A Balance of Power

By Rekha Sharma-Crawford

To say that immigration law is inextricably tied to politics would be an understatement. In the days that followed the inauguration of a new President, US immigration policies took a drastic shift in direction.  Not only were there sweeping executive orders issued restricting the travel and visa issuance policies of the US, but there was also a clear message of caution sent to those within the US as well.  The message from the very top was simple: if you had no status in the US, you were now considered a priority for removal.  Period.

It was as if the years of hidden frustration and discretionary restraint that was imposed on Immigration and Customs Enforcement (“ICE”) agents, was suddenly released.  Soon, reports of Immigration raids filled the media outlets and photos of families in crisis began to fill Facebook pages across the nation.  Much like the fear and paranoia following the 9-11 attacks, immigrant communities again began to feel the pressure of enforcement upon them.  But, something had changed in the more than a decade that had passed since the attacks on the World Trade Center.  Popular sentiment, perhaps already startled awake in the aftermath of the executive orders restricting travel, was unwilling to simply sit back and let darkness again fall over immigrant communities.  Lawyers across the nation were engaged.

The US Constitution recognizes two occupations as the bedrock of the checks and balances system; journalists and lawyers. Journalists hold the power of the pen, while lawyers hold the power of the courts.  The Executive Order on Enhancing Public Safety in the Interior of the United States, with its broad-brush changes to who would be subject to ICE detention, its re-authorization of the Secured Communities program, and its failure to defer to States on pending criminal matters involving noncitizens, seems to be set on a collision course with the Constitution. [1] Lawyers, organically, began to do what lawyers do: they began preparations to address, head on, issues of access to counsel, state’s rights, unlawful detentions, illegal searches, rushed judgements and due process violations.

“Neither did anything to ease the tensions
rising in immigrant communites

Approximately a month after the Executive Order was issued, the newly minted Homeland Security Secretary issued a memorandum, Enforcement of the Immigration Laws to Serve the National Interest, clarifying its scope and implementation procedures. [2] But, the memorandum was as flawed as the order itself and together, neither did anything to ease the tensions rising in immigrant communities throughout the nation.  Both, however, gave lawyers many fronts of attack to try and stop the desecration communities would face if ICE’s increasing powers were unchecked.

Beyond the general constitutional concerns that are inherent in the Order and the memorandum, there is also a “poison pill” that threatens the foundation of federal and state cooperation. The policy, in essence, pits the state functions of criminal accountability, against the federal goal of expedited and streamlined deportation.  The play for power by the federal government is so focused that financial carrots are being both dangled at the state as well as being used as a stick to force compliance.  In one known instance, where a Texas municipality refused to succumb to such tactics, ICE agents targeted its communities with stricter enforcement tactics. [3] As information regarding these increased efforts became known, a general societal outcry began to take place in condemnation of ICE’s actions.  Indeed, times had changed in both the quickness of the media’s ability to report these matters and the effectiveness of legal repudiations.

“It demands that state officials, arguably, ignore constitutional protections.

The next frontier in the legal challenges to this Executive Order will likely involve the issue of detainers.  Detainers, arguably the crown jewel in ICE’s enforcement arsenal, are used to compel the continued detention and transfer of a state criminal detainee to ICE, regardless of conviction or completion of state proceedings. [4]  New policy guidance on detainers, announced on March 24, 2017, builds on the Executive Order and enforcement memorandum to complete ICE’s efforts to heighten enforcement of immigration laws regardless of the legal soundness of the mechanisms used. [5]  The new detainer form, the mechanism used by ICE to request a state jailer to continue to hold an individual released by the state for up to 48 hours for the purpose of ICE assuming custody of that person, will go into effect on April 2, 2017. [6]  It demands that state officials, arguably, ignore constitutional protections against unlawful seizures and simply continue to act as an extension of ICE in depriving someone of their basic constitutional rights; the policy will undoubtedly again cause attorneys to rise to the occasion and mount fresh legal challenges.

In the little over two months of this administration, the revealed agenda will require lawyers to steadfastly approach ICE’s enforcement activities with an eye toward preserving constitutional protections and accountability.  Given the potential these policy changes hold to tear apart whole communities, there cannot be even the suggestion of legal apathy.  As the weeks and months go forward, the level of legal attacks necessary to preserve constitutional protections in the wake of these policy shifts are anticipated to rise. But if the litigation over the administration’s travel ban orders is any indication, the resilience of the judiciary and the lawyers who continue the work of keeping the balance of power in check, is robust.


About the author
Rekha Sharma-Crawford is a passionate advocate for immigration rights and has been an active immigration law litigator since 2000. With broad experiences as an assistant district attorney and private practice attorney, Rekha is a frequent speaker and lecturer on matters of immigration law. Rekha received her Juris Doctorate from Michigan State University College of Law in 1993. Rekha is licensed to practice in Kansas, Texas, Michigan, the U.S. Supreme Court and numerous federal circuit courts. Rekha is an instructor at the American Immigration Council’s Litigation Institute and active in AILA both as a speaker and author. In 2012, Rekha and her law partner husband, Michael started a non-profit legal clinic for those facing deportation through the Kansas City Immigration Court.


[1] Executive Order: Border Security and Immigration Enforcement Improvements (Jan. 25, 2017), https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements.
[2] Enforcement of the Immigration Laws to Serve the National Interest, D.H.S. Sec. John Kelley (Feb. 20, 2017),  https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-National-Interest.pdf.
[3] Lyanne A. Guarecuco, Federal Judge: ICE Conducted Austin Raids in Retaliation Against Sheriff’s New Policy, TEXAS OBSERVER (March 20, 2017), https://www.texasobserver.org/federal-judge-ice-conducted-austin-raids-in-retaliation-against-sheriffs-new-policy.
[4] 8 USC 1357 (“Powers of immigration officers and employees”).
[5] Policy 10074.2 Issuance of Immigration Detainers by ICE Immigration Officers, ICE Act. Dir. Thomas Homan (March 24, 2017), https://www.ice.gov/sites/default/files/documents/Document/2017/10074-2.pdf.
[6] ICE Form I-247A, https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf.

[Source: The Refuge (April 2017), Volume 1, Issue 2, pages 5-7]

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