Two weeks ago, the Portland Mercury reported that immigration enforcement officers in that state were allegedly texting undocumented immigrants in order to entrap them into disclosing their immigration status and other crucial information. The article can be found here. If true, this practice is perhaps the latest tactic that ICE is employing to carry out President Trump’s enforcement mandate. It also underscores to what lengths the government is willing to go to apprehend people suspected of being in the country illegally. Not only do these latest methods come across highly invasive, there is something fundamentally unconscionable about it that violates any sense of fair play. One shudders to predict what is next. Will ICE agents resort to impersonating others and reaching out to people through fictitious Facebook, Instagram, and Twitter accounts? Given the direction that things appear to be going, this is certainly possible. As mentioned earlier in a previous post, the government quietly passed a new rule that allows the Department of Homeland Security to monitor immigrants’ social media and internet searches. Notwithstanding that, both legal and illegal residents are reminded that individuals have the right not to speak (or communicate) with government enforcement agents. An ICE agent reaching out to someone by text or telephone is no different than a street encounter. The officer is free to talk and ask questions of the subject; however, if the subject is not under arrest, he/she is equally free not to answer questions and just walk away. Similarly, one is not legally required to answer a text message nor provide information that may incriminate oneself. If the recipient does not recognize the texter or does not feel comfortable communicating, he/she is free to terminate the interaction. The right to remain silent and not incriminate oneself is enshrined in the Fifth Amendment of the Constitution and covers not only oral communication but presumably any words or actions testimonial in nature. (This could include emails and texts.) The issue is whether the answers were compelled or voluntarily given. If an individual freely provides information pertaining to his/her immigration status and country of origin, such information may be used during immigration court proceedings to satisfy the government’s burden of proof.
Equally important, those with questionable immigration status may want to be more mindful what they are posting or putting up on social media. As alluded to earlier, the government has begun tracking internet activity and may quickly expand into the electronic frontier (if it hasn’t already) to detect, engage, and ultimately apprehend those segments of the population that it would not otherwise be able to reach as easily. Just as undercover agents have conceived elaborate ruses and stratagems to ensnare fugitives, it is foreseeable that ICE may begin developing schemes utilizing the latest forms of technology to lure unsuspecting victims.
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.