• By Lt. Tim McMillan

The "Real News" Of Current Immigration Enforcement.

The term, “Fake News” has become the modern jargon of choice in American society. Suddenly, any information that one finds disagreeable to their opinion or challenging to their preexisting beliefs can be declared to be “fake news!” Recently, I even saw a video of the, expressively annoying and spiteful, Milo Yiannopoulos giving a lecture in which he, in effect, called the conclusion by roughly 98% of scientist that global warming was indeed a real, to be “fake science.”

All someone needs to do now at any given moment is to add the word “fake” in front of something and associate it with something else they don’t like and it as if you have suddenly stricken it from reality. Not happy with the car you are driving? Cool, it is now a “fake car.”

One of the most significant issues we deal with now is that information or facts have become subjective to an individual. In essence, everyone and anyone are declaring every conceivable bit of information to be fake. However, no one is actually defining what is “real news.”

Presently, in the United States, an immensely popular subject that has become feverishly polarized is the topic of immigration. Seemingly not one day goes by now in which some shocking or upsetting story on immigration isn’t published. In order to alleviate some of the fear and at least provide clarity, I have decided to cover some of the central tenants being discussed in regards to the reality of the environment of immigration enforcement right now in the United States, especially, since I happen to be in American law enforcement.

First, many people may have seen some of the alarming media stories yesterday about President Trump’s intent to activate the National Guard and utilize them for immigration enforcement. The source of this story originates from a draft memo from the Director of Homeland Security John Kelly, entitled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies, dated January 25, 2017.”

If you would like to see the actual memo here is the link.

Section (A) of the memo starts by outlining that the President’s position is that, lawful detention of unauthorized aliens will deter illegal migration, prevent crimes by unauthorized immigrants already in the U.S., and the administration's intent to increase the deportation of unauthorized immigrants. The memo plainly says that “policies of “catch-and-release,” Must end.”

What this section is describing is that the position of the Executive Branch is to take an aggressive stance on immigration enforcement. Mostly, in the past, unauthorized immigrants who were arrested for non-violent crimes and misdemeanors were handled in the same manner as American citizens. They were able to bond out of jail with the promise of appearing in court at a later date. However, this process will no longer continue at the federal level. It does not require nor encourage local and state law enforcement agencies to take the same position, and this article of the memo only pertains to federal immigration officers.

This section does indicate that ICE will be interested in all unauthorized immigrants that are in custody, and a person does not have to commit a violent or felonious crime to have what in cop slang is called an “ICE Hold.” That just means, that the person cannot bond out of jail and will be detained and face a deportation hearing by the authorization of the federal government. This practice was used extensively throughout 2009 to 2013. However, it mainly pertained to violent or felonious arrests made on unauthorized immigrants. The most nominal criminal offense that regularly incurred an “ICE Hold” during this time was Driving While Under the Influence.

Ok, the section that caused all the recent media fuss is part D which calls for the expansion of the 287(g) Program to Include State Guard Units in the Border Region. What the 287(g) Program is referring to is a program that was primarily used between 2006 to 2015. The 287(g) Program allowed state and local law enforcement officers to enforce federal immigration laws. Law enforcement agencies could sign a Memorandum of Agreement and designate officers that could go through a 4-week basic training course at one of two Federal law enforcement training centers. Additionally, a one-week refresher course would be required every two years to maintain one’s Federal authority.

Presently, there are 38 law enforcement agencies in 16 states that have 287(g) agreements with ICE. All 38 law enforcement agencies are designated as “jail support” and do not engage in street-level immigration enforcement. It is imperative to point out that currently there are 17,985 different state and local law enforcement agencies. So 38 departments only represent a minute portion of the law enforcement agencies in America. If you are interested, you can see what agencies are currently participating with the 287(g) program and read the MOA’s for each department through this link: https://www.ice.gov/factsheets/287g

Now, in the memo, it expands upon the fact that the 287(g) Program affords state and local law enforcement the capability to function as federal immigration enforcement officers. The memo indicates that the Director of ICE is to engage "willing and qualified state and local law enforcement agencies to enter MOA agreements for the purpose of re-engaging and expanding the 287(g) Program."

Additionally, the memo expressly outlines that the directors of Customs and Border Patrol and Immigration Criminal Enforcement are to immediately engage with the Governors of states along the Southern Border and adjacent states to consider authorizing their National Guard units to enter the 287(g) Program just like state and local law enforcement. As the memo puts it “Based on their training and experience, these men and women are particularly well-suited to assist in the enforcement of federal immigration law and augment border security operations by Department components.”

Now, the memo does clearly state that National Guard members would function under Title 32 of U.S. Code and would not be operating under the orders of the federal government. In essence, a State’s Governor would have to approve and authorize any agreements for their particular State’s National Guard Unit to participate in the 287(g) Program. Technically, under Title 10 of U.S. Code 332, the President of the United States does have the authority to Federalize the National Guard and by legal definition could indeed order the National Guard to enforce immigration law. However, based on this memo there doesn’t appear to be any intent at this point to consider doing that.

So what does all of this mean?

Well, for one thing, it means exactly what most people have thought, and President Trump has repeatedly said. The new Presidential administration wants to be tough on immigration. How tough it ultimately will be is something that remains to be seen.

To put it bluntly, the famous words of the Wu-Tang Clan, “Cash rules everything around me…” represent the biggest factor that will influence immigration enforcement. First of all, significant, extensive immigration enforcement, particularly proactive enforcement will be an outrageously expensive endeavor.

Factor in a border wall and the reduction in tax revenue both generated and produced by unauthorized immigrants, and suddenly you are looking at a significant stream of cash that is flowing into only one particular domestic policy. However, in the famous words of Billy Mays, of blessed memory, “But Wait! There's more!” Remember, if the National Guard were to take-up the Feds offer for gaining the authority of being immigration enforcers, the Governors of those particular states would have to agree. Ultimately, on the political scene, this translates into, “So what’s in it for me and my state?” Lastly, in the same memo, Director Kelly orders CBS to “immediately begin recruiting and hiring” 5,000 more Border Patrol Agents. That would represent a 25% increase in the number of Border Patrol Agents, and once again, somebody has to pay for that increase.

When asked, White House Spokesman, Sean Spicer said the memo and the allegations that the White House was considering using the National Guard to enforce immigration law are “100% not true.” To be fair, there could be a shred of truth to Spicer’s rebuttal. The Associated Press, who published the memo has classified it to be a “draft memo.” In essence, this would have been prepared by Director Kelly, and then sent for approval to the White House. Therefore, indeed it is conceivable that the White House shot down individual elements of Director Kelly’s “draft memo.”

In my opinion, after reading Director Kelly’s memo, what I do believe to be accurate is that it provides some clarity into the recent immigration enforcement surges that have been occurring across the country in the last two weeks. Essentially, it is merely concentrated grandstanding by Homeland Security. The President has expressed his desire to pursue immigration enforcement aggressively, and now the new Director of Homeland Security, along with various other department and station Chiefs are trying to show their new boss what a good job they can do.

Again, the motivation behind some of the showboating has to do with money. As it was previously mentioned, the draft memo contains a lot of pricey directives. So some of what has been seen recently are motivated by a hope that it will translate into an increase in the overall budget of the Department of Homeland Security. Often in the bureaucracy of government operations, it is a heck of a lot easier to maintain a designated budget, than it is to increase a budget. Therefore, it behooves any government agency to come out early and try to get on the good side of a new administration in hopes that seizing the moment means capturing more cash flow.

However, just like most things in life, negative attention is never a good thing. Therefore, many of the protest and outcries against the recent enforcement surges can indeed have an influence on how an organization proceeds. Effectively, they want to make the new boss happy, not put another s#$@ sandwich on the Resolute desk, even if indeed they are doing what the President wants.

Ultimately, these are the facts surrounding some of the recent hot topic issues involving immigration enforcement. Do any of the facts provide clarity as to the future of the issue? No, not really.

In the end, that is probably what makes it more attractive to believe “fake news” over facts, because at least then people are getting some confirmation bias and a sense of clarity. Albeit a false sense of clarity, however, at least it still feels like clarity to people.

Worst case scenario, the National Guard is federalized, and granted authority under the 287(g) Program and significant numbers of law enforcement agencies decide to sign MOA agreements. Then the country begins to look like something out of V for Vendetta.

Best case scenario, similar to every single President before Donald Trump, the new administration quickly starts to realize the reality that significant and sweeping changes in the country do not happen at lightning speed. As line item budgets stack-up, the public continues to protest and cry out, and the discovery at the logistics involved in far-reaching national policies become apparent, the immigration enforcement issue begins to settle down.

In my opinion, the latter is most likely the more plausible reality. That may not be the most exciting truth for either side, left or right. Additionally, the potential for over-zealously on the ground level of enforcement efforts is indeed a real concern that may already occur or can happen in the future.

For my part, I have tried to present the most accurate assessment of this issue as I can. To facilitate that, I have sought to be as objective as possible and remove any of my personal opinions. So hopefully, if nothing else this will provide some people with clarity. At least then if someone chooses to believe “fake news,” they do so knowingly.

Tim McMillan is a retired police lieutenant and investigative intelligence analyst; and holds BA's in mathematics and cognitive psychology. Primarily, focusing on the Defense and Intelligence Communities, he now uses his unique background, coupled with a willingness to examine any mystery, to deliver groundbreaking investigative reporting. Tim is a contributor for The War Zone, Vice, and Popular Mechanics

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© Lieutenant Tim McMillan All Rights Reserved by The Raziel Group LLC