‘Case of the Week’ 1 (NCFCA): ICE Detention

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2011 sourcebook, and are frequently contributed by non-COG authors. You will likely find material and sources in these cases that would not appear in the sourcebook. Also the backups are not intended to be complete. That said, we hope these cases will be useful to you; enjoy!

About the Author: Daniel Gaskell is the lead editor for COG 2011, a nationally-qualified debater and speaker, and developer of the Factsmith research software. You can find his weekly debate blog, Loose Nukes, at loosenukes.cogdebate.com.

Reading note: all added material is in italic brackets – non-italicized brackets were in the original text. No ellipses (…) have been added.

1AC: ICE Detention Procedures

By Daniel Gaskell

If you suddenly disappeared off the face of the planet tomorrow, what would happen to your children?

That’s probably not a question you really want to think about, but it’s one that’s very real for illegal immigrants. Following a raid on their workplace, they may find themselves suddenly separated from their children, with no way of communicating with them or arranging for their care. Federal authorities are often uncooperative, interested more in crossing off another arrest than keeping families together. The damage to the community – and to the children – can be devastating.

We believe that there is a better way – one that doesn’t require such violent and indefinite separation. My partner and I stand resolved: that the United States Federal Government should significantly reform its criminal justice system.

Part 1: Definitions

Before we launch into our proposed change, I’d like to define some terms that will be used in this round, to make sure we’re all talking about the same thing:

Significant: “having or likely to have influence or effect” (Merriam-Webster Online Dictionary, 2011, http://www.merriam-webster.com/dictionary/significant)

Criminal Justice System:Criminal justice system refers to the collective institutions through which an accused offender passes until the accusations have been disposed of or the assessed punishment concluded. The criminal justice system consists of three main parts: (1) law enforcement (police, sheriffs, marshals); (2) adjudication (courts which include judges, prosecutors, defense lawyers); and (3) corrections (prison officials, probation officers, and parole officers).” (USLegal Online Law Dictionary, 2011, http://definitions.uslegal.com/c/criminal-justice-system/)

Immigration and Customs Enforcement, or ICE: “U.S. Immigration and Customs Enforcement (ICE), the largest investigative agency in the Department of Homeland Security, enforces federal immigration laws as part of its homeland security mission.” (U.S. Immigration and Customs Enforcement, “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act”, http://www.ice.gov/287g/)

Part 2: Harms – the problem

The ICE arrests thousands of illegal immigrants every year in raids on homes and workplaces, most of whom are eventually deported. Lost in all the rhetoric of the immigration debate, however, is an important fact: most of them also have children. What happens to those children when their parents are arrested… isn’t good.

1. Children Abandoned – parents are detained, leaving no one to take care of their children

Prof. David B. Thronson (JD from Harvard, Associate Professor of Law at the University of Nevada), July 6, 2008, Wake Forest Law Review, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families”, Vol. 43, accessed June 24, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155224 (page 405)

The workplace raids presented particular difficulties for parents who were detained and not able to go home to their children. Discussing the New Bedford raid, the First Circuit noted “that ICE gave social welfare agencies insufficient notice of the raid, that caseworkers were denied access to detainees until after the first group had been transferred, and . . . [a]s a result, a substantial number of the detainees’ minor children were left for varying periods of time without adult supervision.” Persons arrested who contested removability “were detained for significant amounts of time in locations far from their homes and families.””

Randy Capps and Ajay Chaudry of the Urban Institute report one case in which three single mothers were separated from their children for up to six months.

As any parent can imagine, the consequences for children go far beyond mere physical care – being suddenly and indefinitely separated from their parents causes…

2. Severe Emotional Trauma

Prof. David B. Thronson (JD from Harvard, Associate Professor of Law at the University of Nevada), July 6, 2008, Wake Forest Law Review, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families”, Vol. 43, accessed June 24, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155224 (page 405)

“”[M]any children face[] traumatic circumstances and insecure care . . . in the period after the raids.” According to “[c]hild psychology experts . . . children suffer most from the disruption of armed agents coming into their homes and taking away their parents – and sometimes themselves. Children can experience stress, depression and anxiety disorders ….” “The most destabilizing impact on the children of arrestees following worksite enforcement actions came from the separation and fragmentation of families.” For children, “emotional trauma . . . followed separation from one or both parents.” For young children who do not understand the concept of immigration law, “sudden separation was considered personal abandonment.“”

You might be thinking at this point: well, that’s bad, but they’re criminals, after all. There isn’t really much we can do about that. Actually, there is:

Part 3: Inherency – what the ICE is doing

In 2007, in response to the problems outlined in the previous section, ICE implemented a set of “humanitarian guidelines” requiring agents to identify single parents, primary caregivers, and other people with “humanitarian concerns”. Where possible, the parents are then released to take care of their children while they await processing by the immigration courts, instead of being held in detention.

These guidelines are a good start, but they’re not quite a complete solution, as we see in three points:

1. Guidelines Work – in cases where the guidelines are applied, children are protected

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 15)

“The Postville and Van Nuys raids occurred in 2008, after the guidelines were developed, and were large enough for them to apply. During these raids, ICE followed the guidelines by releasing primary or sole caregivers of minor children and those with acute medical conditions quickly- usually the same day-and often directly from the raid site. Consequently, there were no accounts of children left unattended or neglected for a significant amount of time in either Van Nuys or Postville.”

2. Limited Application – the guidelines only apply to workplace sweeps of more than 25 people

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 20)

Besides the arrests at workplaces, immigration enforcement activities can take the form of FOT sweeps conducted by ICE agents and 287(g) arrests made by local police and sheriffs. Our current study expands the scope of the research described in our 2007 report Paying the Price to include these activities in addition to worksite raids. Because these arrests are most often the result of investigations of individuals rather than large employers, ICE’s humanitarian guidelines around detention do not apply. Moreover, the scale of the arrests in any given operation is generally too small-less than 150 arrests at the time (less than 25 now)-for the guidelines to apply. The fact that humanitarian guidelines do not apply, along with the relative invisibility of these operations in comparison to workplace raids, makes parents and children particularly vulnerable to long separations. Nonetheless, there were instances in Miami when ICE released parents quickly for humanitarian reasons. There were no such releases- and detention periods tended to be long-following arrests by the local police in Rogers-Springdale, Arkansas.

3. Must Apply Everywhere – separations will continue to be a “significant problem” until the guidelines are expanded to cover all cases

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 76)

“The extension of these humanitarian guidelines to cover raids in which 25 or more workers are arrested and the absence of large-scale worksite raids in the past year are positive developments. However, until these guidelines cover the full range of enforcement activities by ICE and its partner agencies, which result in a larger number of arrests, most children will remain unprotected and family separations will continue to be a significant problem.

Part 4: Plan

We have one simple mandate:

Apply Guidelines Everywhere – The ICE’s humanitarian guidelines shall be made mandatory for all arrests, not just workplace busts of 25 people or more. This includes arrests made in the home, and arrests by local law enforcement working under the federal 286(g) program.

Enforcement shall be through the ICE, the Department of Justice, and any other necessary federal agency. Funding shall be through the ordinary budgetary processes of the ICE and the Department of Justice.

Since we obviously don’t have time to present a complete bill in 8 minutes, we do reserve the right to clarify the details of this plan in later speeches, as needed.

Conclusion

Illegal immigrants may be criminals, but their children have done nothing wrong, and no child should be forcibly separated from their parents without cause. The ICE’s current humanitarian guidelines have proven that it is safe and practical to keep families together during the immigration proceedings. Since the trauma of separation can easily be avoided, it is inexcusable to continue current policies and let thousands of children fall by the wayside. We urge you to vote Affirmative. It’s for the kids. :-)


Backup: ICE Detention

Author Comments

This particular proposed reform has relatively little literature. The main study is the 2010 Urban Institute report, which provides advocacy and is quoted extensively in the backup below. You’ll get a lot more if you expand the case to cover other topics related to children of incarcerated parents, but it’s a big and complicated topic without a lot of easy “do this” advocacy, so I didn’t get into it much.

This general topic has a lot of room for tweaking the case. Urban’s full recommendations are a bit more complicated than just the 25-rule; for example, they recommend ending mass workplace raids altogether, in favor of more passive enforcement and prevention. You could also expand the case to cover other criminal arrests.

Significance is the biggest issue you’ll hit immediately. I recommend a three-step approach: 1) read a bunch of stories (Harms, below); 2) point out that thousands of parents are arrested every year (Significance, below); and 3) cross-apply Inherency 3 in the 1AC to show that the majority of their children are still unprotected. (That’s thousands, yo.)

Inherency

Humanitarian policy isn’t mandatory for raids under 150 people – original guideline

Immigration and Customs Enforcement, 2007, “Guidelines for Identifying Humanitarian Concerns among Administrative Arrestees When Conducting Worksite Enforcement Operations”, accessed June 24, 2011, http://www.nilc.org/immsemplymnt/wkplce_enfrcmnt/ice-hum-guidelines.pdf (page 1)

Prior to conducting a worksite enforcement operation targeting the arrest of more than 150 persons, ICE should develop a comprehensive plan to identify, at the earliest possible point, any individuals arrested on administrative charges who may be sole care givers or who have other humanitarian concerns, including those with serious medical conditions that require special attention, pregnant women, nursing mothers, parents who are the sole caretakers of minor children or disabled or seriously ill relatives, and parents who are needed to support their spouses in caring for sick or special needs children or relatives. Where practical, at the direction of the Assistant Secretary, ICE will continue to implement these guidelines in all smaller worksite enforcement operations.

Now applies to 25 or more arrests – 2009 update

David Whitlock (attorney at Littler Mendelson, a law firm in California), May 4, 2009, Global Immigration Council, “Homeland Security Issues Fact Sheet on Worksite Enforcement Strategy”, accessed June 24, 2011, http://www.globalimmigrationcounsel.com/2009/05/articles/us-immigration/homeland-security-issues-fact-sheet-on-worksite-enforcement-strategy/

The existing humanitarian guidelines governing ICE’s behavior in raids affecting 150 or more employees will now apply to worksite enforcement efforts impacting 25 or more illegal workers.

Harms

Examples: Single mothers held for months

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 22)

None of the parents with whom we spoke [who were arrested in Rogers-Springdale, Arkansas] had been granted early release for humanitarian reasons. Respondents from Arkansas on average had much longer detention periods than the parents we interviewed in other sites. Notably, three single mothers in Arkansas were held in detention between 12 days and six months.

Example: 12-yr-old sleepwalking, waking up screaming

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 45)

In another case, a Postville mother who was arrested and released described how her 12-year-old son had been affected. Right after the raid, her children were afraid to answer the door and became clingy. Her son appeared to be no more traumatized by the raid than his siblings. However, nine months after the raid, she was considering taking him to a counselor because his behavior had become exceedingly worrisome. “He’s, like, traumatized because sometimes he’s sleeping . . . he gets up screaming at his uncle [who was arrested], someone he loved a lot and he gets up screaming, crying . . . And if you grab him, he walks and leaves [the house]. Then, when you talk to him, he wakes up from his sleep.” He repeated similar sleepwalking episodes almost every night and sometimes woke up in other people’s rooms.

Examples: Children traumatized and depressed from separation

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 44)

Children separated from a parent or caregiver struggled during these periods of great uncertainty for the family, especially since they did not know if or when their parent would return. For instance, a 2-year-old boy in New Bedford was apart from his mother for two weeks. He did not want to engage with family members who were caring for him. “He had a fever,” said the boy’s aunt who took care of him. “[He was] sad, very sad. He couldn’t eat. And when the night came . . . even though we’re family, he would just watch us . . . He didn’t want to play.” In Arkansas, a mother was in detention for three days, long enough to unnerve and disorient her four daughters (ages 16, 13, 8, and 2). The girls stayed with a family friend who watched after them while the mother was in jail. “While they were in the house,” the friend said, “they did not want to eat. During the days they spent there, I had to beg them to eat. They were very depressed. They couldn’t sleep because I would wake up at dawn and the girls were crying.” Even after their mother was released, the family feared going back to their apartment because they were afraid the entire family would be arrested. The youngest became so depressed that she only wanted to sleep. Her mother thought about taking her daughter to a specialist to see if anything could be done to help the girl.

Examples: Children become afraid of the police

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 46)

An 8-year-old boy in Van Nuys who witnessed his father’s arrest by ICE agents-in the family home, at gunpoint-no longer trusted the police. According to his father, “They see the police and they run home . . . Sometimes I go to visit them and, well, I’m there and they come in running and shutting the door because they say that the police is coming.” A 5-year-old boy whose mother was arrested at the Swift plant in Grand Island also feared both immigration and the police. “Like it or not, they take notice of all of this- [everything we say about] immigration, immigration, immigration. It’s like they also think that they are bad in the eyes of the police. [My oldest son] is even afraid of the police . . . When he sees a police officer, he goes away and hides.”

Increased aggression

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 48)

Anger, aggression, or rebelliousness were reported for onethird of all children in the short-term sample, though the way parents described the behavior differed according to the child’s age. Parents of younger children described how their children began lashing out angrily, while parents of older children said their children had become disobedient or less respectful. Angry behavior toward others, for some children, also became a way to voice their frustrations or redirect their outrage after their parent’s arrest.

Hurt development

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 48)

In addition to the behavioral changes described above, some parents of young children (under 6 years old) voiced concern about related changes in their children’s development and speech patterns. For example, a 3-year-old who witnessed his mother’s arrest in the family’s home underwent a dramatic reversal in developmental milestones.

Speech problems

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 49)

A few parents also noted increased difficulty in speaking in their children. For example, a 5-year-old girl and a 4-year-old boy whose fathers were arrested at Agriprocessors and detained for months both developed speech problems.

Communicating with family from detention is difficult

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 24)

Most of the parents who were held for more than one day reported difficulties communicating with their children during detention. One man who was detained for six months said he was not permitted to make phone calls from the first detention center where he was held for a week. A mother from Arkansas had a similar experience. During the first two months, she was only allowed to write letters. After that, she could call once or twice a week but had to call collect, and it was expensive. Other respondents, including a mother from Grand Island, registered the same complaint: “The calls were very expensive. Ten dollars for five minutes to talk about everything you could in five minutes. So, I was always depressed [when I hung up].”

Three quarters of illegal immigrant’s children are U.S. citizens

D’Vera Cohn (consultant and freelance writer for the Pew Hispanic Center, Brookings Institution and Population Reference Bureau) and Jeffrey S. Passel (PhD in statistics, senior demographer at the Pew Research Center), April 14, 2009, Pew Hispanic Center, “A Portrait of Unauthorized Immigrants in the United States”, accessed June 24, 2011, http://pewhispanic.org/files/reports/107.pdf (page 2)

In addition, a growing share of the children of unauthorized immigrant parents-73%-were born in this country and are U.S. citizens.

Significance

Over 100,000 parents (of citizens alone) deported since 1998

U.S. Department of Homeland Security, January 2009, “Removals Involving Illegal Alien Parents of United States Citizen Children”, accessed June 24, 2011, http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-15_Jan09.pdf (page 8)

According to DACS data, 108,434 alien parents of U.S. citizen children were removed between FYs 1998 and 2007. More than a third of the parents-40,260 or 37.1%-were previous offenders who returned to the United States after their first removal and subsequently were removed on other occasions during the 10-year period. As a result, the total number of parent removals was 180,466.

13,000 children’s parents deported in two years

Prof. David B. Thronson (JD from Harvard, Associate Professor of Law at the University of Nevada), July 6, 2008, Wake Forest Law Review, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families”, Vol. 43, accessed June 24, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155224 (page 404-405)

ICE does not collect data on the number of arrestees who have children. However, statistical estimates, confirmed in several case studies, predict that the number of children affected by the arrest of parents in workplace raids “would be equal to about half the number of adults arrested.” By one account, “at least 13,000 American children have seen one or both parents deported in the past two years alter round-ups in factories and neighborhoods.” When extended families are considered, the count of families that have been separated increases.

Underestimate – likely many more

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 1)

Hundreds of thousands of children have experienced the arrests of their parents in recent years; a report by the U.S. Department of Homeland Security (DHS) estimated that over 100,000 parents with U.S. citizen children were deported over the past 10 years-most likely a significant underestimate since parents often do not divulge the presence of children when they are arrested.

ICE deportation budget: $2.5 billion

Los Angeles Times, October 6, 2009, “Alternative housing to be used to hold some immigrant detainees”, accessed June 24, 2011, http://latimesblogs.latimes.com/lanow/2009/10/alternative-housing-to-be-used-for-some-immigrant-detainees.html

The proposed changes are expected to reduce costs for Immigration and Customs Enforcement, which has a nearly $2.5-billion annual budget for detention and deportation.

Solvency

Advocacy: Apply guidelines to all arrests

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 76)

[Recommendation:] 3. Law enforcement should allow alternatives to detention for arrested parents who represent neither a danger to the community nor a flight risk in all types of enforcement operations, as long as mandatory detention rules do not apply to these parents. The humanitarian release rules that applied to the worksite raids we studied in Postville and Van Nuys should apply to arrests by FOTs and referrals from state and local law enforcement agencies. The humanitarian guidelines ICE issued in November 2007 regarding the quick release of parents in large-scale worksite raids made a significant difference for many families and children in Van Nuys and Postville.

Shorter separation = less trauma

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page ix)

Children who were separated from detained parents were more likely to experience behavioral changes in both the short term and the long term. In the short term, about three out of four of the children separated from parents experienced changes in eating habits, while these changes were experienced by only half of the children who were not separated from their parents. About two-thirds of the children separated from their parents began crying, and about half of them exhibited fear. Of the children who were not separated from parents, about half cried more than before and about a third felt afraid. In the long term, children who did not see their parents for a month or more exhibited more frequent changes in sleeping habits, anger, and withdrawal compared with children who saw their parents in the first month after arrest.

Disadvantage Responses

A/T “hard on law enforcement”: Family rights are more important than convenience

Prof. David B. Thronson (JD from Harvard, Associate Professor of Law at the University of Nevada), July 6, 2008, Wake Forest Law Review, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families”, Vol. 43, accessed June 24, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155224 (page 416-417)

Family Rights Do Not Give Way to Logistical Difficulties

[later, in this section:]

Working to keep immigrant families together within the United States likewise can present new challenges for child welfare advocates. In any determination of child custody issues, vigilance against discrimination on the basis of immigration status is crucial, but “[a] strict prohibition on raising immigration status issues in child custody matters would be difficult to maintain because immigration status does have an impact on the experiences of many immigrants and their families.” Rather than sweeping issues related to immigration under the table, it is important that when such considerations are at play they are “acknowledged, understood, and, when appropriate, affirmatively addressed in legal representation.”

Appellate level vindication of family rights will not counteract perceptions that immigrants are disadvantaged in child custody matters until frontline practices align with appellate articulations of the rights of immigrant children and parents. This alignment will require social service agencies and family courts to commit resources and question existing routines, but the preservation of fundamental family rights requires no less.

[Another response to this argument: They already do it for workplace raids of 25 people; how much harder can it be for 25 people arrested in other manners?]

A/T “fear of separation discourages illegal immigration”: Morally questionable motive

Prof. David B. Thronson (JD from Harvard, Associate Professor of Law at the University of Nevada), July 6, 2008, Wake Forest Law Review, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families”, Vol. 43, accessed June 24, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155224 (page 417)

At the same time, in an environment in which the enforcement of immigration laws is highly selective, the decision to devote scarce enforcement resources in a manner that profoundly harms children is questionable at best. Practices that create crisis and discord in families place the enforcement of immigration laws in direct opposition to widespread policies and significant government resources that are devoted to maintaining families and protecting children. Exploiting the fear of family separation should not be the lynchpin of modern immigration enforcement.

Topicality

ICE is a federal law enforcement agency

U.S. Immigration and Customs Enforcement, static information page, “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act”, accessed June 24, 2011, http://www.ice.gov/287g/

U.S. Immigration and Customs Enforcement (ICE), the largest investigative agency in the Department of Homeland Security, enforces federal immigration laws as part of its homeland security mission. ICE works closely with federal, state and local law enforcement partners in this mission.

Detention is part of the federal criminal justice system

Harvard National Security Research Group, January 2009, “An Analysis Of Legal Options For Detention And Trial Of Suspected Terrorists”, accessed June 24, 2011, http://www.law.harvard.edu/students/orgs/nsrc/NSRG – Detention Project – Final.pdf (page 2)

This section begins with a review of the currently authorized procedures for detention in the federal criminal justice system and then discusses a proposed administrative detention model that might be adopted for use in cases involving terrorist suspects.

Local arrests: Made under the authority of 287(g), a federal program

U.S. Immigration and Customs Enforcement, static information page, “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act”, accessed June 24, 2011, http://www.ice.gov/287g/

The 287(g) program, one of ICE’s top partnership initiatives, allows a state and local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA). The state or local entity receives delegated authority for immigration enforcement within their jurisdictions.

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12 Responses to ‘Case of the Week’ 1 (NCFCA): ICE Detention

  1. What kind of neg arguments would you run on this kind of case?

    • cogdebate says:

      Significance, mostly, and inherency. I haven’t done much Negative research on it. You could also probably find some “this-is-a-burden-on-the-ICE” points if you looked around.

      – Daniel

  2. jl says:

    Topicality too. Its not the Federal Criminal Justice System. It involves how federal law enforcement agents deal with non-criminal juveniles. Illegal immigrants are not criminals, they have committed a civil offense. Your card detention is part of the criminal justice system almost made me choke. That card is talking about suspected terrorist detentions not the detention of civil let alone the fact that you case reforms how those that haven’t violated any civil offenses even are treated. Please, don’t use such a card anyone who is running this case, you will as good as lie to my face as to use that card.

    • cogdebate says:

      There are two main points in your argument:

      1 – “Immigration is a civil issue, not a criminal issue.” This is only partly true. (We actually have an entire brief about this issue in COG.) Some immigration offenses are civil, others are criminal. What really matters is whether the ICE is part of the CJS, since that’s what the case reforms. As the first card in the topicality section indicates, the ICE is commonly considered a law enforcement agency, so it would be part of the CJS.

      2 – “The case deals with juveniles, not with the criminals themselves.” This is true, but irrelevant. The resolution asks us to reform the criminal justice system, not our policies towards criminals. If something is part of the CJS, reforming it is topical, even no actual criminals are affected. (For example, suppose someone is running a case that reforms federal trial procedures to try to stop innocents from being convicted. This is clearly topical, but under this standard, it wouldn’t be, because it’s only aimed at people who aren’t actually criminals [they’re innocent]. That doesn’t make any sense.)

      All this is certainly debatable, of course, and you could certainly run a logically-complete topicality press with a little work. It’s splitting hairs, however, so I doubt very many judges would vote on it.

      (You’re misinterpreting the detention card, by the way. It doesn’t say “detention of terrorists is part of the criminal justice system” – it says, roughly, “the criminal justice system includes detention, and this article is about applying it to terrorists.” Whether or not ICE detention is covered by this statement is debatable, but it does demonstrate that the literature tends to consider non-military detention a criminal justice issue. It’s not a particularly good card, but it’s not dishonest.)

      – Daniel Gaskell

  3. jl says:

    1. On the detention issue, I see your argument, but still think its wrong to use a card talking about a wholly different issue, terrorism. Plus it doesn’t say detention is in the Federal criminal justice system, it says it discusses when it is used in the system and in that very card proposes a form of detention, administrative, different from the system detention, as an alternation. Miss-tagged, miss-contextual and in the end miss-use.
    2. From your case you are talking about arrests of illegal immigrants. It doesn’t say persons immigrating illegally (criminal) or criminal immigrants, it says illegal immigrants and being one is a civil offense! Arguable on the technicality yes. In the application of your evidence, no.
    3. Your illustration under the juveniles argument is faulty. My argument would be that the criminal justice system is “The collective institutions through which an accused offender passes until the accusations have been disposed of or the assed punishment concluded. The system typically has three components: law enforcement (police, sheriffs, marshals), the judicial process (judges, prosecutors, defense lawyers), and corrections (prison officials, probation officers, and parole officers).
    (Book: “Black’s Law Dictionary; Ninth Edition,” © 2009, [Edited by the world’s foremost legal lexicographer, Bryan A. Garner, Black’s Law Dictionary is known for its clear and precise legal definitions, substantive accuracy, and stylistic clarity — making it the most cited legal dictionary in print], Published by Thomson Reuters, [brackets in original; emphasis in original],)” Reform of the federal judges would be topical but only as regards to his responsibility as such. To reform how he greets his mother at Christmas-time wouldn’t be a reform of the CJS though it would be a reform of an actor in the criminal justice system it wouldn’t reform it. Your case deals with an actor of the CJS; the ICE, but it doesn’t reform the system (which is only in existence in response to an accused offender. Otherwise you might as well right a resolution that says that “the members of congress ought to be reformed”.

    • cogdebate says:

      1. The card says that the CJS has various administrative detention procedures. What the ICE is using is administrative detention. True, the card never explicitly says “immigration detention is part of the CJS,” but the brief never claims it does. Again, it’s more illustrative of usage than an all-encompassing statement.

      2. While workplace-related offenses are civil, crossing the border without proper documents is a criminal offense; therefore, by definition, all illegal immigrants are criminals. They may not eventually be charged as such, but they are all offenders.

      Regardless, the important issue is not what the illegal immigrants are, but what the ICE is. As the first card in the Topicality section states, the ICE is considered a law enforcement agency, so it would be part of the CJS under your definition.

      3. See #2. The case deals with the policies and procedures of the ICE; if the ICE is part of the CJS, then reforming it is topical.

      – Daniel Gaskell

  4. jl says:

    1. Your card does “explicitly state that “Detention is part of the federal criminal justice system”!
    2. This is not true, many people come here legally (on a visa) and simply stay. Not all are illegal immigrants and as such dealing with them as a whole requires to consider it a civil offense unless you provide more specifics.
    3. To some extent you could argue that president obama is a part of the criminal justice system because he can pardon people (effects he chooses judges) but that doesn’t mean you can therefore reform anything he does, or even anything he does as a president. Only when he is acting as a part of the criminal justice system to process and punish (or pardon) offenders. He is an actor, as is the ICE, but it can only be reformed how it applies to the criminal processing which means that its application to non-criminal juveniles takes away its posoition as the CJS.

    • cogdebate says:

      Basically, the literature considers ICE arrests and detention procedures to be a law enforcement action. That makes reforming it topical.

      You can certainly argue technicalities of the definition, but that’s splitting hairs so you’re not going to win many judges.

  5. jl says:

    1. Sorry, I mean your tag.

  6. jl says:

    Another Note, the ICE may be a law enforcement agency, but specifying is important. As your evidence says its an immigration law enforcement agency, and by nature immigration law is civil (though much has been criminalized). So though in practice it may enforce criminal laws, technically and historically speaking they have enforce civil law.

  7. Giovanni Segar says:

    Fun topicality argument here, I agree with jl that this is off-topic.

    It is splitting hairs, but you’re splitting hairs to be on topic as well ;)

    Plus if you impact it correctly you could get a judge vote.

    I don’t know, the case doesn’t have much appeal to me. It’s kind of like…. “okay kids are separated… How does this affect me?”

    And then you kind of think… How on earth does this relate to CJS? I think it would be effective to run a kind of “mindset” topicality where instead of splitting hairs, you say, what’s the whole intent behind this?

    Changing how immigration enforcement treats children.

    • cogdebate says:

      Personally, the way I would spin it is “The CJS is creating this problem, so let’s fix it.” I agree that it doesn’t have a lot or debater-appeal, but it has a TON of mom-appeal, which is ultimately what matters.

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