Holding DHS Accountable for Lawlessness: A Toolkit for Members of Congress

 Your casework and district team members are fielding inquiries from worried and frustrated constituents. If not already part of your practice, we encourage you to start keeping internal metrics of how often you are being contacted for assistance due to: immigration detention conditions, disappearances post-DHS arrest, and incidents involving DHS using force.

• Examine those metrics and break them out. Turn them into press releases, social content, or other public statements (without revealing identifying information about the constituent or their loved ones, unless they explicitly consent). 
• There’s room to get creative: for example, consider having a press conference at the site of an illegal ICE arrest to demonstrate the harm being experienced in your district or state. 
• Consider turning the metrics into a map to illustrate where immigrants have been arrested, supplemented by public reporting and data. This map can serve as a powerful visual of the communities in your district impacted by immigration enforcement and turned into a large graphic for press conferences or on the House or Senate floor. For offices that want to compare their own internal data or supplement data, Deportation Data Project’s arrests data is broken down by ICE Field Office. ICE has 25 field offices covering the entire nation. The Deportation Data Project analyzes the government’s own data.

• For every article about a child separated from their parent when ICE showed up at school, there are countless more stories that go untold. Consider proactively requesting stories from constituents through the various avenues you already use to communicate with them, including: your website, town halls, emails and newsletters, and social media. Check in regularly with advocacy organizations and mutual aid groups in your state or district to be connected with directly impacted.
•  When constituents are empowered to share what is happening in their communities, you are building solidarity and powering resistance—and most important, showing DHS that they cannot silence your constituents.

ICE’s Office of Professional Responsibility (OPR) is required to conduct reviews of all critical incidents at ICE.  The current complaint process allows for complaints to be filed “on behalf of” an individual. Your office will need to obtain a signed privacy waiver (Form 60-001) by the impacted individual. If the impacted individual is in detention, this can be challenging given detention conditions and transfers, but it is possible with the assistance of family, legal counsel, or local organizations.

CBP’s Office of Professional Responsibility is responsible for ensuring compliance with CBP programs and policies relating to misconduct, corruption, or mismanagement. Complaints can be submitted to the centralized CBP OPR Center. Your office should also send the complaint with an authorization form (Form 590) to the Joint Intake Center ([email protected]).

Many Members of Congress have put out brief, easy-to-digest reels and content on social media, calling out DHS for the agency’s outright lies and pointing to specific examples of illegal activity. Please keep this up and send your digital content to NILC so we can uplift! Here are some great examples:

• Senator Durbin shares ICE’s masking and extreme conduct in Chicago
• Senator Murphy calls out DHS propaganda covering up their violence (partnering with a news outlet to expand the video’s reach)
• Congresswoman Jayapal has held numerous shadow hearings and posted clips of those hearings or other public statements that call for oversight, highlight cruelty, and break down DHS lies.

Short content designed for social media is critical for mass audiences, but press releases, reports, and fact sheets help reporters, other elected officials (including state and local), and the general public access important information to shift public narratives and expose DHS’s lies—with the detailed receipts. Below are some great examples (and there are many more not linked here). 

• Illinois congressional Democrats released a comprehensive fact sheet debunking DHS’s misinformation campaign.
• Speaker Emerita Pelosi and Congressman Mullins issued a press release to remind federal agents they can be subject to arrest for breaking the law.
• Senator Ossoff is engaged in ongoing investigations resulting in powerful reports documenting human rights abuses in ICE detention.

After specific incidents that impact constituents, public calls for action can help drive pressure and spotlight the agents’ misconduct and even lead to a changed outcome. After illegal conduct, detention (especially when DHS separated a family), raids involving agent misconduct, and/or other concerning incidents, Members can:

• Call for release from ICE detention (we have seen this lead to reunification with constituents’ families and children).
• Hold a public briefing or presser and call on DHS to release the officers’ names who were involved in a shooting and additional details.
• Demand investigations by both DHS and the U.S. Department of Justice.

The House Oversight Committee Democrats have launched a Dashboard to hold the federal government accountable and monitor and create a public record of DHS misconduct that threatens civil rights, due process, and the rule of law. Please ensure your office submits incidents in your district or state to the Dashboard’s online reporting form. Please note that only incidents verified by reputable media outlets or referenced in litigation will be included in the Dashboard.

ICE’s spending on weapons has spiked by a stunning 600%. It’s no wonder that we are now seeing an uptick in fatal shootings. Officers conducting immigration enforcement have also shot and killed individuals including Silverio Villegas Gonzalez and Renee Nicole Good (both killed shortly after dropping off their children at school). Immigration agents are brandishing firearms, including pointing weapons in the faces of nonviolent protestors. CBP agents fired shots at a family who wouldn’t get out of their car as the masked agents surrounded their car and smashed the car windows. A CBP agent even bragged about his marksmanship after shooting a woman five times.

News feeds regularly show videos and images of DHS agents carrying out car crashes and rammings, and even smashing car windows. CBP agents crashed a car in a residential neighborhood—in a maneuver that is banned or restricted by many police departments.

In multiple cities, ICE and CBP agents have hurled flash-bang grenades, tear gas, less-lethal rounds, and pepper spray at unarmed civilians, including faith leaders, the elderly, and children.  They are deploying stun grenades, using armored vehicles equipped with battering rams, Black Hawk helicopters, and drones. Agents even tear-gassed a two-year-old.

We are seeing repeated neglect and endangerment of children—often U.S. citizens. In the parking lot of a Home Depot, armed and masked DHS agents arrested a U.S. citizen, and then hopped into his car and drove away with his 1-year-old child. In one family’s driveway, agents used a 5-year-old girl on the autism spectrum as “bait” to arrest her father. During a traffic stop, ICE agents beat a man holding a toddler, while the man was also having a seizure.

ICE and CBP agents consistently demonstrate that they believe laws and basic ethics do not apply to them. Just this month, an ICE employee was arrested for sex trafficking; when arrested, he said, “I’m ICE, boys.” A CBP officer recently pled guilty to bribery, drug trafficking, and human smuggling (this kind of corruption from CBP is, unfortunately, systemic and exploits vulnerable people).

Beyond the categories above, immigration agents are regularly deploying unnecessary and terrifying tactics. They put people in chokeholds in violation of use of force standards and national standards of care. At immigration courts, agents are slamming nonviolent bystanders and journalists against the wall and floors. One man reported his head was pushed forcefully into a wall while he was detained in a California detention center, where others witnessed detention staff “walking through housing units wearing gas masks and threatening to pepper-spray individuals.”

This policy authorizes use of force “only when no reasonably effective, safe, and feasible alternative appears to exist.”

This directive (i.e., the Parental Interests Directive) makes clear that “ICE personnel should not, under any circumstances, take custody of or transport the minor child(ren). . . [instead] ICE should remain on the scene with the Covered Individual until the designated third party, or the local child welfare authority or law enforcement agency assumes physical custody of the minor child(ren).”

• This policy (unredacted version), along with a full handbook, outline the “ICE Use of Force Continuum” for ICE agents making an arrest, beginning with “professional,  courteous demeanor; positive attitude.”
• Specifies that “[d]eadly force is not authorized solely to prevent the escape of a fleeing suspect. Deadly force against a fleeing subject is only authorized if there is probable cause to believe that the escape of the subject would pose an imminent danger of death or serious bodily injury to the officer or another person.”

This policy covers CBP actions and is relevant given the increased presence of CBP officers in the interior. Among other things, it prohibits the use of excessive force by CBP officers. An accompanying handbook serves as the complete reference for firearms and use of force procedures.

ICE Detention Standard 2.8 provides that, “Under no circumstances shall force be used to punish a detainee.” 

Non-citizens in the United States are guaranteed rights under the U.S. Constitution—most notably, the right to due process and the right to be free from unreasonable searches and seizures.

• Federal law outlines the powers of immigration officers and clearly limits officers’ authority to detain individuals without reasonable suspicion, or make  warrantless arrests without probable cause (and likelihood of escape).
• Federal regulations require adherence to standards for enforcement activities, including strict limitations on warrantless arrests, use of force (including deadly force), and identifying themselves as immigration officers authorized to make an arrest. 
• Vehicles exist for constituents to seek redress for violations of these laws and regulations, although they are limited. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 404 U.S. 388 (1971) authorizes constitutional damage suits against federal officials under limited circumstances; the Federal Tort Claims Act allows for damages against the United States, like this wrongful detention lawsuit on behalf of a U.S. citizen. And some states, like California, Maine, Massachusetts, and New Jersey, have laws that could authorize lawsuits for damages against federal officials who violate the U.S. Constitution.

In each state, the list of laws being violated by immigration agents is growing and could include: 

• Homicide
• Reckless Driving
• Assault with a Deadly Weapon; Felony Assault
• Battery
• False Arrest, False Imprisonment and/or Kidnapping
• Negligence
• Intentional/Negligent Infliction of Emotional Distress
• Child Endangerment

Federal agents who engage in unlawful behavior are subject to arrest, and responses available to state and local prosecutors include bringing grand jury charges against immigration agents or filing complaints. There is precedent for bringing charges like the ones above.