How Donald Trump Has Transformed ICE - The New Yorker

Last week, Renee Nicole Good, a thirty-seven-year-old woman in Minneapolis, 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 labelled Good a “domestic terrorist” and claimed that she was trying to run over the ICE agent with her car. At a press conference, Vice-President J.D. Vance defended the agent, claiming that federal law-enforcement officials are protected by “absolute immunity.” Footage of Good’s death was only the latest in a string of viral videos of ICE personnel engaging in violent behavior toward citizens and noncitizens alike. (The Atlantic reported last year that, as part of the Administration’s efforts to swell its roster 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, during the Biden Administration, served as the acting chief of staff of ICE, which is housed within the Department of Homeland Security, and who, before that, was a civil servant in the D.H.S. Office for Civil Rights and Civil Liberties. During our conversation, which has been edited for length and clarity, we discussed how ICE has and has not changed during the Trump Administration, the procedures and regulations that ICE is supposed to follow, and the dangers of an out-of-control law-enforcement agency.

I was hoping we could start by talking about what exactly ICE’s rules of engagement are, and how they differ from the rules of engagement for other law-enforcement officers. When can they demand I.D., for instance? Can they tell anyone to get out of a car, or stop people on the street?

Let me just make sure we’re talking about the same thing, because ICE has two main sides. It has Homeland Security Investigations (H.S.I.) and Enforcement and Removal Operations (E.R.O.). And, because you’re talking about immigration enforcement, you’re talking mainly about E.R.O. H.S.I. handles child exploitation and fentanyl and things like that.

ICE’s immigration-enforcement authorities follow many of the same rules of standard criminal procedure. Is there reasonable suspicion? What are they investigating? Do they have a reason to think that somebody may be in violation of the law? And they tend to go from there. So, if they see somebody and they believe they have “reasonable suspicion” that somebody may not be in the country legally, they can stop and question them.

I would imagine that “reasonable suspicion” gives a certain amount of leeway to law-enforcement officials. What or who regulates the officials making those judgements?

Law-enforcement officers, including ICE, have huge amounts of discretion in almost everything they do, and “reasonable suspicion” is no different. It is something that can be taken advantage of, and I think we’re probably seeing that now. There are ways that you could have real rules and regulations around how to define “reasonable suspicion.” As a general matter, it is defined by case law, through Supreme Court and lower-court decisions. ICE used to work hard to follow case law. I don’t know if that is still true. And obviously some officer could not really have had “reasonable suspicion” and nothing happened because nobody brought a lawsuit.

And then there are other ways of handling it, more internal ways, like internal oversight and accountability measures. I used to be at the Office for Civil Rights and Civil Liberties, and I would do some of those sorts of investigations, but a lot of those mechanisms that previously existed to try and bring reasonableness and rationality to the whole D.H.S. endeavor, including ICE, have really been gutted beyond all recognition.

So, if an ICE officer wants to demand I.D. from someone to prove that they’re a citizen, the officer can do that if they have “reasonable suspicion” that they are not a citizen?

So let me actually make another distinction. There are consensual encounters and there are nonconsensual encounters. If somebody wants to coöperate, ICE can ask for anything. It’s just a question of whether you must comply or not. So ICE can go up to somebody and say, “Can I see your I.D.?” 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: Would the ICE officer then decide that the reaction contributes to a “reasonable suspicion” and it becomes a nonconsensual encounter—as in, they then arrest them?

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

Yes. There’s huge amounts of discretion throughout the immigration-enforcement process, and “reasonable suspicion” is just one of them. One of many.

And what about so-called Kavanaugh stops, where people have recently been detained based on their race or ethnicity, after a Supreme Court emergency ruling last year seemed to allow that for immigration enforcement, even if it is not allowed for regular cops?

Border Protection specifically was previously allowed to use race or ethnicity as part of the reason for stopping someone during immigration enforcement, but it now seems that ICE is interpreting that recent Supreme Court ruling as giving them carte blanche to stop anyone based solely on race or ethnicity.

When you were working as a bureaucrat at D.H.S., and then later in the Biden Administration in a more senior role at ICE, what was the culture of ICE? You said some of the self-enforcement mechanisms have been gutted under Trump. But what was the prior culture within the place?

So, I think perspective is everything here. I come from a civil-rights background. I thought that there were good starting points. For example, detention standards were a good thing. They are being weakened now. There are a number of sets of detention standards that apply to different facilities that are holding people on behalf of ICE around the country. And those cover everything from the provision of medical care to the safety and security of the facility to environmental health-and-safety standards and religious accommodations.

There were generally good-faith efforts made to create the rules, regulations, and policy that undergirded ICE’s mission. I tended to think that the rules and regulations should have come faster and better, but that was also the position I was in. I was supposed to be trying to push them to be better. Sometimes that worked and sometimes it didn’t.

And what about once you rose to a political position in the Biden Administration?

I did not agree politically with everyone I met at ICE, and I didn’t think that that mattered a huge amount. Most of the people I interacted with were professional and tried to do a good job and viewed the ICE mission as an important mission that they believed was underfunded. They took their responsibilities seriously. ICE is smaller, for example, than Customs and Border Protection. E.R.O. is pretty small, and interior enforcement has never got the attention that border enforcement has, but they took their job and the differences between the two seriously. Enforcement actions tended to be planned and thought through. There were written documents for them. They thought through contingencies and the need and desire to keep both the target of the enforcement action and the officers participating in the enforcement action safe. I think that’s changed over time, but that was something that I, and many other people who were involved with ICE at the time, took pride in.

How important is it for ICE to get coöperation from local law enforcement?

ICE has always worked closely with its federal, state, and local law-enforcement partners. That can be anything from serving on a joint task force to providing notice to local law enforcement when they’re going to do an enforcement action in their jurisdiction. There’s a million ways that you can coöperate. You can share information.

I think you may be getting at the issue of sanctuary jurisdictions and the idea that certain jurisdictions coöperate, more or less. And if that’s what you’re getting at, I would say that even sanctuary jurisdictions, even if somebody has a jurisdiction that has the title of sanctuary jurisdiction, there’s no real definition of what that means. And the level of coöperation can go up or down depending on the jurisdiction, but I don’t know of any jurisdictions who wouldn’t coöperate at all, under any circumstances.

As somebody who has served in ICE and understands the importance of conducting immigration enforcement in as safe and nonpublic way as possible, picking people up from prisons and jails is a huge piece of ICE doing its job well and within reasonable constraints. And so I didn’t love the sanctuary jurisdictions that wouldn’t coöperate with allowing ICE to pick people up from prisons and jails, but there’s all sorts of other ways to communicate and to coöperate, and that communication tends to be ongoing, even if a jurisdiction doesn’t share information about any particular person in its custody, for example.

So, some basic level of communication is important for public safety?

Correct. Yes.

That makes sense, but how do we think cities should be navigating this? City officials may not want to completely lose contact, for reasons of basic public safety, but also, when they see the various things that ICE is doing, it might make them wonder why they should be coöperating.

Yeah. I mean, look, at this point, I think every state and every jurisdiction is going to have to come to its own conclusions about what it’s willing to do and what it’s not willing to do. But, as somebody who has watched ICE for many, many years, what they’re doing now is unprecedented. And, to the extent that I thought coöperation was important—very important, previously—ICE now doesn’t seem to be following the typical rules of engagement. And I personally would be less inclined to coöperate in some of these ways that I think are really fundamentally important simply because of the ICE overreach.

ICE might tell a jurisdiction that it’s conducting an enforcement action in a particular place. ICE might actually ask for assistance in that enforcement action. Those are ways that sometimes communication happens that doesn’t necessarily entail, for example, giving the names of people who have been arrested, who the local jurisdiction believes is a noncitizen, to ICE. There are lots of other ways that coöperation happens. And, from the local position, they can also ask for assistance from ICE, either on a task force or just in individual circumstances. They can also ask for more specific pieces of information, like “Can you help us verify this person’s identity?”

The Washington Post reported that ICE is planning to spend a hundred million dollars on another recruitment drive, which will include looking for prospective agents at places like gun shows. Do you think the changes you’ve described are a function of new agents coming in? Are new agents less important than the messaging from the White House and ICE leadership?

There were always people within ICE who thought that they were being unfairly constrained. And I think that the Trump Administration has empowered that line of thinking, and those people, and “taken off the shackles.” And so ICE is feeling unconstrained in the way that it conducts enforcement. There are certainly people there now—not new recruits, people who’ve been there for years—who are thrilled with the direction that ICE has been moving in. There are also people who aren’t. ICE is not a monolith, and the people who work there do not all believe the same thing. And so I’ve heard from people on both sides of that since I left.

What concerns me is that the effort to hire additional people is leaning into what I would describe as the parts of the agency operating with the least control: the community sweeps, and the parts of interior enforcement that entail a visible, on-the-street presence. They’re trying to pump up those parts of the agency, which I’ve always viewed as the ones that need to be most carefully controlled.

And what about the lack of training? What effect might that have?

I would say, obviously, just the very idea that they’ve chosen to make the basic training for ICE recruits forty-seven days because Trump is the forty-seventh President tells you how seriously they take it. That’s not how you decide how much training somebody needs. You decide how much training somebody needs based on the type of job they’re going to be engaging in and the type of knowledge and information and practice they need to conduct that job safely. They are just looking to make training easier and faster as the number of agents continues to grow. And I think that that’s a very scary outcome.

What specifically scares you?

We’re seeing unconstrained immigration enforcement, and I think that that has a lot of bad outcomes. And I think that it is, to be honest, not in support of public safety. Law-enforcement officers are supposed to be public-safety officers. This, to me, feels like it is not only not supporting public safety but it is reducing public safety in the sort of unconstrained, aggressive, non-targeted mechanism that they’re using to conduct immigration enforcement. And, by surging more people to do more of it, we’re going to have more bad outcomes.

I don’t want to sound naïve by suggesting that you can foolproof an agency within the executive branch from Donald Trump, but could the Biden Administration have done more?

It’s a complicated question. The short answer is, yes, of course there’s more that we could have done. Interior enforcement has always been the red-headed stepchild of the immigration system, and nobody’s wanted to pay that much attention to it when you have what are viewed as bigger problems, like border numbers. No Administration has unlimited energy and people, and so the focus was elsewhere. But I don’t want to put too much blame on anyone here. I don’t think anyone understood the level of aggressiveness that was going to be brought to immigration enforcement in the second Trump Administration. I think a lot of people thought it was going to be very similar to the first term, and it’s been so much bigger and so much more aggressive than anything any of us could have imagined.

We did do things that I was proud of that worked to constrain immigration enforcement. For example, the “sensitive locations” policy that said that there were certain places where you shouldn’t do immigration enforcement, like schools and hospitals, because community safety required that people have access to those locations. Courthouse enforcement is another. We significantly limited immigration enforcement at courthouses because we thought courthouses should be open to the public, and because important business has to get done there and we don’t want to discourage people from showing up. The enforcement priorities were really important. They focussed ICE’s limited resources on the people that most needed enforcement: public-safety threats, national-security threats, and recent border crossers. There was a clear understanding of who the targets were.

How would you describe immigration enforcement in the first Trump term? What’s changed?

I would say that in the first Trump Administration they tried to change the rules, but they were playing by the rules. Here, they’re not playing by the rules anymore.

How so?

In the first term, they would write new regulations. They would go through a long, involved process of changing a policy. They would still engage with the Office for Civil Rights and Civil Liberties when it had recommendations for changes in policy or practice. None of those things are really happening. The Trump Administration is largely just making changes and not going through typical processes, which is supposed to weigh all of the costs and the advantages and disadvantages and come up with a very thoughtful conclusion. Right now, they know what outcome they want, and they’re doing what they need to to get the outcome.♦

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