put in place by his Democratic predecessor, so he has no choice.

Even here in Canada, Trump has apologists who raise this point in the comment section of almost every Facebook post about it.  Ilya Somin of the Volokh Conspiracy – hardly a Democrat-friendly blog – says it’s nonsense:

…There is no law requiring family separation at the border. And even if there was, that still would not be enough to justify the administration’s cruel policy.

The federal law criminalizing “improper entry” by aliens does not require family separation. The law also provides for the use of civil penalties, as well as criminal ones. While it states that the application of civil penalties does not preclude application of criminal ones, it also does not compel federal prosecutors to pursue both. Until the administration’s recent policy change, civil proceedings were in fact the usual approach in case of families with minor children, under both Democratic and Republican administrations. The use of civil proceedings generally does not require pretrial detention, and therefore obviates the need to detain either parents or children; some civil defendants were detained, nonetheless, but in facilities where families can stay together. The Trump administration, by contrast, has sometimes even forcibly separated children from migrants who have not violated any law, but instead have legally crossed the border to petition for asylum in the United States.

The Trump administration claims that their policy is required by the 1997 Flores court settlement. But that settlement in no way mandates family separation and detention of children away from their parents. To the contrary, it instructs federal officials to “place each detained minor in the least restrictive setting appropriate” and to release them to the custody of family or guardians “without unnecessary delay.” The settlement also mandates that federal immigration officials must “treat all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors.” Detaining children under harsh conditions, separated from their parents, is pretty obviously not “the least restrictive setting” possible, and it most definitely doesn’t qualify as treating children with “dignity, respect and special concern for their particular vulnerability.”

Even if the law did clearly direct criminal prosecution combined with automatic family separation in pretrial detention, it does not follow that the administration had a legal duty to adopt a “zero tolerance” policy that prioritizes prosecution of this particular type of offense. In a world where the vast majority of adult Americans have violated federal criminal law at some point in their lives, and there are so many laws and offenders that prosecutors can only target a small fraction of them, federal officials inevitably have vast discretion in determining which offenses to pursue and to what degree. First-time illegal entry into the United States is a mere misdemeanor carrying a penalty (up to 6 months imprisonment or a small fine) lower than the penalty for possession of small amounts of marijuana (1 year). The relative penalties suggest that federal law considers the latter a more serious offense than the former. Yet not even hard-core drug warriors like Sessions urge the federal government to adopt a “zero tolerance” policy under which we routinely prosecute all small-time marijuana users. In practice, the feds only target a tiny fraction of them. And when they do, they don’t separate their children from them, and detain the children under harsh conditions.

Trump and Sessions are not obligated to do this.  It is a choice.  And while most Americans are appalled by what is being done in their name, his base remains on board:

American voters oppose by 66 percent to 27 percent Team Trump’s policy of separating children and parents when families illegally cross the border into the US, a Quinnipiac University poll released Monday said.

But Republicans overwhelmingly support the policy by 55 percent to 35 percent, the only group to back it.

How Jose Ines Garcia Zarate avoided a murder conviction

Garcia Zarate, an illegal immigrant who had already been deported several times, was acquitted of murdering 32 year-old Kate Steinle on a San Francisco pier, and the President of the United States is responding with his usual restraint:

 

Mind you, some anger is understandable considering that Garcia Zarate wasn’t legally in the country to begin with, and was arguably on the streets because of San Francisco’s “sanctuary city” policies:

The judge in the trial did prohibit discussion of Garcia Zarate’s immigration status and the mention that he was deported to Mexico, but returned to the U.S. five times. Instead, jurors were told to focus on the events surrounding Steinle’s death.

[…]

Garcia Zarate, who also used the name Juan Francisco Lopez Sanchez, had been deported five times before the deadly encounter. He had finished a federal prison sentence for illegal re-entry into the United States and was transferred in March 2015 to San Francisco’s jail to face a 20-year-old charge for selling marijuana.

But three months before the deadly encounter on the pier, Garcia Zarate was released after the district attorney dropped the marijuana charge — despite a request by federal immigration authorities to detain him for yet another deportation.

His immigration status, however, has nothing to do with whether he is guilty of murder.  Writing for the conservative site RedState, Sarah Rumpf explains why he was likely acquitted:

…The main issue is that the defense was able to present a credible case that the shooting was an accident, and the prosecution aggressively overplayed their hand. Add in a misguided police interrogation strategy and you have reasonable doubt…

[…]

…we have a defendant with zero connection to Steinle. He had a history of drug crimes but no known violent crimes. The bullet that killed Steinle hit the ground and then ricocheted upwards. There was a video possibly showing another group of people disposing of the gun where Garcia Zarate said he found it.

Reviewing the SIG Sauer website shows [the handgun used in this case, which had been stolen from a federal officer a few days before] cost $1,000 or more. You can see how defense counsel could easily argue that a homeless illegal immigrant would be unfamiliar with one.

All of this adds up to the defense presenting a plausible explanation for how Garcia Zarate could have fired the gun and killed Steinle by accident. That’s reasonable doubt. 

The prosecutors were under tremendous political pressure. People wanted Kate Steinle’s killer’s head on a platter, even before Donald Trump ever tweeted her name.

So it’s not that surprising that “San Francisco prosecutors told the jury that Garcia Zarate intentionally brought the gun to the pier that day with the intent of doing harm, aimed the gun toward Steinle and pulled the trigger,” as the Chronicle reported, adding that the Assistant District Attorney also “spent much of the trial seeking to prove the gun that killed Steinle couldn’t have fired without a firm pull of the trigger.”

This seems to be a classic example of prosecutorial overreach.They pushed hard for a first degree murder verdict, which requires not only proving that the defendant killed the victim, but that he did it intentionally, and that it was premeditated (planned or thought out beforehand). [emphasis in original]

For the record, Garcia Zarate was convicted of a firearms offence, and it will likely head to his deportation.  Again.

One quick but important note: Garcia Zarate is not going free. The jury did convict him of a lesser charge of being a felon in possession of a gun, and he now awaits sentencing, which will be 16 months, two years, or three years in state prison. He has already served two years and will get credit for that time, but even if he is not given the maximum sentence, there is an outstanding U.S. Marshals Service warrant against him, and despite the sanctuary cities policy, San Francisco apparently does turn over undocumented immigrants to the feds when they have a warrant. So he is either getting deported, or spending more time in prison first, and then getting deported.

This case does raise real concerns about American immigration and border policies – the very concerns that arguably got Trump to the White House.  It should not be an excuse for the President to call into question the integrity of his own country’s justice system.  But then again, look who we’re dealing with.

I’ll give federal prosecutor (and veteran blogger) writing under the name “Patterico” the last word:

…My gut tells me that prosecutors were handed a flawed case with a bad interview. Once the defendant has a lawyer appointed, deficiencies in the interview will never be clarified. I’m reluctant to play armchair quarterback from the comfort of my living room.

There’s plenty to be angry about here. San Francisco’s self-righteous sanctuary city policy clearly cost Kate Steinle her life. The man who handled the gun that shot her had no business being on the streets of San Francisco. He should have been deported, yet again. But thanks to leftist lawmakers, he wasn’t, and a beautiful young woman died as a result.

But that fact alone does not make this verdict wrong. Once you understand the law, it’s easy to see that the verdict may well have been correct.

The only undeniable crime here was committed by San Francisco leftist policymakers. If anyone needs to be held accountable now, it’s them.