CIS’s Inaccurate Response to Cato Brief on ICE Detainers for Americans

Dan Cadman of the Center for Immigration Studies (CIS) has written a blog post purporting to identify issues in a short brief that I wrote about U.S. citizens in Texas for whom ICE filed detainers. In it, he makes numerous inaccurate and unsupported assertions. Cadman presents zero evidence to rebut the conclusion of the brief and instead accuses an ICE supervisory officer of perjury because his statements fail to support Cadman’s position.

My brief uses data from Travis County, Texas to identify people who claimed U.S. citizenship and presented Social Security Numbers to local authorities, but ICE submitted a detainer request for them anyway, only to later cancel or not execute it. Cadman responds:

While it's true that people who later prove to be U.S. citizens sometimes find themselves in removal proceedings (something I've previously commented on and explained), most often this occurs because an individual doesn't even know he is a U.S. citizen. . .

In his link in support of his “most often” claim, he cites a single case where the person didn’t know he was a U.S. citizen, while we know of many individual cases in which detainers were filed for U.S. citizens who asserted their citizenship at the start of the process (here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, etc.). In any case, every person in my brief asserted U.S. citizenship at the outset from the time of their booking by Travis County Sheriff’s Office until ICE finally cancelled their detainer. Cadman continues:

[Bier] would have us believe that ICE agents actively "target" American citizens even though it is clear that they have no hand at all into what individuals are arrested by police and booked into Travis County (or any Texas) jail, and merely respond to the information passed to them as a consequence.

I never claimed that ICE agents “actively” seek out people who they know are American citizens. As I wrote in the executive summary of my brief, I state that these are “mistakes” that ICE only belated attempts to correct. In any case, if a law enforcement agency arrests hundreds of innocent people, it is perfectly legitimate to say that hundreds of “innocent people” were targeted by that agency, even if the individual agents didn’t know or intend to target innocent people. Moreover, it is incorrect to claim that ICE agents “merely respond to information passed to them”—Travis County Sheriff’s Office doesn’t make assessments of removability or citizenship, nor do they issue detainers. ICE makes those determinations.

Cadman attempts to argue that even though ICE canceled the detainers for these people, we cannot suppose that it was because they were U.S. citizens. He attempts to sketch out what he believes is happening:

ICE agents don't, nor should they, always accept such assertions [of U.S. citizenship] at face value because they know the frequency with which false claims are made. One strategy they exercise is to immediately file the detainer while concurrently obtaining the release date of the individual being held by the police. They then work against the clock to either verify the claim or disprove it. . . . Keep in mind that when ICE agents withdraw a detainer, it doesn't mean the claim isn't false — it just means they couldn't break it in the time frame they had to investigate.

If this is what ICE agents are doing, it would violate current ICE policies, which require agents to issue detainers based on what they believe to be is “probable cause” of removability. A simple assertion of U.S. citizenship would never overcome a determination based on actual probable cause (such as a biometric record of a prior deportation). In the bad days before even agent-determined probable cause was required, an assertion of U.S. citizenship would not have triggered cancelation either. Again, ICE would require the U.S. citizen to substantiate the claim first.

Cadman’s scenario implies that ICE agents are issuing detainers for people claiming U.S. citizenship based on their gut instincts and then hoping to prove that the person is lying before they are released. If this is what is occurring, it would indeed explain why U.S. citizens are regularly targeted by ICE as well as showing that the agency is breaking its own policy. That is a poor defense of ICE’s actions.

In any case, my brief quoted court testimony under oath from ICE Supervisory Detention and Deportation Officer John Drane from Rhode Island stating that, in fact, a detainer canceled for a person claiming U.S. citizenship is almost certainly because they were a U.S. citizen. Cadman responds:

while even ICE agents in the northeast would not be completely immune to the phenomenon of false claims, the claims would be of a significantly smaller scale and different character from those in Texas. This would certainly have had an impact on how Drane framed his response to the question of withdrawing a detainer, because his experiences would be nothing like those of ICE agents working in south or central Texas.

This is simply incorrect. The rate of U.S. citizenship claims overall was actually higher in Rhode Island around this time (7.2 percent) than in Travis County (5.7 percent), so Drane dealt with the same issue: some people do make false claims, while others, including the litigant in the case, make valid claims of U.S. citizenship when targeted with detainers. Cadman continues:

The time frame of Drane's deposition (April 2015) is also significant. In November 2014, President Obama and then-Homeland Security Secretary Jeh Johnson announced a host of new "executive actions" that would govern how immigration agencies administered their responsibilities. . . . . many detainers were withdrawn as not meeting the new criteria of criminality drawn up by Secretary Johnson and his cohorts. . . .

Cadman presents no data or even anecdotes to support the claim that many detainers were withdrawn due to the Jeh Johnson enforcement criteria. In fact, the Johnson policies changed the criteria for issuing a detainer, so detainers for people who were not subject to enforcement priorities were not issued to begin with, leading to a significant decline in detainers issued. In any case, 90 percent of the U.S. citizens identified in my brief were targeted before Johnson’s new enforcement priorities were in effect or after the Trump administration rescinded them. In addition, the rate of cancelations for people claiming U.S. citizenship actually decreased during those years. Cadman continues:

It's not a surprise that Drane avoided speaking to these very real, very major reasons that many detainers were withdrawn by ICE. One can surmise that he sidestepped the issue of agents being obliged to cancel detainers under the imposed-from-above priority system for fear of his job.

Here, Cadman actually accuses an ICE supervisory agent of lying under oath to avoid disclosing the reasons for the detainer cancelations. I don’t understand how Cadman can have complete faith in ICE under some circumstances while assuming the worst about them in others without any evidence. More importantly, Cadman’s claims about Drane are simply false. He has zero incentive to lie. The Obama administration was not hiding its looser enforcement policies in 2015—it was bragging about them. More importantly, in the context of this case, Drane is admitting something that would place blame on his office for wrongfully targeting U.S. citizens—something that the Obama administration would certainly not want to disclose. Lastly, why would he risk potential jail time by perjuring himself on this point? It simply makes no sense. Cadman concludes:

Bier has taken what are clearly dubious conclusions about the number of U.S. citizens against whom detainers were filed in the Travis County jail after arrest for criminal offenses, and then through extrapolation and aggregation, applied them to assert that, if this many were caught up in ICE "targeting" of citizens in the county, then as a matter of simple multiplication one can derive how many U.S. citizens must have been "targeted" statewide. . . . . Each county and each state is sufficiently unique in population and demographics that using any one of them to extrapolate to a whole is different entirely than using legitimate random sampling techniques.

Cadman is correct that a state-wide random sample would provide far more useful data. Every county in Texas should release this information if they have it. But the data that we do have allow us to learn something about Travis County, at a minimum. Maybe Travis County is an outlier in either direction, we simply don’t know, but I never claimed that my extrapolation from Travis County to the whole state of Texas is anything but an estimate.

Travis County, Texas is the third largest recipient of detainers in the state of Texas, providing a significant sample of the detainers in the state. Moreover, the dynamics in Travis County are substantially similar to other counties in Texas—all are fairly close to the border and all are subject to Texas law with regard to immigration enforcement. Cadman takes issue with my hedging this extrapolation, but that is simply what prudent analysts do when the evidence is incomplete.

My brief shows that ICE often issues detainer requests for people who claim U.S. citizenship and present Social Security Numbers to local authorities, only to then cancel those requests. The best explanation—based on ICE policies and ICE testimony—is that ICE issued detainers for hundreds of U.S. citizens. It is noteworthy that ICE itself in a statement to the Washington Post did not use any of Cadman’s poor defenses, but only asserted that it works to improve its processes over time. That may be true, but severe deficiencies still remain.