ICE’s Expanding Authority Under Trump

0:00Alex Ossola:Hi, I'm Kelly Cavanaro, Managing Director, Head of North America Institutional Distribution. At Janice Henderson Investors, we believe working together is the way to work better. Like combining your portfolio plans and our in-depth strategy, your valued assets, and our valuable insights, your mission, and our vision. Working in harmony to seek the right investment opportunities. Janice Henderson Investors, investing in a brighter future together.

0:33Alex Ossola:Hey, What's News listeners. It's Sunday, January 25th. I'm Alex Osola for The Wall Street Journal. This is What's News Sunday, the show where we tackle the big questions about the biggest stories in the news by reaching out to our colleagues across the newsroom to help explain what's happening in our world. On today's show, the Trump administration's immigration tactics have been on display in Minneapolis. Residents have been pushing back and it's turned the city into a tinderbox. Now, as immigration officers deploy elsewhere in the country, we're honing in on ICE to understand the changing landscape of what agents are allowed to do and potential challenges to that authority.

1:11Alex Ossola:Earlier this month, the Immigration and Customs Enforcement Agency sent more than 2 ,000 people to Minneapolis. According to the Department of Homeland Security, immigration agents have arrested 3 ,000 people with alleged criminal histories who they say were in the U.S. illegally since mid-December, calling the effort, quote, a huge victory for public safety. However, ICE's increased presence and the shooting of Renee Good by an ICE officer earlier this month have sparked protests in the city and across the country, adding to clashes between locals and immigration agents that have swept through U.S.

1:43Alex Ossola:cities over the past year. So it had me wondering, what is ICE actually supposed to do? And how has that changed during President Trump's second term? I discuss these and more questions with Michelle Hackman, who covers immigration policy for The Journal. Michelle, it feels like ICE has been around for a long time, but actually the modern iteration of the agency was only created in the early 2000s. How did it come to be and what was its founding mandate? So ICE was founded in 2003. It existed in another form before then. But after 9-11, the government really revamped its sort of law enforcement and particularly its law enforcement around foreigners and allowing foreigners into the country and separated out this agency to really step up deportations and also investigating foreigners who were using the immigration process to commit crimes.

2:39Alex Ossola:And how does ICE differ from other border security, for example? ICE's mandate is really specifically to go find people in the country illegally, arrest them and get them out of the country. So it's interesting because they use a lot of the same law enforcement tactics as most other law enforcement agencies, but their mandate is civil. It's not criminal. If you're here in the country illegally, that technically is not a crime. It's actually like a little bit closer, technically speaking, to getting a parking ticket. It's a civil violation. The consequence of it is deportation. But in the government's sort of really sterile legal parlance, deportation is not supposed to be like a criminal punishment.

3:23Alex Ossola:Yeah, I'm glad you brought up the tactics because that's something that really has come into focus a lot since President Trump started his second term. But I'm curious what kind of training ICE agents receive. So the training is evolving. As we speak, traditionally, an ICE officer is supposed to get something like 16 weeks of training, and that includes everything from learning the basics of immigration law, physical training, law enforcement training, how to use a gun, for example, and also learning to speak Spanish. And this administration, because they're trying to bring on so many new ICE agents, they're basically doubling the size of the agency, have really cut down that training.

4:05First of all, they completely eliminated the Spanish requirement. They're telling people it's totally fine. You can just use a phone app to translate your conversations with people. They've cut down everything, even including the firearms training is shorter than it used to be. And a lot of the training is actually literally now done online.

4:22Alex Ossola:It seems like some of that training is evolving based on what agents are allowed to or expected to do. How have we seen that play out? There are several ways, but critics of ICE have always had this sense that it's a little bit of a rogue agency. But I will say as someone watching ICE, in the past, even under the first Trump administration, largely speaking, the way ICE would operate was a little bit closer to a traditional police agency where they would put in a decent amount of police work before they'd try to go arrest someone. They do some work to figure out, OK, we know this person is in the country illegally because they have a final deportation order.

5:00They have this address on file with the government. We know who they are. We know where they live. So we're going to go try to get them. Now what's happening more and more is the ICE officers is really being driven by the pressure that they're under to arrest lots of people. And so what we're seeing is they're actually using basic profiling tactics to see if they can't find immigrants a little bit more quickly.

5:22Alex Ossola:One of the things that's come up over the past year or so, especially in some of these legal challenges of ISIS actions, is this concept of reasonable suspicion. What is that and how is that kind of shifting? So there are two steps to making an arrest. You need to have reasonable suspicion to stop someone and question them. But then you need to have what's called probable cause to actually take them into your custody. You can't reasonably suspect that someone's in the country illegally just because they're Hispanic. But what the Supreme Court has said recently is that you can actually take a number of those profiling factors.

5:58Let's say you are Hispanic and you look terrified when you see the ICE officer. That suddenly now does rise to the level of reasonable suspicion to then stop someone and say, OK, do you have proof of your citizenship?

6:13Alex Ossola:I understand that there is a pretty changing standard around whether ICE is allowed to enter your home without a warrant. What's going on there? Yeah, this is a huge deal. Typically in the past, you would need the sign off of a judge who sort of independently evaluated the evidence and decided that level of force was needed. But ICE has just decided we need to be making more arrests. We're going to disregard that. And we're going to argue that this administrative warrant that ICE itself produces is enough to force down someone's door, break in and arrest them. Coming up, what happens to the people that ICE detains and potential impacts of legal challenges against the agency.

6:53Alex Ossola:That's after the break. balance your trading strategy by adding futures cme group helps you manage risk and capture opportunities in all market environments capitalize on around-the-clock access to highly liquid global futures and options markets across all major asset classes visit your online broker to get started see what adding futures can do for you at cmagroup.com slash podcast derivatives are not suitable for all investors and involve risk of losing more than the amount originally deposited in any profit you may have made. This is not a recommendation or offer to buy, sell, or retain any specific investment or service.

7:32Alex Ossola:What is happening these days to people who are detained? I remember back to the first Trump administration, there was the child separation policy that got a lot of attention. But let's say that you are in the country illegally. What happens to you? ICE is moving quickly to try to deport people as fast as they can because once someone is out of the country, it's harder to force ICE to bring them back. They have admitted to wrongly deporting multiple people. There are lots of sorts of procedural and human rights arguments that people can make when you're in ICE custody in the United States to say your detention is illegal, to get you out of ICE custody on bond, for example.

8:10But once you've been deported, your recourse is very limited.

8:14Alex Ossola:There have been reports of people who have died in ICE custody since President Trump took office. How common an occurrence is that? I haven't really done the proportionality, but because ICE is just so much more ubiquitous and visible now, it does mean that they're getting into more of these confrontations with people. And so most famously, you have the shooting death of Renee Good. And we've seen a really high number of deaths in ICE detention. And that's partially because there are just so many more people in ICE detention. You will have more people who end up really sick and die. The conditions inside ICE detention have been reported to be pretty poor as well.

8:52Alex Ossola:But it's not just people who are undocumented, right? What about people with open asylum cases who are picked up by ICE? If you have an open asylum case, under the law, you can be detained for the entirety of your asylum case. You can't be deported until it's been decided one way or another. But there is no law saying that you have to be free and living in the country. The reason that has come to be is that we have so many asylum seekers and in the past has been understood that we don't have enough space to detain them all and that they're a relatively low priority. If you're not a flight risk, why would you need to be detained?

9:28This government is detaining people partially as a deterrent measure to say if you are detained that whole time, you're likelier to just give up and leave the country. What kinds of lawsuits are in the works that could challenge ISIS expanded authority? There are all sorts. There are ongoing lawsuits around ICE's use of profiling and what is and isn't okay to sort of weigh when you stop someone to question them. There are lawsuits around U.S. citizens being detained and arrested by ICE wrongfully. There is going to be litigation around this question of, are you actually violating people's constitutional rights when you forcibly enter their homes if you don't have a warrant signed by a judge?

10:10Alex Ossola:How about the private sector? As immigration agents enter businesses, are those businesses allowed to say, you can't operate here? Yeah, it's a really good question. And it's one, legally speaking, ICE has several tools. So an officer without a warrant can enter a public part of a business. Let's use a restaurant as an example. They can walk into the front door of a restaurant just the way you and I can. Where ICE has had some problems is the officer will say, okay, let me go back to your kitchen and interview your employees. That's when a restaurant owner can say, I'm sorry, no, that's private property.

10:43You can't go there. But if ICE shows up with a warrant or if ICE is doing an employer inspection to say, I need to see the paperwork of your employees to see if they're working here legally, the private business has to comply with that sort of law enforcement action. The other thing I would add is that they're beyond what's legal. A lot of these places are facing really public pressure. For example, Hilton a few weeks ago had a hotel in Minneapolis refuse ICE officers to stay at their hotel. And Hilton got so much blowback. Wow.

11:15Alex Ossola:Yeah. So if you are just a typical U.S. citizen hanging out in, with your example, a restaurant and you see an immigration operation going down, what is the sort of best course of action for you? As long as you're an observer, you're free to do whatever you want. You are legally allowed to record that interaction. As long as you don't intervene in the interaction, you are okay. The Department of Homeland Security is conducting an operation in Maine. How can we expect that to be similar or different from what's been going on in Minneapolis? I don't think it's going to be sort of at the same level as Minneapolis, partially because there are fewer officers and they're targeting the entire state.

11:56In Minneapolis, what really made that operation so remarkable, and it's still ongoing, is that you have a relatively small city of about 400 ,000 people and 3 ,000 ICE officers there.

12:09Alex Ossola:That was Wall Street Journal reporter Michelle Hackman. Thanks, Michelle. Thank you. And that's it for What's New Sunday for January 25th. Today's show is produced by Hattie Moyer with supervising producers Sandra Killhoff and Melanie Roy. I'm Alex Osola, and we'll be back tomorrow morning with a brand new show. Until then, thanks for listening.

12:50Alex Ossola:Thank you.