Answer: How do ICE agents identify individuals to question without relying on racial profiling, and what guidelines do they follow?
For context, this is a question I answered on Quora
They in fact do rely, at least partially, on racial profiling, which has lead them to detain and even arrest members of federally recognized Indian tribes who are phenotypically similar to mestizos from central and south America (the main target of deportations).
Recently, an Iowa county jail issued an ICE detainer for an Amerindian inmate likely because she looks latina. It was only after her entire family rallied around her, just hours before the jail planned to transfer her to ICE custody, and provided extensive documentation of her citizenship that the jail corrected their “clerical mix-up.”
When her sister confronted jail staff they had this insightful response:
‘Well, we don’t know because we’re not immigration and we can’t answer those questions. We’re just holding her for them. So, when they pick her up tonight they’re going to go ahead and deport her to wherever they’re going to take her, but we have no information on that.’”
Where exactly they would deport her to god only knows. Maybe Siberia with Putin’s permission thought I don’t think it’s the same place it was 20,000 years ago.
And this is not a one off clerical mistake but a systematic problem. The jail staff and Polk County Deputies have a partnership with ICE through a 287(g) agreement that provides them training to perform some immigration enforcement tasks and allows them to issue detainer requests to ICE without probable cause of an inmate being illegally present in the U.S. Thus, the detainer requests allows them to hold an inmate 48 hours after their scheduled release time without probable cause. At the time of this woman’s arrest she had her tribal id on her and the jail had her SSN on file, but apparently that was not enough proof of her legal status.
Several others from different federally recognized tribes have reported being detained by ICE presumably based on their appearance. The Navajo Nation has reported that at least 15 of their members have been detained and questioned by ICE this year, in various Arizona and New Mexico cities. Other southwest tribes have reported that their members who have been detained are often interrogated in Spanish despite being native English speakers (another hint that phenotype plays a large role in detainment decisions). During one workplace raid in Scottsdale, AZ several Navajo members were detained in the parking lot of their workplace and questioned in Spanish.
They were speaking in Spanish, and when an agent came to me, I said, “I don’t understand what you’re saying.” Then he changed his tone. He was like, “I’m sorry, I thought you were Hispanic.” I said, “No, I’m Native American.” He asked me for identification. I said that I had my identification on my phone, and he told me to go ahead and take it out. I showed him my Certificate of Indian Blood and he let me go. It could have been easy for me to say, “You know what, where’s your identification? You’re on my land.” But I didn’t do that. It would have triggered a problem for me.
ICE ended up releasing her and her co-workers only after they proved their innocence i.e. citizenship something everyone else would recognize as ass backwards in any other legal context.
Some of these ICE tactics might stem from Trump’s animosity towards birth right citizenship. In response to 22 states that sued the Trump admin to stop his EO 14160 unilaterally reinterpreting the 14A birth right citizenship, the Trump DOJ used 19th century case law that excluded Indians from citizenship, such as Elk v. Wilkins and the Civil Rights Act of 1866, to argue, in their opposition to plaintiff states motion, that children born to illegal alien parents were excluded from citizenship.
The Supreme Court’s decision in Elk v. Wilkins, 112 U.S. 94 (1884), confirms that the children of non-resident aliens lack a constitutional birthright to citizenship. In Elk, the Court held that, because members of Indian tribes owe “immediate allegiance” to their tribes, the are not “subject to the jurisdiction” of the United States and are not constitutionally entitled to citizenship. Id. at 102. Indian tribes occupy an intermediate position between foreign States and U.S. States. See Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (Marshall, C.J.) (describing Indian tribes as “domestic dependent nations”). The United States’ connection with the children of illegal aliens and temporary visitors is weaker than its connection with members of Indian tribes. If the latter link is insufficient for birthright citizenship, the former certainly is.
Of course this line of argument might have been convincing in the late 19th century, but the SCOTUS decision in States v. Wong Kim Ark (1898), granting birth citizenship to a child of Chinese nationals, and the Indian Citizenship Act signed into law by Calvin Coolidge a century ago has made it null and void on its face.
Current SCOTUS has also affirmed, in Noem v. Vasquez Perdomo, that racial phenotype can be used as one criteria among many for establishing reasonable suspicion in immigration enforcement. In his concurring opinion, Justice Kavanaugh wrote:
‘To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors. Id., at 887.’
How much weight this criteria can be given in immigration enforcement was never specified by any court, which legally leaves the door open for racial profiling to be the primary criteria used in immigration stops and detainment. This is really not much different than the old NYPD policy of stop and frisk just more honest about the pretense.