The Trump administration is using ICE to wage a brutal, racist war on the working class, but mainstream media is desperate to put the blame for ICE’s current murderous rampage squarely on Donald Trump—from “How Trump’s ICE Became an Agency in Crisis” in TIME Magazine to “Minnesota drags Trump’s ICE to court in effort to pause immigration crackdown” in Fox News, it is “Trump’s ICE” that is to blame for the murders, kidnapped children, and mass detentions and deportations.
The history of ICE, however, shows that Trump and the far-right did not build ICE or this deportation architecture overnight; it was instead handed over to them as a bipartisan product of the ramp-up of racist surveillance and criminalization in the aftermath of the September 11th attacks.
ICE’s origins in the “war on terror”
ICE was established on March 1st, 2003 as part of the Bush administration’s creation of the Department of Homeland Security. Prior to the creation of ICE, the Immigration and Nationality Service handled all immigration matters in the U.S. Now, ICE serves as a separate branch of the federal government’s immigration network that is tasked specifically with treating immigration like a crime.
That architecture was maintained and expanded by Democratic politicians, including Presidents Barack Obama and Joe Biden, and it has enabled the militarization and invasion of our communities we are seeing today. Once again, it is up to the movement of working class people—and not the Democrats—to mount a serious fight back against this racist agenda.
The creation of these agencies and programs made immigration a question of “national security.” ICE and other agencies focused on deportation had a budget of $12.5 billion by 2006—triple the amount of money that the previous INS, which focused on all aspects of immigration including issuing visas, had in its last year before it was dissolved.
Placing ICE under a national security sphere helped to normalize the treatment of immigration as a criminal matter—which the far-right has seized on to falsely portray immigrants, as well as others standing in solidarity with immigrants, as criminals and “domestic terrorists,” as the state tried to claim after the murder of Renee Good in Minneapolis.
ICE could not exist without the PATRIOT Act
Within weeks of the September 11th attacks, Congress passed the USA PATRIOT Act, which granted sweeping surveillance powers to federal agencies. These powers were used immediately to collectively surveil and harass Muslims and Islamic religious and charitable institutions. The PATRIOT Act also allowed for the indefinite detention of non-citizens who were deemed “national security threats” by the Attorney General. This provided the legal basis to withhold even the most basic civil rights from people held in immigration detention.
Regulations introduced by Attorney General John Ashcroft also normalized the indefinite and arbitrary detention of immigrants. ICE’s precursors began to hold immigrants on technical violations, such as missing a signature on a form or improperly filed paperwork, at a much higher rate than they did before, which is now a common practice by ICE. Immigration judges also kept some immigrants detained at the request of the FBI in often secret, closed door hearings, once again undermining the due process rights of immigrants held in detention.
The sweeping surveillance powers provided by the PATRIOT Act helped to build ICE in its early years as an agency. Under the act, the FBI was mandated to share its data with the Immigration and Nationality Service, which became ICE and the Customs and Border Protection.
Data sharing facilitated INS’s, and eventually ICE’s, targeting of immigrants. Before the PATRIOT Act, INS relied on local police who often did not have broad information on immigration matters. Under the PATRIOT act, the INS had a built in directory of people it could use to cross-check with its own lists. The INS used this data to create target lists of immigrants who had deportation orders and then uploaded its list to the FBI database—meaning that all police had access to the list of people that the INS was targeting.
The PATRIOT Act also created a program for the collection of biometric data—which refers to unique physical characteristics such as fingerprint or facial scans used for identification—from all non-citizens who enter the U.S. at ports of entry, such as airports or border stations. Because of the data sharing provisions of the PATRIOT Act mentioned earlier, this means that such data also became available to police.
287(g): ICE Collaboration with Local Police
Local police did not automatically become deputized ICE agents as a result of their access to this immigration data; immigration arrests were still under the authority of ICE and its agents, and local police were not authorized to make these kinds of arrests. To get around this, in its early days ICE began partnering with local and state police forces under the 287(g) program, which allowed it to effectively deputize local police to carry out immigration-related questioning and detention.
The 287(g) program, which became law as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 under the Clinton administration, allows police to directly carry out specific duties in the place of immigration agents. This means that the police, a racist institution that systematically and intentionally criminalizes working class communities, especially Black working class communities, were now tasked with the duties of immigration enforcement.
In most cases, police that chose to partner with ICE could now screen people that they arrest for non-immigration related matters through ICE’s data and issue detainers. In some other cases, police were allowed to ask people who interacted with police about their immigration status in situations like traffic stops—an even further encroachment on due process rights.
A detainer is a request by ICE to local police or a local jail to either notify the agency when it has released someone on its target list or to continue holding the person until they can be transferred into ICE’ custody. This has clear echoes to the PATRIOT Act’s normalization of holding non-citizens and immigrants indefinitely so long as the FBI expressed interest in keeping them detained.
By 2011, 72 local police agencies across the country had 287(g) partnerships with ICE.
Barack Obama: The Deporter in Chief
The consequences of ICE’s access to FBI data expanded exponentially in 2008 with the introduction of the Secure Communities program, which is a data-sharing program between ICE and local and state police, in the waning days of the George W. Bush administration.
The program works by submitting the fingerprints of all people—including citizens—arrested and booked into local jails not only to the FBI databases, which ICE has access to, but also checked against its own immigration databases. This allows ICE to more easily identify people that it is targeting for deportation. Once ICE identifies a deportation target by cross-checking these databases, the agency will issue a detainer on the person it is targeting.
The Secure Communities program is possible because of the surveillance and criminalization laws and regulations that came from the PATRIOT Act, and the program supercharged the use of detainers by making it even easier and faster to target and deport non-citizens that ICE has in its sights.
Instead of relying on police who were a part of a 287(g) program to screen the ICE target list, the Secure Communities program automated this screening and put the power into the hands of ICE to request that someone continue to be detained. This also expanded ICE’s reach from the patchwork of 287(g) partnerships to much broader coverage around the country.
ICE’s surveillance program became mandatory for all state and local police just over a year into the Obama administration. By 2011, 1,595 local and state jails had enrolled in the program, with plans to eventually implement the program in all state and local jails, and more than 11 million copies of fingerprints had been collected.
President Barack Obama earned the moniker “deporter in chief” by directing ICE to deport nearly three million people over the course of his administration. At the start of his administration, the Obama administration pursued an expansion of the Secure Communities program as an alternative to the 287(g) program following growing concerns of racial profiling.
However, we know that both programs are focused on the same “crimmigration” model that prioritizes deportations, and this showed as the program expanded. Additionally, the program did not address racial profiling concerns because it still relied on the racist institution of policing to submit arrest data—leaving the door open for false arrests for the purpose of checking someone’s immigration status.
Democrats handed expanded ICE over to the far right
Following political uproar over the Secure Communities program, Obama attempted to disarm concerns by saying that his administration prioritized deportations of criminals. But that couldn’t have been further from the truth: by 2016, more than 80% of all people deported by the Obama administration had no criminal conviction or were convicted of nonviolent crime, according to a report published by the Marshall Project.
The Obama administration formally ended the program in 2014 and replaced it with the Priority Enforcement Program that still kept much of the surveillance infrastructure of Secure Communities in place and did little to address ICE’s pursuit of people arrested by the police, even for no offense at all. This new program still kept the heart of police information sharing with ICE alive.
President Obama’s refusal to remove the surveillance dragnet that Secure Communities was built upon ultimately enabled President Donald Trump to restart the program after he began his first term. And while Obama “wound down” the 287(g) program, his failure to abolish it and remove the power of police to racially profile people for immigration matters resulted in a rapid expansion of the program, with 150 partnerships across the country by the end of Trump’s first term.
Trump’s reinforcement of the mass deportation machine proved the futility of tinkering at the margins. The Biden administration did the same and did nothing to end the Secure Communities program at all, and kept the surveillance dragnet in place. Despite calls to end 287(g) agreements, President Biden kept police forces with documented histories of racial profiling and anti-immigrant abuse in the program.
Biden also kept the 287(g) program largely intact, which enabled the second Trump administration to rapidly expand those partnerships to more than 1,000 across the country during the first year of his second term. Additionally, Biden’s use of Title 42, which was used to quickly deport people arrested after crossing the U.S. southern border (ostensibly to stop the spread of the COVID-19 pandemic) and other policies that fast-tracked deportation proceedings for some immigrants laid the groundwork for the complete deprivation of due process. Together with Secure Communities and 287(g), this perfect storm of policy set the Trump administration up well to enact its racist mass deportation agenda.
People power can stop ICE terror!
Key provisions of the PATRIOT Act and key deportation programs kept in place by the Obama and Biden administrations are fueling the invasion of our communities by ICE agents and other federal police and the abduction of our neighbors. Democratic politicians repeatedly refused to lift a finger to abolish these surveillance dragnets and end the treatment of immigration as a threat to security.
But that does not mean that all is lost. From the original Day Without an Immigrant general strike in 2006, which killed a bill that would have further criminalized immigration, to the Sanctuary City movement which won crucial reforms that protected immigrants from the deportation machine around the country, the lesson is clear: when working people fight back, we can win.