How Donald Trump Has Transformed ICE

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.