Jul 13, 2019
by Christopher Kerosky, Kerosky, Purves & Bogue, LLP, Sonoma County Human Rights Commissioner
Once again, Donald Trump has declared his intention to start raids against our immigrant communities. (“ICE”) has formulated a plan to find and deport thousands of immigrants, and announced that it will be implemented starting this weekend.
I’ve written the detailed description below as a Guide for Immigrantsas to their legal rights and remedies when confronted by ICE - Immigration and Customs Enforcement.
Para leer en espaňol: https://kpbinmigracion.blogspot.com/2019/07/conozca-sus-derechos-ante-el-servicio.html
Part 1 covers what to do if ICE comes to your home.
Part 2 of this article covers what to do if ICE comes to your workplace or approaches you on the street.
Part 3 discusses what steps to take if ICE takes you into custody.
ICE can enter your home in three situations: (1) if they have a warrant; or (2) if you give them permission; or (3) they think there is presently a crime being committed in your home. If ICE comes to your house and knocks on your door, you do not have to open the door or let them in. Typically, to legally enter your home, ICE must have a search warrant or arrest warrant with your name and address on it. A warrant is an order signed by a judge to search a place and/or arrest a person.
If ICE comes to your home, you should ask to see a warrant. ICE must show you the warrant. If the officials do not have a warrant, you do not have to let them in or speak to them at all. However, if you give them permission to come in, then they can legally enter your home and search it.
Whether ICE comes to your house and knocks on your door, enters your workplace, or even questions you in jail, you have the right to remain silent. In other words, you do not have to provide your citizenship information to Immigration Service officials. You can just indicate that you do not want to speak to them.
An immigration official may not request evidence of your immigration status in your home or another private place without a warrant. Even if they have a warrant, you must only provide proof of your immigration status if you are in legal status. After showing evidence of your status, you still have the right to remain silent.
Once you have shown evidence of your legal status, if you have it, you do not have to talk to officers further – it is up to you. In most cases, you may be better off remaining silent and talking to a lawyer first, depending on your situation. This is your right under the law. If the Immigration Service asks anything about your political and religious beliefs, groups you belong to or contribute to, things you have said, where you have traveled or other questions that do not seem right, you do not have to answer them.
If an ICE official begins to ask you questions while you are walking down the street or in another public place such as a park, you can continue walking. ICE must allow you to pass by if they do not have a “good reason” to keep asking you questions. An example of a “good reason” is if you are leaving a place where they have previously found many undocumented workers. They cannot stop you just because you are dark-skinned or because you have a foreign accent. Remember that you have the right to remain silent.
However, it is very important not to run. If you run away from them, you are giving them a good reason to arrest you.
ICE can legally go into areas open to the public at workplaces, such as the reception area of a business. However, to enter places that are not open to the public, they must have a warrant or permission from the boss or owner. If ICE enters your workplace with or without a warrant, you always have the right to remain silent. They should only ask you questions if they have a good reason to believe that you are not a U.S. citizen.
ICE needs a good reason to stop you and search your car. If ICE has a good reason for stopping you (for example, they see drugs in your car), they can search your car without a search warrant from a judge.
If the police stop you, you must only show them your driver’s license and car registration. The police should not ask you any questions about your legal status in the U.S. because they enforce local law and immigration law is federal law, not local law. However, the police in many areas are cooperating more and more with ICE and being more aggressive. Police may require proof of your legal status, but remember anything you say can be used against you. So it is really important to only say your name and address to the police. You can remain silent and request an attorney before you answer any other questions from the police.
Your rights at the border are different than your rights in the rest of the U.S. The “border’ includes not only the line between the U.S. and Mexico or Canada, but also airports and areas close to the border, for example, the border checkpoint near San Clemente, California. In these border places, you must be able prove that you have legal permission to be in the U.S. or ICE can detain you to ask more questions. They can also search you or your bags without a search warrant. As always, you always have the right to remain silent.
If you are arrested, you do not have to answer any questions. This includes information about where you were born, when and how you came to the U.S., or even what your immigration status is. This is different than if ICE asks you about your status in public without an arrest. When they ask you in public, you are required by law to have proof of your legal status. If you do not, ICE can charge you with a crime. In the case of an arrest by ICE, you have the right not to say anything about your status, whether you have a legal status or not. If you tell them that you are not in the U.S. legally, ICE can use that information to deport you.
If you are arrested, tell ICE that you want an attorney. If you do now have one, ICE must give you a list of free or low-cost lawyers. Do not answer any questions or sign any papers until you speak to an attorney. This is especially important because ICE will sometimes try to make you sign an “Order of Voluntary Departure” saying that you agree to leave the U.S. or an admission that you used false documents. This is usually a mistake. In most cases agreeing to voluntary departure means that you will not be able to come back to the United States legally for at least 10 years, and if you try to come back illegally, you will be subject to a long prison sentence and a permanent bar from the U.S.
Most people that are arrested inside the U.S. by ICE have the right to ask for a hearing before an Immigration Judge. In most cases, ICE cannot deport someone without giving them the opportunity to go before an Immigration Judge. A hearing is very important for any person who may have the possibility of staying in the U.S. through other means, such as asylum, cancellation of removal or sponsorship through a family member.
It is almost never advisable to accept voluntary departure in front of a judge. It typically results in you being banned from the country for 10 years and prohibited from being reunited with your family for that time.
In many cases, ICE will set a bond so that a person can go free while they wait for their hearing with a judge. If you think that your bond is too high or if ICE denies you a bond, you can ask for a hearing with a judge to lower or eliminate the bond. You almost always have the right to ask a judge to set a bond for you. If you pay the bond set by the judge, you are usually released within 24 hours.
CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has been recognized as one of the top immigration lawyers in Northern California for 10 years by “Super Lawyers”. He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.
WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.
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