How to Deal with ICE

President Donald Trump has taken a hardline stance over immigration since his inauguration.  President Trump declared a “national emergency” at the southern border, claiming the United States is being invaded by undocumented aliens.  His administration has sent active duty troops to help with the erection of new border barriers, closed off access to the CBP One app, restricted asylum protections for incoming immigrants, and has cleared the way for immigration authorities to raid schools, churches and hospitals to detain individuals who they suspect are in the country illegally.  

President Trumps flurry of declarations and executive actions regarding immigration have placed many immigrant families in fear of prolonged detention, separation, and deportation.  This has led many non-citizens left wondering whether their rights are being stripped away.  

With the increase in aggressive enforcement actions by the Trump administration, it is important for immigrants to know their rights if they should encounter Immigrations and Customs Enforcement (ICE) agents.

What are my rights?

First, it is important to establish that regardless of your immigration status, you are always entitled to certain rights in the United States.  These rights include the right to due process, the right to an attorney (in criminal matters), the right to remain silent, the right against unreasonable searches and seizures, and the right to an education.  Under the United States constitution, these rights apply to all “persons,” not just citizens.  For example, the Fifth Amendment of the constitution states that “[n]o person shall be deprived of life, liberty, or property without due process of law.”  Similarly, the Fourteenth Amendment establishes that no states shall “deny any person within its jurisdiction the equal protection of the laws.”

Here are some of the most important rights that all people have in the United States:

• The Right to Due Process
  • • Under the 5th and 14th Amendments of the United States Constitution, all people have the right to a hearing in a court of law before the government takes away their life, liberty or property.
      
    • Neither the federal government nor any state can hold you in detention or take away your property without respecting a legal process.

• The Right to legal counsel
  • • The Sixth Amendment of the United States Constitution guarantees the right to legal counsel in all criminal proceedings. It is important to note that deportation proceedings are civil proceedings.  So, while undocumented immigrants have a right to counsel in deportation proceedings, the Government does not have to provide them an attorney if they cannot afford one.  However, if they are charged with an immigration crime where they are facing the possibility of jail time such as Illegal Reentry or smuggling or harboring of undocumented aliens, then they are entitled to an attorney to defend them against the criminal charges and can have one appointed to them if they are unable to afford one.

• The Right against unreasonable search and seizure
  • • The Fourth Amendment of the United States Constitution prevents the Government from entering your home or searching your belonging without a warrant or probable cause.  There is one very important exception to this rule called the “border search exception” which allows the government to conduct warrantless searches of any individual who attempting to enter the country.  This includes at any international airports, ports of entry, or border crossings.

What are my rights with the ICE?

The constitutional rights listed above bestow you with certain rights if you have an interaction with an official from ICE.  Here are some of your most important rights if you are an undocumented immigrant and you come face to face with an ICE official

• You have the right to remain silent
  • • You do not have to answer any questions about your immigration status.  You can tell any ICE official or police officer that “I choose to invoke my right to remain silent.”  No government official can use the fact that you invoked your right to remain silent against you.  This is one of the most important and powerful rights that undocumented aliens have in any interaction with government officials.  If you invoke your right to remain silent, government officials must cease all questioning immediately.

• You have the right to an attorney
  • • While the government does not have to provide you with an attorney in all cases, you still have the right to consult with one before answering any questions or before appearing before a judge.  You can tell the any government official “I would like to speak with an attorney.”  If you invoke your right to an attorney, government officials can no longer interrogate you.

• You have the right to refuse any searches
  • • You do not have to consent to a search of your home, your car, or your person.  For an ICE officer or a police officer to search your home, they must have a warrant signed by a judge. An ICE deportation warrant is NOT the same as a search warrant because ICE deportation warrant is an administrative warrant and not a judicial warrant.  Deportation orders are usually signed by an immigration officer or an immigration judge.  Neither one can have the authority to sign a search warrant.
    • You also do not have agree to a search of your belongings, including bags, purses, or your pockets.  You can tell ICE officers that “I am not consenting to any searches.”  Keep in mind immigration officials have the right to search you at or near any border crossing.  This does not mean you should consent to a search even if you are at a port of entry or near the border.

What should I do if ICE knocks on my door? 

If ICE agents knock on the door of your house, here are some important things to keep in mind:

• You do not need to open the door.
  • • Unless ICE agents have an arrest warrant or a search warrant signed by a judge, you do not have to open the door to your home.
    • If ICE agents say they have a warrant, ask them to slide the paper under the door so you can review the warrant.  
    • Review the warrant.  The warrant must be signed by a judge (not an immigration officer or an immigration judge), it must have your correct name, and, if it is a search warrant, it must have the correct address and description of the residence where you are allegedly located.
    • ICE agents are not allowed to knock down your door or open your door by force if they do not have a search warrant or an arrest warrant signed by a judge.

• You have the right to remain silent
  • • If ICE officials do come into your home with a valid warrant, you do not have to speak with them.  
    • To cease further questioning from ICE officials or any law enforcement officers, you must be clear and unequivocal about your desire to remain silent.  The law requires you to affirmatively assert out loud “I want to invoke my right to remain silent.”  Asking the question, “Can I invoke my right to remain silent,” is not sufficient because it is a question and not an assertion of a right.  You must state clearly that you are invoking your right to remain silent, not merely ask if it is possible.
    • You do not have to state where you were born or how you entered the United States.
    • You should not lie to law enforcement officers and you should not present any false documentation.  It will only make matters worse.

• You have the right to speak to an attorney
  • • If ICE officials detain you, you can immediately ask to speak with a lawyer.
    • A lawyer can advise you before any questioning and speak to ICE agents or law enforcement on your behalf.
    • You also have the right to speak to your consulate.  Your consulate may assist you in finding a lawyer to represent you.

• You do not have to sign any documents
  • • You have the right to refuse to sign any documents that ICE officials ask you to sign.
    • You may speak with an attorney before agreeing to sign any documents that are presented to you by ICE.

What should I do if ICE comes to my place of work?

If ICE comes to your place of work to conduct a raid, here are some important things to know:

• They are not allowed in private areas of the workplace
  • • ICE officials only have authority to enter the public spaces of workplaces, such as the lobby, parking lot, or waiting area of the business.  They cannot enter the private areas of a business such as an employee breakroom without permission or without a valid search warrant signed by a judge.

• All employees have the right to remain silent
  • • All employees, including those that are not under investigation by ICE, have the right to remain silent and not speak with immigration officials.
    • ICE officials cannot force an employee or employer to speak with immigration officials.

What should I do if ICE pulls me over while driving?

If you are driving in your vehicle and you are pulled over by a local police officer, you do not have to answer questions about your immigration status.  Some states require you to present identification to a police officer if they request identification.  Similarly, you may be required to show proof of vehicle registration and proof of insurance.  However, even if you must present identification to a police officer in your state, you do not have to answer questions regarding your immigration status.

If you are pulled over by an ICE official, the most important thing to know is that you do not have to answer questions about your immigration status. Again, if you are undocumented, and you are pulled over by an ICE official, you have the right to remain silent.  Also, if an ICE official only has a deportation warrant signed by an immigration judge, this does not give them the power to search the vehicle.  You may refuse a search of the vehicle and a search of your person.

What if I am questioned by ICE officials at the border?

In order to enter the United States, you must answer questions about your legal status.  You may be denied admission to the United States if you are unable to prove that you have legal permission to enter or remain in the United States.

Some constitutional protections are weakened if you are at or near a border of the United States.  For example, there is also something called the “border-search exception” that allows federal authorities to search a person and their belongings without probable cause or a warrant if that person is entering the United States at land crossing or port of entry.  This law is well established and even extends to searches of electronics.

Immigration officials also have increased enforcement authority if they detain you within 100 miles of any border in the United States.  For example, they may board buses, trains or planes without a warrant if they are within this 100-mile zone and question passengers about their immigration status.  Government officials still must have reasonable suspicion to detain you.  However, they can ask you questions regarding your immigration status and detain you if they have reasonable suspicion that you are in the country illegally.

If you are here on a non-immigrant visa, you should always carry your immigration documents with you in case you are detained by immigration authorities.