Preparing Yourself for Immigration Enforcement

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The three immigration agencies of the U.S. Department of Homeland Security (DHS) — U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS) — have, in recent years, used increasingly aggressive tactics to intimidate immigrants and coerce them into cooperating with federal immigration enforcement. The three immigration agencies — ICE, CBP, and USCIS — share the same immigration enforcement power and the same immigration subpoena power. ICE is responsible for immigration enforcement in the interior of the U.S. while CBP is the agency responsible for enforcement at or near the nation’s borders as well as functional equivalents of the border. In contrast, USCIS’s main function is to process and make decisions about immigration relief, immigration status, and citizenship–related applications. USCIS does not, nor is it authorized to,engage in the types of immigration enforcement that ICE and CBP do.

These immigration enforcement agencies use different tactics to gain compliance, so it’s essential to understand your rights when facing immigration enforcement. This article will provide and explain the following:

  • What to do before, during, and after an immigration arrest
  • How to distinguish between judicial and administrative warrants and their corresponding immigration administrative documents

Know Your Rights

  • The Fourth Amendment of the US Constitution
    • ICE and CBP’s power to enforce immigration law —referred to in this fact sheet as “immigration enforcement power” — is limited by our Fourth Amendment constitutional right to be free from unreasonable searches and seizures of persons or objects. [U.S. CONST. amend. IV. (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”).] Under the Fourth Amendment, a search or seizure against you is unreasonable if you had a reasonable expectation of privacy in the area searched or items seized1. You had a reasonable expectation of privacy if, at the time of the search, (1) you had an actual (subjective) expectation of privacy in the place or things searched, and (2) your expectation was one that society recognizes as (objectively) reasonable.
    • Thus, the Fourth Amendment functions as an important limit on both immigration enforcement power and immigration subpoena power. Still, immigration agencies continue to test the limits of Fourth Amendment protections by seeking new ways to conduct enforcement activity and compel people to hand over sensitive information. Their most common forms of doing so are through the increased use of immigration warrants and immigration subpoenas and by inducing consent by presenting warrants or subpoenas to the people they’re targeting for enforcement.
  • The Fifth Amendment of the US Constitution
    • You have the right to remain silent when questioned by any law enforcement agency.
    • You have the right to an attorney. If you cannot afford an attorney, the court will appoint one for you.

Remember: For any local, state, or federal law enforcement agency, you have the same constitutional rights. You have the right to be free from unreasonable searches and seizures. You have the right to remain silent and not to answer questions from law enforcement officers. Exercise these rights.

Before an Immigration Arrest: Develop an Emergency Response Plan

A. Before an Immigration Arrest: Develop an Emergency Response Plan

  1. Keep all your important documents (including passports, birth certificates, marriage certificates, car ownership certificates, property ownership certificates, and all other immigration documents) in an easily accessible place. Ask family members or close friends to keep copies of these documents in case they are needed.
  2. Speak with a trusted immigration attorney to assess your individual immigration situation. Always have the number or card of a respected legal service provider or immigration attorney in case of emergency. Your family should also have these numbers. Memorize that family member’s number.
  3. Have an emergency plan at your place of work. Ask if your coworkers are willing to stay silent and ask to speak with an attorney in the event that immigration comes to your workplace. If your workplace has a union, speak with the union representative to better learn how to prepare in case immigration comes to your workplace.
  4. Have a plan to protect your family: (1) Prepare a “Delegation of Parental Authority” form to ensure the proper care of your children with a relative or family friend in case you are detained or deported. (2) Obtain a valid passport for your children. If your child is a citizen of the United States, obtain a passport for them as soon as possible. They will need this to travel outside of the country and prove citizenship later; if your child is not a citizen of the U.S., apply for a passport at the consulate of their country of citizenship; (3) Register your child as a citizen of your country at that country’s consulate.

B. During the Arrest: What to Consider During the Arrest

What should I do if I am questioned by the police or immigration officers?

You have the right to ask if you are being detained or arrested:

  • If the officer says “No, you are not under arrest or being detained”, ask them if you are free to leave. If they say yes, slowly and calmly walk away.
  • If the officer says “Yes, you are under arrest and/or being detained”, then you have the right to remain silent!

If you have valid documents: show them to the officer and always carry them with you

  • If you are a student on an F-1 visa, carry your I-94 record: foreign nationals 18 years of age and older are required by law to carry proof of their immigration status (also known as a “certificate of registration”). Your most recent I-94 record is this proof of registration. You can take a screenshot of your most recent I-94 record (not your travel record) and save it on your phone for easy reference.

If you don’t have valid US documentation:

  • Don’t answer any questions. You have the right to remain silent (“I am going to remain silent”).
  • Do not show false documents.
  • Say only “I need to speak with my attorney.”
  • You do not need to say anything about where you are from or how you came to this country.
  • Show the officer your “Know Your Rights” card (see end of article).

In short: don’t show fake ID and don’t tell lies!

C. What Should I Do if Immigration Authorities Come to My House?

  1. If the police, immigration agent or other government agent tries to enter your house:
    • Do not open the door. It is very important to ask them if they are the police or immigration. (Sometimes, immigration agents will say they are the police, so ask them very specific questions.) Pass the card at the end of the document through an opening underneath the door.
    • If it is an immigration agent/officer, they are usually not allowed to enter unless you open the door or give them permission to enter. Talk through the door. If you open the door a small amount to talk, the agent might say that by opening the door you gave consent to enter.
    • Any law enforcement officer needs a search warrant to enter your home. A search warrant is a paper signed by a judge that authorizes the officer to enter your house. The warrant should say in detail who the person is that the officer is looking for. If they have an arrest warrant but not a search warrant, they are not legally able to enter your house. (For more information on the differences between different types of law enforcement warrants, see Part 3 of this article.)
  2. If an officer enters your home: Write down their name and badge number, tell them you have not given consent to a search, and take down the names, addresses, and phone numbers of those present.
  3. Do not run – it is not safe to run.

D. What Should I Do if Immigration Authorities Come to My Workplace?

  1. In order to enter your place, the officer must have a warrant from the judge or permission from your employer.
  2. Do not run – it is not safe to run.

E. What Should I Do if Immigration Officers Stop Me in Public?

  1. They should have a proper order/warrant to do so; ask to see it.
  2. If they don’t have an order, they must have specific facts that make it reasonable to believe that you are not in this country legally.
  3. You may ask if you’re free to leave and calmly walk away if you’re told you’re free to leave.

F. What Should I Do if I’m Arrested?

  1. Find out who has arrested you
  2. Do not sign any documents you do not understand before speaking with an attorney
  3. Contact your attorney or a family member
  4. Contact your consulate
  5. Ask the judge if you are eligible to be released on bail

G. Important Information About Immigration Detention

  1. Q: How long can the local government detain a person with a detention order from ICE?
    A: According to federal regulations, a person detained pursuant to an immigration detainer cannot be held for more than 48 hours, excluding Saturdays, Sundays, and holidays. The 48 hour period starts to run after the local or state police would have released that person from their custody for any underlying offense.
  2. Q: What happens once the 48 hours have passed?
    A: Because an ICE detainer only allows for an individual to be detained for 48 hours beyond what is permitted by state or local law, the detained individual should be immediately released after the 48-hour period has ended. After this period, you and/or your attorney should ask that you be released if you are not released automatically.
  3. Q: What happens if the jail continues to detain you when the order has expired?
    A: If your immigration detention order has expired and you have no other criminal charges, the jail is illegally holding you. You should contact a lawyer immediately.
  4. Q: Regarding bonds
    A: The 48-hour period starts when you were supposed to be released or when you paid the bond. Even if you paid the bond set by the local court, ICE can still arrest you.

H. After Arrest (Rights While in Detention)

You have the right:

  • Not to sign declarations or documents, particularly the ones you do not understand, and especially those that give up your right to a hearing before a judge. You can say that you would like to speak with a lawyer before signing.
  • Not to offer information about your immigration status. What you say can be used against you in Immigration Court.
  • To contact your consulate.
  • To make a call after you have been detained. Memorize the number of your lawyer or a family member and call them immediately.
  • To ask for a bond. You should always ask for bond or a bond hearing.
  • To have an interpreter at your hearing.

Distinction Between Law Enforcement Warrants

  • A judicial warrant is a formal written order authorizing a law enforcement officer to make an arrest, a seizure, or a search. A judicial warrant is issued by a judicial court. Courts that issue judicial warrants include both state and federal courts, such as a “Superior Court of California” or a “U.S. District Court,” and a judicial warrant is signed by a judge or magistrate judge. Furthermore, judicial warrants must be complied with, and there are serious consequences for refusing to comply with a judicial warrant.
  • An administrative warrant is a formal written document authorizing a law enforcement officer from a designated federal agency, such as an ICE agent from DHS, to make an arrest or a seizure. An administrative warrant is issued by a federal agency such as DHS and can be signed by an “immigration judge” or an “immigration officer.”2 Unlike a judicial warrant, an administrative warrant does not authorize a search. Therefore, an ICE agent who has only an administrative warrant may not conduct a search based on the warrant, though, in certain circumstances, the administrative warrant would authorize the agent to make a seizure or arrest. Immigration warrants are administrative warrants issued by ICE, CBP, and USCIS.
  • An immigration officer from ICE or CBP may not enter any nonpublic areas — or areas that are not freely accessible to the public and hence carry a higher expectation of privacy — without a valid judicial warrant or consent to enter. An immigration warrant is not the same as a judicial warrant; an immigration warrant does not authorize a search of nonpublic areas. If an ICE or any other immigration agency officer comes to your address demanding entry to search your premises or seeking to obtain evidence and the officer has only an immigration warrant, you may refuse the officer entry and refuse to comply with the warrant because it does not grant the officer authority to enter or conduct a search. Thus, if immigration authorities or other law enforcement agents present you with a warrant, it is crucial to check for the following:
This table summarizes the differences between the two types of warrants above

Appendix: “Know Your Rights” Card

Print out a paper copy of the card and carry it with you in your wallet.

“Know Your Rights” Card

Footnotes

  1. Katz v. United States, 389 U.S. 347 (1967) ↩︎
  2. “Immigration officer” is a term that designates employees and agents of U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and U.S. Customs and Border Protection (CBP). See INA § 101(a)(18). ↩︎

References

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