ICE Insists That Congress Needs Its Permission To Conduct Oversight
But that's not what the law says.
This week, U.S. Immigration and Customs Enforcement (ICE) released new guidance on "facility visit and engagement protocol for Members of Congress and staff."
"ICE detention locations and Field Offices are secure facilities. As such, all visitors are required to comply with [identity] verification and security screening requirements prior to entry," it specified. "When planning to visit an ICE facility, ICE asks requests to be submitted at least 72 hours in advance."
Incidentally, it's perfectly legal for members of Congress to visit ICE detention facilities, even unannounced. And ICE's attempt to circumvent that requirement threatens the constitutional system of checks and balances.
The Further Consolidated Appropriations Act of 2024, which funded the government through September 2024, specified that the Department of Homeland Security (DHS) may not "prevent…a Member of Congress" or one of their employees "from entering, for the purpose of conducting oversight, any facility operated by or for the Department of Homeland Security used to detain or otherwise house aliens" or to modify the facility in advance of such a visit. It also clarified that the DHS cannot "require a Member of Congress to provide prior notice of the intent to enter a facility."
ICE's new guidance tries to get around this by stipulating that "ICE Field Offices are not detention facilities and fall outside of the [law's] requirements." Nevertheless, it adds that "while Member[s] of Congress are not required to provide advance notice for visits to ICE detention facilities, ICE requires a minimum of 24-hours' notice for visits by congressional staff" (emphasis in the original). Further, "visit request[s] are not considered actionable until receipt of the request is acknowledged" by ICE.
The new rules also stipulate that visiting members of Congress may not bring in cellphones or recording devices, they must be escorted by ICE staff at all times, and they may not "have any physical or verbal contact with any person in ICE detention facilities unless previously requested and specifically approved by ICE Headquarters."
In recent weeks, Democratic lawmakers have tried to enter ICE facilities, only to be turned away or threatened with imprisonment. Last week, authorities charged Rep. LaMonica McIver (D–N.J.) with three felony counts of assaulting, resisting, or impeding federal officers. McIver and other lawmakers visited Delaney Hall Federal Immigration Facility in Newark last month. A scuffle apparently ensued when authorities arrested Newark Mayor Ras Baraka for trespassing, though those charges were later dropped.
This week, four members of Congress who visited the ICE Processing Center in Broadview, Illinois, were apparently denied access when they arrived. "We have reports that immigrants are being detained here without access to their attorneys, sleeping on the floor and without food," Rep. Chuy Garcia (D–Ill.), one of the members in attendance, alleged in a post on X.
The DHS replied from its official account, "Congressman, all members and staff need to comply with facility rules, procedures, and instructions from ICE personnel on site."
On Wednesday, Reps. Jerry Nadler and Dan Goldman (D–N.Y.) visited an office in Manhattan where migrants were allegedly being kept, only to be denied entry by Bill Joyce, the deputy director of the field office. Joyce denied it was a detention facility, saying that even though migrants were being kept on-site, ICE was simply "housing them until they can be detained."
In video captured at the scene in Manhattan, Goldman said he and Nadler had requested permission to visit—even though they "have the authority to show up unannounced"—but were denied.
This isn't uncharacteristic of the agency: Earlier this year, ICE agents denied Reason's C.J. Ciaramella access to an immigration court at a federal detention facility in Miami, in defiance of both federal law and guidance listed on the agency's own website. (ICE later admitted the facility was "open daily to the public.")
Regardless of the actual conditions of any ICE facility, it's clear Congress' intent was to establish its legislative oversight role over an executive agency. Checks and balances are a key feature of American government: Each of the three branches has the power to keep the others in check.
For ICE to claim an all-encompassing right to operate in the dark, apart from the prying eyes of even a co-equal branch of government, flies in the face of the Constitution's clear meaning.
"This unlawful policy is a smokescreen to deny Member visits to ICE offices across the country, which are holding migrants – and sometimes even U.S. citizens – for days at a time. They are therefore detention facilities and are subject to oversight and inspection at any time," Rep. Bennie Thompson (D–Miss.), the ranking member on the House Homeland Security Committee, said in a statement. "There is no valid or legal reason for denying Member access to ICE facilities and DHS's ever-changing justifications prove this….If ICE has nothing to hide, DHS must make its facilities available."
