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This is factually false. E-verify is a thing. If you want to stop people who are not authorized to work from working, then mandating that employers actually check that their employees are authorized to work for them seems like an obvious step to take.
If you haven't even taken the step of mandating the use of e-verify for all employers, I don't believe you when you say "but we have to disappear people, it's the only strategy that could possibly work".
E-Verify is currently very easy to circumvent and would require an act of Congress, aka 60 senators, to fix. The current batch of senators cannot cobble together 60 who will vote for a clean continuing resolution because sunset provisions for a free money from the sky provision are going into effect.
Yes, the fact that one of the three branches of government has decided not to do their job does seem to be the root of the problem here.
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Nobody is getting disappeared. Everyone apprehended can be looked up on a public website. https://locator.ice.gov/odls/#/search
Nobody, you say?
So ICE arrested someone, detained him for 37 days in the hospital under armed guard, did not charge him with anything, denied him legal counsel, and used a pseudonym when registering him in the locator. That sure sounds to me like "ICE disappeared that guy".
If he was in the hospital ICE would have gone to a judge and obtained a hospital order wherein they explained to the judge why he could not be brought to court for his initial court appearance. The judge then changed his/her mind after this situation continued for such a long time that he/she deemed it unreasonable given the state of the case. Your ignorance of criminal law has allowed you to be propagandized.
You wanna bring receipts on that for this case? I can bring them for the proceedings leading up to the TRO, and I see nothing like that mentioned.
Well all the documents appear to be sealed....
Where are you seeing the sealed documents? I see some paywalled ones that haven't yet been added to RECAP but nothing before Sep 30. Am I looking in the wrong place?
The rest of the case is on PACER, there are several unavailable documents that, most importantly, stake out ICE's position, as well as the order granting the TRO.
However, if I take the judge's written orders at face value I think the original article was not as misleading as I had anticipated.
Basically, I thought the article was describing the normal application of 18 USC 3142(d) (and analogous provisions in the immigration law, particularly 8 USC 1226) and the associated rules of criminal procedure (such as rule 43) where a detention-eligible defendant is physically unable to be brought to court, in this case because he is hospitalized.
Instead, what appears to have happened is a very odd plan by ICE. I don't know why they did what they did, whether it was just laziness, forgetfulness, pants on head level stupid, or an intentional ploy to generate a test case.
Again, in a normal case, you'd file charges or file for removal and then go to a judge and say, basically, "hey we know the statute says we have to release this guy in 10 days, or have a detention hearing. We can't have a detention hearing because he can't come to court because he's in the hospital." Then the judge sets it over a few days or weeks depending on the diagnosis and then you have the hearing once they can come to court. ICE did not do this. Why is the question, because there were entirely well worn legal ways to keep this fellow detained.
Arguments for laziness/forgetfulness: This case is in California. ICE in California is essentially blockaded within its own facilities. To actually fingerprint and process the defendant requires them to get him into the facility or a similar facility (which local municipalities won't let them use), and then he'd have to be taken back to the hospital. This is a lot of work for essentially finalizing what in their mind is a formality. Once he's fingerprinted they know they have the right guy, and by the way he's in the hospital so he's not "really" being detained in that he can't go somewhere he needs to be.
Arguments for pants on head: This appears to be pants on head stupid. They could just file the right paperwork for a removal proceeding and have mooted this entire habeas petition.
Arguments for intentional test case: The petition itself appears to be highly focused on, and critical of what they call the DHS “Interim Guidance Regarding Detention Authority for Applicants for Admission,” which according to the petition "claims that all noncitizens who entered the United States without inspection shall now be deemed “applicants for admission” and subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A)." This is a new interpretation of the law that ICE and DHS appear to be intent to apply to this fellow. It is easy to see why, this new interpretation, if adopted by courts, would make their lives much easier. It also apparently has many other "test cases" pending which largely are being pursued in places like California that have mostly hostile judges, so DHS has fared quite poorly (at least according to the petition). On this last point, I think the petitioners really have a point. That new guidance is likely to fall and never be reviewed by SCOTUS because it is pretty dumb.
So, that is basically what I am able to glean from the very incomplete record in the case, because most of the documents are not available even to someone with a standard PACER account that normally gets you all the filings in most cases.
Wow, thanks for the scholarship. Amazing!
This seems like it could plausibly be the thing I was missing. Although I don’t think they need to take fingerprints to issue a NTA. Could be wrong about that though, not a domain expert here. If that's the case, and if ICE mentioned it in the documents that are not available through PACER but the judge ignored it, then I no longer think ICE was egregiously in the wrong here. Two ifs though.
Anyway, I'm pretty baffled by this case, it'll be interesting to see how it develops.
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If a federal judge can order ICE to release you, you have not been disappeared. You are very much in the system, documented, and his lawyers and the judge know his name even if the hospital does not, that's for sure.
In this case it looks like he got badly hurt during arrest and was taken to a hospital where he was admitted under a pseudonym and kept under guard. ICE says they were waiting for him to be released from the hospital and taken to their LA processing center before charging him. The judge said they had to release him from custody because they hadn't charged him yet. ICE did, and basically said they'd arrest him again after he gets out of the hospital and then charge him properly.
If your lawyer can talk to you and file court motions on your behalf, you have not been disappeared. When the NKVD showed up at your apartment in the dead of night and took you away, nobody saw or heard you again. That was proper disappearing! A lot of them were taken to the basement of the Lubyanka and shot in the back of the head.
Ok, I admit I don't have any documented examples of people being disappeared without a trace by ICE and never heard from again. I don't think things have to get to the point of "literally as bad as the NKVD" for us to go "wait a second this is not good and I want to see less of this" though.
We had this argument repeatedly during the "Maryland Dad" fiasco. The best example people could come up with for malfeasance was a missed piece of paperwork before quite properly deporting a human smuggling, wife-beating gang banger.
Napkin math suggests ICE is the most properly functioning government agency of all time. I'm honestly kind of shocked that there hasn't been any proper travesties.
You can look at the court filings yourself. Looks like a travesty to me. Discussed in more detail here.
And yeah having some travesties is unsurprising. The surprising thing to me is that someone is claiming that everyone detained can be looked up on a public website. "Everyone" is quite a high bar.
Oh, that looks like obvious malicious clown garbage. He has a broken leg. Why is he in the hospital for over a month with a broken leg? Unless that is understating his injuty to a hilarious extent, a broken leg is a couple hours of outpatient care and then getting released. Obviously this is a ploy to evade deportation, which ICE was trying to counter with the surveilance, and which this midnight Biden appointee, Hispanic activist judge is trying to shut down on ideological grounds.
You're right. It is a trravesty that that woman is a federal judge, abusing her position to subvert the rule of law for her ethnic nationalism.
Temperature check: do you think ICE should do whatever it takes to accomplish their goals, even when those goals involve behavior which is clearly unlawful, as long as they mostly limit unlawful behavior to people who are in the country illegally? If your answer is "yes", I'm not sure how productive of a conversation we can have here.
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What? I admit to being possibly out of date regarding orthopaedics best practice, but my impression is that most tibial +/- fibular fractures require operative management. Isolated fibular shaft fractures maybe? Even for conservative management it's going to be a cast and crutches and no weight-bearing on that leg for weeks, with at least a couple clinic visits. Certainly not to the extent that you can be so blasé as to say "couple hours of outpatient care then getting released"!
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“Disappeared” is what the NKVD did, what ICE is doing is called “arresting”. If you say people are being disappeared, you’re saying it has gotten to the point of being as bad as the NKVD!
Ok sure people are being held without charges for over a month and barred from meeting privately with legal counsel, and the tool linked upthread to find detainees wouldn't work for family members to find them, but that's not at the point where they've actually been fully "disappeared". It goes quite a bit beyond "arresting" but you're right that I shouldn't use the term "disappeared" until we have good evidence of people being kidnapped by ICE and never being seen again.
That said, talk about damning with faint praise! "This agency isn't quite literally disappearing people" is not the best defense I want to hear about the law enforcement agencies in my country.
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It does not appear he was "disappeared". Otherwise, how would the habeas corpus petition be filed in the first place?
The habeas corpus petition was filed on September 30. He was detained on August 27. That's a solid month. How long do you think is appropriate to hold someone without charging them?
On September 17th, 3 weeks after he was first detained, CBP informed him that they still hadn't assigned him an A-number - so
My non expert reading is that the judge is pissed at a level that is not normal. From the temporary restraining order
And looks like she's expecting malicious compliance from ICE as well
This guy had 2-4 guards posted 24/7 for over a month. Someone high up signed off on this, this can't be written off as a single agent acting alone. Seems pretty egregious to me..
That wasn't the question. The question is whether he was disappeared. He was not. I do not know why it took a month to file the petition.
It's quite possible ICE did wrong here. What they did not do is disappear someone.
I don't much care. Performative pissyness from judges seems to be pretty standard in political cases, and doesn't stop the judges from being overruled.
What if we amend "disappeared" to "breaking someone leg and unlawfully holding them in a hospital for 37 days without charging them and while making them hard to find for a month"
Are you fine with your government doing that to it's people? Weird hill to die on lol
Then
We still don't know if it is true. We know he was held in a hospital and we know he was ordered released. That does not mean he was held unlawfully before the order, nor that he was hard to find for the relevant people (the ones who filed the habeas petition)
We still don't know if the leg breaking was accidental or even justified.
Most importantly, it lacks the gravity of "disappearing". Even if ICE was in the wrong, it falls somewhere between an ordinary fuck-up and some form of small-scale misconduct. If the cops decide they don't like you, break your leg, and hold you in jail for 37 days, you will eventually get over it. If they "disappear" you, you're never seen again.
It is inevitable that ICE will fuck up sometimes. It is unfortunately also inevitable that they will sometimes engage in misconduct, for which any officers who do should be (but probably will not be -- and that's a law enforcement thing in general, not specific to ICE) punished. That's a lot different than "disappearing" people, whether as a more serious form of misconduct or (as has been implied here) a matter of policy. Trying to swap those out mid-conversation is a ridiculous goalpost move.
I'm a different person, that's why I said "let's move from disappearing" because I think that's kind of a silly word to use.
Otherwise actually agree with basically all of that.
My only quibble is that it doesn't seem like ICE is super concerned with avoiding misconduct, which maybe they're sloppier than the median law agency, or maybe they just appear to be.
Which brings me back to my original thesis, their optics are terrible
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But they wore masks while they did it, masks make people feel bad. That's basically the same as disappearing people, amirite?
This is low effort sneering. Don't do this.
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The
eVerify mandate[edit: sorry, not eVerify, but a card check] is old enough to vote; while it doesn’t apply to literally every business, it applies to almost all of them. Even outside of the error mode where every other Presidential administration unlawfully issues bulk work permits and mugs about standing to the courts, or shut down compliance audits, several Blue states have undermined it by the letter of the law and destroyed it in practice, and it’s biggest impact has been a burst of SSN fraud.E-Verify is also old enough to vote. It's just not mandatory at the federal level. It is mandatory in some states, so it's not like it's a half-baked system which wouldn't work at scale. It exists, and it works in practice, but it's still not mandatory everywhere. As far as I can tell nothing is preventing Congress from passing a law to make it mandatory, other than "congress has decided it no longer needs to do its job".
Anyway, I'm looking at the examples you gave:
Congress is doing its job of being partisan. Democrats do not want E-Verify to work, so they oppose legislation that would make it work. That isn't not doing your job, its just doing your job in a way that gets stagnant results. The fact that large numbers of Democratic voters prefer a functioning E-Verify, and overwhelming numbers of Republican voters prefer it is of no moment if they do not punish at the polls non-compliance with that desire. Republican voters have carried out that displeasure via Trump, Cotton, etc. Democrat voters have not punished this specific non-compliance with their expressed policy desires, so the elite Democratic party position remains unchallenged in law until enough voters get angry to put 60 yes votes in the senate.
Or they get rid of the filibuster.
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Illinois prohibits employers from using eVerify to any extent not mandated by the federal government, prohibits local jurisdictions from doing anything not mandated by the federal government (even for their own employees!), and requires employers to notify employees within 72 hours of receiving notification of an i9 audit.
California prohibits employers from complying with federal administrative warrants ("Documents issued by a government agency but not issued by a court and signed by a judge are not judicial warrants. An immigration enforcement agent may show up with something called an “administrative warrant” or a “warrant of deportation or removal.” These documents are not judicial warrants"), and from voluntarily providing any employment information. If you're willing to call the current state of eVerify a fishing expedition, that's on you, but I'm not going to take it seriously.
That, again, seems fine? My impression is that the stuff about voluntary vs involuntary search is that it mainly has to do with what evidence is admissible in court - law enforcement agents are going to be able to go where they want whether or not your cooperation is voluntary.
And in terms of documents, documents that are actually relevant to work eligibility are already covered as things that employers should cooperate with if there's an administrative warrant. My understanding is that what you can't do is hand over the Workday login to ICE and invite them to go on a fishing expedition unless you are compelled to do so.
All that said I am not a lawyer, maybe I'm reading the law wrong? ChatGPT agrees with my interpretation when I ask it, but it also agrees with your interpretation when I ask it.
The California bill has absolutely zero to do with what's admissible in court -- not just because immigration courts are federal processes where it can't apply, but also because it includes a fine aimed at employers who voluntarily cooperate with federal agents, or voluntarily provide documentation to federal agents.
The law requires employers to ignore administrative warrants for personnel records. It's in the FAQ you're quoting!
Or access to a nonpublic area of a workplace. Or specific employee records. Even if given an administrative warrant, you can not do so without risking tens of thousands of dollars per instance. Or to reverify existing employees, such as, just as a theoretical exercise, an employer isn't quite sure if they did that initial eVerify check.
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If you stop people from working, they are still in the country. If you disappear them, they disappear and are not in the country.
People come here to work. If they're not going to work, there's not much point in being here.
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