Can ICE Detain U.S. Citizens?

Generally speaking, ICE cannot legally detain U.S. citizens, as they only have authority to arrest individuals who entered the country illegally. However, this is not always the case.
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by | Last updated Apr 2, 2020 | Published on Apr 2, 2020 | Immigration

Generally speaking, no. ICE cannot detain or otherwise arrest U.S. citizens.

However, ICE does has the power to detain people in cases where the agent has a reasonable suspicion that the suspect (1) does not have lawful presence in the U.S., and (2) originally entered the country in an illegal fashion.

Using this justification, ICE agents will sometimes detain U.S. citizens while claiming that they had a reasonable suspicion that the citizen was, in fact, an illegal alien.

In this article, we’ll briefly outline a U.S. citizen’s rights in this situation.

However, keep in mind that being detained by ICE is a serious matter that you must speak about with an attorney.

The U.S. immigration system can be a terrifying place, even for U.S. citizens, so you’ll want to have an experienced attorney on your side who can fight for your rights.

This article simply covers a few basic tips for avoiding or dealing with an ICE arrest.

Know Your Rights: What to Do if ICE Detains, Questions, or Arrests a U.S. Citizen

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Everyone living in the United States, regardless of their immigration status, the language they speak, or the color of their skin, has certain rights under the U.S. Constitution.

While you may not think about these rights every day, they become incredibly important in cases where law enforcement tries to infringe upon them.

Specifically, if an ICE agent detains, questions, or arrests you based on your race or a similar factor, and you are a U.S. citizen, they are in violation of your 4th and 5th Amendment rights.

In such an event, there are several things you should do:

  • Immediately tell the ICE agents that you are a U.S. citizen and that ICE does not have the authority to detain, question, or arrest you.
  • Ask to speak with an attorney as soon as possible. Or, try to contact a family member who can find an attorney for you.
  • Ask the arresting agent for their name and badge number.
  • Collect any other information on the incident, and bring this information to your attorney. In some situations, you may be able to file for damages as a result of the unlawful arrest or detainment.

We’ll go into more detail on these topics below, but the important things to remember are that (1) you should know what your rights are, and (2) you should assert these rights in every interaction with law enforcement.

How to Protect Yourself from ICE Detention

It’s often a good idea to keep your citizenship information in a central and organized location.

For example, you could keep your passport or other similar documents in a safe in your house when you’re not actively using them.

Make sure that everyone in your family knows where these documents are so they can quickly gather them in the event of an emergency.

Similarly, it’s often wise to make a plan for what your loved ones should do in the event that you get picked up by ICE.

For example, children should memorize the phone numbers of family members, or you could keep the business cards of trusted attorneys in a central location in your house.

Finally, you should remember to exercise your rights in the moment.

For example, ICE agents generally cannot search (or even enter) a home without the owner’s permission or a warrant signed by a judge.

For this reason, you can often simply refuse to open the door and tell the agents to leave if they show up at your house.

The same general rights apply at work as well, though your employer can allow ICE agents to search the premises for anyone listed on the deportation warrant (Form I-205).

ICE Detainment FAQ

How often are U.S. citizens detained by ICE?

The only real answer to this question is “too often,” as most of the available reports are either outdated or incomplete.

As two sources of reliable data, ICE detained roughly 1,500 U.S. citizens in local jails or immigration detention centers between 2007 and 2015, while ICE released roughly 1,480 detained individuals between 2012 and 2018 after finding that these individuals were actually U.S. citizens.

As I noted in a recent episode of my immigration podcast, Nation of Immigrants, “even if it happens just once, it’s a big deal…if it happens to even just one U.S. citizen, or even if it’s just happening to immigrants and their rights are being violated, that’s bad for all of us.”

Detaining U.S. citizens on flimsy evidence simply because of the color of their skin or the language that they speak is a problem, regardless of whether it happens once or 1,500 times.

For this reason, and due to the stark lack of transparency in the process, “too often” is the only accurate answer to this question.

Why would ICE detain a U.S. citizen?

ICE agents will often use large databases of information to find targets for deportation.

However, these databases are only as good as the information included within them.

When the information given by an arrested or detained individual contradicts the information in the databases, or if the ICE officer otherwise doesn’t believe the individual’s story or the legality of their documents, ICE will often detain the individual while they investigate the issue.

The same is true in cases where the individual was picked up on a criminal charge (such as petty theft) and their case raised a flag on ICE’s radar.

Generally, this situation will lead to ICE agents asking the local jail to (unconstitutionally) hold on to the arrested individual until ICE agents can arrive to arrest them.

Ultimately, the ICE officer must only have a “reasonable suspicion” that (1) you are not a U.S. citizen, and (2) that you entered the country illegally in order to arrest or detain you.

The only answer to the question of “why would ICE detain a U.S. citizen,” then, is “because they believe they have probable cause to deport that individual.”

What that “probable cause” is based on is another question entirely.

How can I prove my U.S. citizenship after being detained by ICE?

While this may sound a bit pessimistic, the only way you can “prove” your citizenship after you’re already detained is by convincing ICE that they erred in detaining you.

Most often, this means hiring an attorney to fight on your behalf.

As ICE has stated in the past, it’s not the agency’s job to determine if you’re a citizen.

Instead, they lay this responsibility on you and the immigration judge in charge of your case (who you will often not see until weeks if not months after your arrest).

For this reason, ICE will often detain individuals who they suspect of being illegal aliens, and then leave the final decision in the case up to the judge.

Such an approach not only often ruins the lives of the accused, but also leads to situations where the accused must spend money on an attorney to make any significant progress in their case.

If you are detained by ICE despite being a U.S. citizen, it’s highly recommended that you speak with an experienced immigration attorney immediately.

Sadly, immigration law is complex and nuanced at the best of times and contradictory at the worst of times, so an attorney is often necessary for protecting your interests and proving your citizenship status to ICE.

Conclusion

Young asian businesswoman beautiful charming smiling and talking on the mobile phone in the office.

Generally speaking, ICE agents cannot detain or arrest U.S. citizens.

However, these agents do have the authority to detain individuals when they have a reasonable suspicion that those individuals are aliens who entered the country illegally.

Sometimes, whether due to bad data or because of the circumstances of the case, an ICE agent will detain a U.S. citizen pending an investigation into their legal status.

In such a situation, you must hire an attorney to protect your interests.

ICE is notoriously slow in dealing with such claims, to the point where some U.S. citizens have been detained for some time.

To avoid a worst-case scenario, you must hire an attorney if you are detained by ICE, regardless of whether you are a full U.S. citizen or not.

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Jacob Tingen

Jacob graduated from the University of Richmond School of Law and was accepted to the Virginia Bar in 2012. Less than 30 days after being admitted to the bar, Jacob launched his own legal practice. Read More.

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