Last updated on May 2nd, 2019
Andrew: All right, it is Wednesday. It is 11:00, it’s time for Law Talk. I’m here with Jennifer and today we’re going to be talking about ICE raid procedures, which should be pretty fun. It’s been in the news a lot recently. We’re like ICE raids are increasing, so having knowledge about how they work for businesses and homes seems like a good interesting thing.
Jennifer: Definitely, yes definitely.
Andrew: Do you want to start us off by talking generally speaking what an ICE raid generally entails? Why they do them sort of stuff like that just a brief overview so we have a background to go into.
Jennifer: Sure, so an ICE raid is a raid. You don’t get any notice whether it’s the place of employment or at your home. Essentially ICE just shows up and they want to arrest or search the place. They are increasing because that’s a method of increasing how expeditious a procedure is of deporting people, and if you can do it in groups unfortunately it’s easier.
Andrew: I know I read somewhere recently where one of the primary reasons for ICE raids is people reporting. For example, reporting a business that’s like, “Hey, they’re hiring illegal immigrants, go check them out,” and stuff like that.
Jennifer: Yes, and I mean what the formal purpose for these raids are to make sure that employers are following proper procedures or that perhaps there has been a report that the employer is either hiring undocumented immigrants or that they are abusing their employees and the working environment is just not good. Whether that’s true or not, that’s questionable but still that is the purpose.
Andrew: That’s the official stance.
Jennifer: Exactly yes.
Andrew: Okay, so the main purpose I think for today is giving some practical tips for what to do if ICE raids your home or business. Can they raid other places? I’ve heard stories about them showing up at Starbucks and stuff where people popularly go, but it seems like the most common is business and home.
Jennifer: Right, and I mean if they do an establishment, a public establishment that it’s not the place where you work and it’s not your home then it would be an encounter, a street encounter and you would go about those just like you would with the officers, with a police officer.
Andrew: Because it’s not like they can get a warrant to stalk you at your coffee shop or something.
Jennifer: Right, right, yes no that’s not a thing.
Andrew: I was just curious about that because it seems there’s so much fearful language surrounding ICE raids that making sure you have … This is the extent of their powers is a good sort of framework to work in for this.
Jennifer: No definitely, and everyone should know their rights, whether it’s employers or employees is very important that you know what you can and cannot do and what the agents can and cannot do.
Andrew: Yes, and that seems like a good transition actually into what are your rights during an ICE raid? I guess the first one and probably the most important one, in my mind, is warrants. Can you speak to why … Because a judge would issue an immigration warrant, right?
Jennifer: They would issue a search warrant.
Andrew: Yes, a search warrant.
Jennifer: Yes, so essentially for ICE to be able … First of all ICE, if they’re going into a business ICE can be in the public areas, they don’t need any sort of special document that allows them to be there. If I’m allowed to be in the public area than so will ICE.
Andrew: They can walk up to the counter, walk up to the register, that kind of stuff.
Jennifer: Right, they can be in the sitting area and the such. Now if they want to go into private areas, so if it’s an office or-
Andrew: Store rooms.
Andrew: Anywhere a customer can’t go.
Jennifer: Exactly, then they would need a search warrant. It’s very important that the employer knows what one looks like. Sometimes ICE agents might try to present an administrative warrant and the heading has DHS or Department of Homeland Security and that is not a search warrant.
Andrew: What are administrative warrants used for then?
Jennifer: They are usually used for purposes of deportation, so that wouldn’t allow the ICE agent to go into the private areas of your business and just search or arrest someone.
Andrew: All right, so can you talk a little bit to what justifications should ICE have to get a warrant? For example, we mentioned earlier if your neighbor reports you for being illegal immigrant or something. Is that enough proof to get a search warrant for your home or business, or is there an extra layer of evidence that they need? Speak to that a little bit.
Jennifer: Right, so in order to get a search warrant they would need probably cause. They would need to have sufficient legitimate evidence to present to the judge who will be issuing the order. That some sort of criminal activity is taking place. If it’s a business then probably the fact that they’re hiring undocumented immigrants and they’re violating the law for that reason, then that might be sufficient. They might need to corroborate that tip if it’s an anonymous tip, but they would just need sufficient evidence that would amount to probably cause. Now if it’s to a home then they need again probably cause to believe that there’s criminal activity in the home. If it’s for an arrests then the same thing, they need probably cause saying why they have to arrest this person.
Andrew: Yes, because that’s essentially what a warrant is, right?
Andrew: You’re justifying why do I need to go into this private space to do my job.
Jennifer: Exactly, exactly.
Andrew: Okay, that makes sense. As we mentioned, you need a warrant to go into these private spaces, but once ICE agents have actually raided into these spaces what rights do immigrants or anyone else in these areas have? The most obvious one is obviously the right to remain silent, also that kind of stuff.
Andrew: Can you speak to what specific rights people should both know about and make sure they actually use during these ICE raids?
Jennifer: Right, so if it’s the place of employment then … Well this goes across the board. You always have the right to remain silent. You have the right to ask for an attorney if you’re being arrested. If you just don’t want to make any comments just say, “I want an attorney.” ICE agents are not instructed, they’re not required to tell you that you have the right to remain silent, so it’s very important that you know you do have that right and you should exercise it. Some people think that if I say the right thing they’ll let me go or it’ll make things better but that’s usually not the-
Andrew: It usually just makes things worse.
Jennifer: Exactly, that’s usually not the case. The right to remain silent is probably one of the most important things. You also have the right to-
Andrew: Oh [inaudible 00:07:35]. Keep going.
Jennifer: You also have the right to not sign any documents, especially if they’re not in your native language. Sometimes ICE agents might require the person to sign a document and if that’s the case don’t do it, especially if you don’t understand it. If you do decide to sign a document ensure that you understand fully and you understand why you’re signing it and what it is that you’re signing.
Andrew: Yes, that makes sense. My camera apparently just has zero battery for some reason, so we can just ignore that for the moment. You’ll be full screen, it’ll be great.
Jennifer: Okay awesome.
Andrew: Yes, so another thing related to this is more practical rights. For example, the right to record officers in public is another important one, especially recently with all these cases of people losing body cam tapes and also that kind of stuff.
Jennifer: Yes and it’s important that you mention that. It’s important to remember that just because you’re recording the officer because you believe they’re doing something wrong, that doesn’t give you the right to be disrespectful towards the officers. Yes you can record and you probably should just because video images probably the best to show what actually happened, but always remember that you shouldn’t be disrespectful towards the officer. You shouldn’t be yelling at them or obstructing their path. Let them do what they’re doing and then the time to fight it will be after they leave and once you get an attorney. The reason why I mention that is because you could get an obstruction of justice charge, so if you can avoid that do that, but you definitely have the right to record an officer and probably should.
Andrew: Yes, I mean this is something we’ve talked about before on the show is do what the officer says, argue about it later.
Andrew: The more proof you have to back up that argument of hey, this was not cool, the better. Don’t lie to the officer. Record the officer if at all able. Don’t run away.
Jennifer: No, not at all.
Andrew: I know that’s a huge problem actually recently is people are trying to run from ICE officers and get in traffic accidents and all this other kind of stuff.
Jennifer: I mean I understand that that’s an ICE raid or any other encounter with any kind of officer can be really scary and nerve wracking, but fleeing will not make things better at all.
Andrew: No, it always makes things worse.
Jennifer: Exactly, and the way that you deal with that is that you remain calm and just don’t say anything. If they ask you question just say, “I wish to remain silent.” Sometimes what ICE has done is that they separate people into groups and they say, “Whoever is undocumented go into this group, and whoever is not undocumented go into this other group.” Don’t move, and this is something that employers should instruct their employees to know about. If you move to one group of another that would be essentially the equivalent of speaking.
Andrew: A confession, yes.
Jennifer: Just remain silent, don’t move, stay calm, and sometimes ICE agents will also ask you about your legal status or where you’re from. You don’t have to answer those questions either.
Andrew: This isn’t just for illegal immigrants either.
Andrew: This is for anyone.
Jennifer: For anyone, exactly. I mean you could be like myself, I am from Dominican Republic and someone could ask me where am I from just by my looks or maybe my accent. It really doesn’t matter why they’re asking it, you don’t have to answer that question.
Andrew: I know another thing that comes up a lot with these ICE raids is searches and that kind of stuff. For example, showing them immigration documents and Visa documents. Showing them anything or having them search you is another big problem because people have rights.
Andrew: Officers can’t just randomly search you with no just cause.
Jennifer: Right, exactly.
Andrew: Do you want to speak to that and what constitutes a legal search, what they have to do, what the procedures are?
Jennifer: Yes, so again they need probably cause or legitimate, something that will allow them to actually search you. They need probably cause to be able to search you, so if they don’t have that then that would be an illegal search. The Constitution protects you against that. Again that would be a fight that would take place after, but if they ask you for immigration papers that’s something that you don’t need to provide, especially if you’re at your place of work. That’s something you don’t have to do, you don’t have to give them. If it’s at the home they would need a search warrant again. That also goes for the business if they want to look through drawers or closets, they would need a warrant signed by a judge-
Andrew: That specifically states what they can-
Jennifer: That specifically says where they’re going to be searching and what they’re searching and why they’re searching it. Your best bet is to always ask, “Do you have a search warrant?” Then you can read it. If you have the chance make a copy of it for your own records.
Andrew: Even just taking a picture of it on your phone.
Andrew: Because that’s something that people don’t seem to realize is search warrants are for very, very specific things because it goes back to that probably cause thing we were talking about earlier. Where if they believe you have an illegal immigrant family living in your basement, then the search warrant would be like hey go check out the basement for an illegal family. It’s not going to let them go search through your drawers in the upstairs bedroom.
Jennifer: Right, and for the example that you gave as far as an undocumented person living in someone else’s house, what they would need would be an arrest warrant for the specific person that they’re looking for and the arrest warrant would have to state why they’re looking for that person. Those things generally come about from criminal charges or outstanding unpaid court fines. In that aspect, in terms of entering someone’s home, they would probably need a search warrant and an arrest warrant if the home doesn’t belong to the person that they’re going to arrest.
Andrew: Yes, and I think this is actually a pretty good transition to something else we were thinking about talking about, which was what to do if you are on site during one of these raids but not specifically the target of the raid. You mentioned earlier everyone who’s an illegal go on this side and everyone who’s not go on this side. Which kind of talks to this, but what should you do if using the example we were just talking about, a neighbor or someone living with you is being raided or being arrested as an undocumented immigrant. What are your rights as someone who’s not specifically targeted by a search warrant, an arrest warrant, etc., etc.?
Jennifer: I mean if you’re in the area and you’re presumably where the officers are then you have the same rights. If you’re part of this commotion and the officers could exercise some force or authority against you then you have the same rights. You should probably record the interaction just to help out your neighbor or your employee or your friend, whoever it might be. You can record the interaction, be respectful again. You probably shouldn’t try to interfere with anything, just stay in the background. If the officers, for some reason, ask you questions then you don’t have to respond. Again, any interaction with the police officer whether it’s outside at a Starbucks or at the place of employment, even if you’re not the target of that interaction, you can always just decline respectfully to continue with that encounter. If they get your consent then they can ask you things and if you answer that’s you consenting to that interaction.
Andrew: It’s just a rabbit hole you do not want to go down.
Jennifer: Right, absolutely not.
Andrew: When you have absolutely no reason to.
Jennifer: No reason, right.
Andrew: Just stand to the side, record if you want to, just don’t get involved.
Jennifer: Exactly, and you can always ask, “Am I free to go?” If they say, “No,” then probably it’s going towards detention or possibly will end up in an arrest. You just remain silent and exercise your right.
Andrew: I think that’s an interesting thing to chat about is the difference in the being held by police procedures. Because there’s a distinction between being questioned, being detained, and actually being arrested that a lot of people, again, don’t seem to really know the boundaries of.
Andrew: For example, as we were just talking about, if you’re being questioned by police you can leave whenever you want. That’s where the can I leave question comes up.
Jennifer: Right, and that’s generally what officers call citizen encounters where they just randomly stop you in the street and they are like, “Hey, do you want to chat?” You can say, “Hey no, thank you.” Then there’s the detention and that’s usually the officer might have a reasonable belief that there’s some criminal activity going on. If that’s the case they can detain you and that means that you can’t leave until they are able to either get more evidence that there has been criminal activity, or that they will be criminal activity, or that there is criminal activity, or they figure out that there’s nothing going on and they were wrong. It would have to be a brief stop.
Andrew: Being detained they need a certain amount of reasonable suspicion that something wrong is happening.
Andrew: For example, I always use the traffic stop example where if they pull you over for not having a taillight on or something and then they smell alcohol or marijuana smell in a car or something they’re like hey, there’s probably something going on. They’re not going to let the person drive away.
Jennifer: Absolutely not, no. At that point they probably have sufficient evidence to continue investigating what is really going on and then from there they’ll follow whatever steps are appropriate in that circumstance.
Andrew: To bring it back to the immigration ICE raid example we’ve been talking about, what would be examples of evidence they could use for detaining someone or even arresting someone who’s not the target of the search warrant? We’ve mentioned before, again the example of hey people who are undocumented go in this pile. That would be a reason either detain you or arrest you because you’re essentially saying hey-
Jennifer: Right, I’m undocumented in this country and maybe I have an outstanding deportation order against me. ICE would obviously look further into that, or they might take you to another location in order to investigate.
Jennifer: Again, if you don’t speak then they’re not going to have any evidence of anything and that’s probably the best advice just don’t speak.
Andrew: Yes, and that’s the important thing. If they don’t have evidence then they can’t do anything with you. They hopefully can’t just randomly pick people up off the street.
Jennifer: Right, right.
Andrew: All right, and I think the last thing we should really go into today just because my camera is still being dumb, is sort of what to do with an attorney. This is always the last thing people mention in these videos, articles about this, is how immigration procedures relate to getting an attorney. One of the more interesting things I’ve heard is as compared to actually criminal proceedings, you don’t have the right to a court appointed attorney, which is a big deal.
Jennifer: That’s right.
Andrew: For example, you need to call your personal attorney, have a friend hire an attorney for you.
Andrew: Getting in touch with an immigration attorney as soon as possible can make these situations so much easier.
Jennifer: Absolutely, and there are organizations that have know your rights cards that have it in different languages and it actually says I wish to remain silent, I want an attorney. Your request for an attorney in that situation is probably because of the arrest. If an arrest takes place then that is probably why you want an attorney, and they have to let you get in touch with an attorney. They don’t have to provide you with one if it’s an ICE agent but they should allow you to get in touch with your immigration attorney. That’s why it’s so important to have that information on hand at all times.
Andrew: Yes, definitely. All right, so just to start wrapping this up, is there any final tips you would give to someone who’s been involved or thinks they might be involved in an ICE raid just as general practical advice? I’m fishing for things right here.
Jennifer: Sure, again if they ask you to move from one place to another just don’t do it, that’s probably them trying to figure out who’s documented or undocumented. If they ask you if they can come in into a private area say, “No.” If you say, “Yes,” or open the door and let them go in that would be consent and you don’t want to give them consent to do that.
Andrew: Okay, I mean that’s pretty good advice I think is just this, I hate to say peaceful resistance, just say no to everything, don’t let them go where they want to go.
Jennifer: Pretty much, yes.
Andrew: Again record everything because if they do go against your wishes or ignore one of your rights that can help your immigration case down the line.
Andrew: Which is a huge deal, especially if you get an attorney fast enough.
Jennifer: Most definitely yes.
Andrew: Yes, I think that’s about it for today unless you have any super final thoughts.
Jennifer: No, I think that’s good.
Andrew: That’ll be it. We’ll see everybody next Wednesday, same time, same place. I hope everyone learned a lot about ICE raid procedures today. I know I personally did. I just find this fascinating. All right, thanks everyone and we’ll see you next week.