By Julie Shackford-Bradley
Recently, people gathered in campus to discuss how faculty might react if an ICE agent came to their classroom with the intention of removing an individual who was considered to be undocumented.
Before getting to the specific advice aimed at faculty–which is actually helpful for everybody–its important to address the elephant in the room, the criminalization of people who are here in the US without citizenship papers. Since its inception in 2002, ICE has accused people who live and work in the US without papers of committing crimes, when in fact they are committing civil violations. As the ACLU puts it:
No. The act of being present in the United States in violation of the immigration laws is not, standing alone, a crime. While federal immigration law does criminalize some actions that may be related to undocumented presence in the United States, undocumented presence alone is not a violation of federal criminal law. Thus, many believe that the term “illegal alien,” which may suggest a criminal violation, is inaccurate or misleading.
Criminalizing people is dehumanizing, and when a group of people are generally dehumanized, it’s so much easier to ignore when their rights are denied, or to turn the other way when people are exploited and abused. Or worse, to advocate for abuse and violence against them, which is happening right now.
In 2005, the US House of Representatives tried to pass a bill making undocumented presence in the US a felony, but thankfully, they failed. However, back in 1998, the US government had already increased the types of actions that would lead to deportation through the enhancement of the “aggravated felony” legal category. So if a person committed what is for a US citizen a misdemeanor, such as writing a check that bounces, driving without a license, or working with a false social security number, these are in essence elevated to the level of a felony in deportation actions for non-citizens. Further, a person who has been deported within 20 years commits a felony-level offense by re-entering the US. This allows people to inflate the number of so-called “criminal aliens” in the country.
Conflating civil violations with felonies allows people like Attorney General Jeff Sessions to insist that government officials in California are aiding and abetting “criminals” and to file a lawsuit against the state when they are actually trying to distinguish between people who have committed violent crimes and are a danger to society, and regular folks who may have made a mistake or not, and are trying to make a safe life here for themselves and their families.
Worse yet, ICE agents have been making a show of power by picking up people in courthouses, outside churches, on the job, in their backyards, and misrepresenting themselves as police.
With all that in mind, consider the situation of an undocumented student in a classroom at UC Berkeley. It’s not surprising that, in such a clearly unfair system, a system built on hateful legal shenanigans, people on campus would want to stand between this person, ICE authorities and worse, a horrific detention system and quasi-legal deportation system.
To put it another way, the RJ approach asks us to shift our thinking from what crime is being committed to who is being harmed, and what do they need to make things right… Thinking about UC Berkeley students who are “dreamers,” who lack documentation because of decisions others have made, its clear that the harm is coming from the authorities, representatives of a state that is at best dysfunctional and unable to create fair policy and at worst, looking for people to bully and harass.
One of the urgent questions of the ICE panel was whether a classroom in a public university is a public space into which an ICE agent is free to enter. While no one had the final answer on that, what was clear was that the faculty member could take a legal stand by
- demanding to see a warrant and determining that the warrant was a “judicial,” rather than an “administrative” warrant, (more on that below)
and/or telling the ICE agent: I can’t help you now, as you can see I am in the middle of class here. But you can talk to campus council and work things out with them.
It was determined that faculty could enter the number of campus council into their phones—(510) 642-7791—so that they could easily make that call, even if they had to interrupt their class to do so. Some faculty have reportedly told their students ahead of time that, should an ICE agent come to their class, they will let everyone go and call campus council.
The differences between a judicial and an administrative warrant are important. A judicial warrant is an official court document, usually with the designation of a specific court, and it is signed by a judge. This means that there has been due process backed by probable cause. These warrants pass constitutional muster.
An administrative warrant is simply a document signed by an ICE agent, stating that a person is being designated for possible arrest and possible deportation proceedings. An administrative warrant is not signed by a judge, nor does it pass constitutional muster.
You can find the different warrants online here to see the difference.
As panelists explained, a person does not need to open the door for or cooperate with an ICE agent who is most likely holding an administrative warrant. Further, as many already know, people should never answer the question “where were you born,” which is often asked in a non-threatening way by ICE agents to establish some probable cause.
Most notably, we were informed, a person is not required to show their ID to any law enforcement in California without probable cause. You only have to say your name and your birthday.
UC Berkeley also has a rapid response team in place to address any incident in which ICE comes to campus in real time. The RRT will determine if the report is credible, take action, and also, get the word out to campus that ICE is on the premises. It sounds like the RRT wants to reduce the level of anxiety and panic on campus by making an effort to get and disseminate correct information in real time.
At this time of heightened anxiety and uncertainty for communities where not everyone is a citizen, people can be ally by supporting the rights of those who are being questioned or worse, tracked down by immigration authorities. As panelists noted, people who are under pressure may forget to claim those rights in the heat of the moment. Knowledgeable bystanders can step up at those moments to act as needed.
Julie Shackford-Bradley is the Director of the Restorative Justice Center at UC Berkeley.