One of the most common concerns that undocumented and “illegal” people have is what are their rights when being questioned or stopped by immigration agents from the Immigration and Customs Enforcement (“ICE”). For purposes of this article, we are confining our discussion to encounters within the interior of the United States. If a person is apprehended/questioned by the Department of Homeland Security at the border, he/she will ordinarily be dealing with someone from Customs and Border Protection (or “CBP”).
Can An ICE Officer Just Arrest Somebody Because They Look “Illegal?”
Legally speaking, an immigration agent cannot just stop and arrest an individual arbitrarily because of the person’s ethnicity or appearance. While agents are authorized to interrogate any person believed to be an alien as to his right to be or remain in the United States, the authority to arrest without a warrant is limited. Warrants shall normally be obtained unless the officer believes that the person is likely to escape before one can be obtained. In any case, under 8 CFR 287.8(c)(2), “an arrest shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States.”
Right To Remain Silent
In many ways, an immigration officer’s authority to stop and question a person is similar to a local police officer’s authority to stop and question an individual. However, in both cases, an individual-regardless of legal status-has certain constitutional rights. One of the most important and sacrosanct is a person’s right to remain silent. Even if an officer has reasonable cause to detain an individual so that he/she is not free to walk away, the individual is not legally required to speak or answer any questions. If the person is not free to walk away or his/her liberty is restrained, then he/she can assert this right by simply (but politely) advising the officer that he/she wishes to remain silent. Even if an individual is illegally in the United States, he/she is entitled to due process of the law and in most cases, must be placed into removal proceedings where the government has the burden to show the person’s alienage by clear, convincing and unequivocal evidence. A person’s statements and admissions can be used against him/her to satisfy this. Concomitant with this right to remain silent is the right not to sign any documents without speaking to an attorney first, which is always a good idea. There are many people who have unwittingly waived their rights to a hearing by signing documents that they did not understand.
Right To An Attorney
An individual does have a right to consult with an attorney before being questioned or asked to sign any paperwork. Moreover, an individual placed into removal proceedings has a right to be represented by counsel at one’s own expense. See INA 240(b)(4)(A). There is a concerted effort by anti-immigration parties to erode this protection on the premise that removal proceedings are administrative, civil hearings. At the same time, though, it appears that the government is moving towards trying to criminalize immigration violations. Criminalizing illegal immigration would convert removal hearings into essentially criminal proceedings in which the constitutional Fifth Amendment right to counsel is firmly ensconced.
Right Not To Open The Door
Lastly, it is important to understand that should ICE come to an individual’s home, he/she does not legally have to open the door unless the officer has a judicial warrant, signed by a federal judge. This is a critical distinction. An officer may inform and show the individual a warrant, but the warrant may be an ICE administrative deportation warrant, not an arrest or search warrant signed by a judge. Administrative warrants not signed by judges do not authorize a government official to enter a private home unless the individual were to willingly open the door and let the officer in. If an officer does have warrant, he/she can slide it under the door or show it through a window so that the occupant can examine it. If the warrant is not a valid warrant, the individual can assert his/her Fourth Amendment constitutional right not to open the door (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized.”)
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney