Interactions with ICE, regardless of your legal status, can be terrifying events.
Over the past several years there have been numerous stories of ICE agents detaining and questioning otherwise innocent individuals who simply didn’t understand their rights, or even what they were facing by speaking with these agents.
For this reason, it’s still very important for immigrants to understand their rights in the event that ICE does show up at their door.
In this article, we’ll quickly cover the three main rights that apply in this situation.
We’ll also provide eight detailed tips for protecting yourself should you find an ICE agent on the other side of your front door.
Your Rights at Home
As an individual who is living within the United States, you have certain rights under the U.S. Constitution.
This is true even if you are an undocumented alien.
Most relevant to this conversation are your 4th and 5th amendment rights, which relate to your ability to protect yourself from unlawful or unfair actions by law enforcement, as well as certain provisions in the Immigration and Nationality Act (INA).
4th Amendment Right Against Unlawful Search and Seizure
The 4th Amendment of the Constitution notes that:
“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 the persons or things to be seized.”
4th Amendment – U.S. Constitution
Note, however, that there are two different types of warrants when it comes to immigration law.
First is the “judicial” warrant you’re probably familiar with from television or your general knowledge of the U.S. justice system.
This is the warrant that is outlined in the 4th Amendment, which allows law enforcement to search your home, vehicle, person, or other property, provided a judge signs off on the document.
On the other hand, ICE has the ability to issue an arrest warrant (specifically, “Form I-205, Warrant of Removal/Deportation”) that targets a specific individual.
This warrant does not give the ICE agent permission to search, or even enter, your home.
For this reason, if an ICE agent shows up at your door with only Form I-205, and not a judicially signed warrant, you can usually just tell them to leave.
5th Amendment Right to Remain Silent
The 5th Amendment of the Constitution enshrines several rights that are relevant to criminal and civil proceedings.
Most relevant here is your right against self-incrimination, or, as noted in the Amendment:
“No person shall be held to answer for a…crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”
5th Amendment – U.S. Constitution
Basically, this amendment gives you the right to refuse questioning when that questioning would force you to incriminate yourself.
Put more simply, if an ICE agent directly asks if you are an illegal alien, or any other question for that matter, you can simply refuse to answer.
While it’s good to cooperate politely and give your name, you never have to (and should not) tell the officer anything about your immigration status, your country of origin, or anything else that might be relevant to your case.
Doing so will only harm your defense.
Similarly, you should never lie to the agent or attempt to mislead them, as this will only come back to bite you in the future.
At most, you should repeat statements that can help you exercise your rights, such as:
- I do not give you permission to enter my home.
- I do not consent to a search of my home.
- I do not consent to a search of my person.
- I want to exercise my right to remain silent.
- I want to speak to my lawyer.
Basically, you should assert your rights and then do your best to disengage yourself from the situation as soon as possible.
Access to Counsel (Your “Right to an Attorney”)
Your right to an attorney is not guaranteed by a constitutional amendment, unlike the other rights noted above.
Instead, this right is outlined in the Immigration and Nationality Act (INA):
“In any removal proceedings before an immigration judge, and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.”
8 U.S.C. § 1362: Right to Counsel
To simplify this law a tad, you have the right to hire an immigration attorney to represent you in any removal proceeding before an immigration judge.
Note, however, that this attorney must be “at no expense to the government,” and that this right is specifically not covered by the 6th Amendment.
This means that you must hire your own attorney, or risk having no representation at all.
This is actually an ongoing problem in immigration courts, as individuals with little to no legal knowledge are forced to defend themselves against government attorneys.
While this systematic problem warrants a discussion on its own, the “point” you need to remember is that you can (and should) hire an attorney to represent you in immigration court.
Quick Guide: What to Do in the Moment
Talking about constitutional rights is one thing, but actually exercising these rights in the moment is a different matter entirely.
For this reason, it’s often wise to have a plan for what you and your family should do if ICE comes knocking at your door.
For example, your children should memorize the phone numbers of your trusted friends or loved ones.
Similarly, you should take care to make copies of any important documents that could help you prove your citizenship, such as birth certificates.
Having a plan in place in case of an unexpected arrest is easy, and can provide some much-needed peace-of-mind should such an event occur.
Additionally, there are several other tips you can follow to minimize your risk of arrest (or mitigate an arrest’s effects on your life).
Tip 1: Remain Calm
Just like with all interactions with law enforcement, the first and most important step is for you to stay calm.
By keeping a cool head, you can think through the situation and protect yourself from self-incrimination and other undesirable circumstances.
As an aside, this is why it’s so important to have a plan for what you’ll do should ICE arrive at your door.
By having a plan and remaining calm, you can significantly lower your chance of being arrested or, at the very least, you can avoid accidentally making the situation worse by misspeaking.
Tip 2: Don’t Open Your Door
In addition to staying calm, it’s also a good idea to keep the door closed while you speak with the officers.
While simply opening the door doesn’t necessarily mean that you’ve given the officers permission to enter, it can still complicate your case should something unexpected occur.
For example, if an officer says “I believed that I had permission to enter because they opened the door,” you may have a hard time fighting that claim (and, as a result, arguing that an arrest under these circumstances was unjust).
Typically, it’s a good idea to have any conversations through the door.
If the ICE agent says they have a warrant, you can inspect it by asking them to slide it under the door.
If you feel that you have to open the door, it’s wise to explicitly state “I’m going to open the door just so I can look at the warrant, I do not consent to you entering my home,” or something to that effect.
Tip 3: Exercise Your Right to Remain Silent
As we noted above, everyone in the United States (even undocumented immigrants) has the right against self-incrimination.
Put another way, you don’t have to (and should not) speak with any law enforcement officer, especially if they’re from ICE.
Generally speaking, you should provide your name and ask for the officer’s information, and then remain silent for the rest of the interaction.
If they arrest or detain you, you should immediately ask to speak to an attorney.
Nothing you say at this point will help your case or convince the agents to release you, so it’s always in your best interests to remain silent.
Tip 4: Collect Information & Check Their Paperwork
Generally speaking, it’s a good idea to ask ICE agents for their names and badge numbers at some point during the interaction.
Additionally, you could ask the officers what they’re doing at your home and why they’re knocking on your door.
Finally, make sure to look over any documents that they claim give them the right to arrest or detain you.
As noted above, when ICE says they have a “warrant” for your arrest, they are usually not referring to a normal judicial warrant.
Instead, they are referring to Form I-205, Warrant of Removal/Deportation.
Basically, this is just a slip of paper that gives ICE permission to detain the individual named on the paper.
It does not give ICE permission to enter your home, as it is not a legal, judicial warrant.
For this reason, you can (usually) refuse to open your door and ask them to leave.
Tip 5: Don’t Resist
If an ICE agent forces their way into your home, such as if you just opened the door to see the warrant and they walked inside, you should never resist.
Instead, take steps to document the interaction (such as recording them on your phone), and reassert your rights by stating:
- I do not give you permission to enter my home.
- I do not consent to a search of my home.
- I do not consent to a search of my person.
- I want to exercise my right to remain silent.
- I want to speak to my lawyer.
Remember, Form I-205 only allows the agent to arrest you. They cannot use it as a justification to enter your home or search your belongings.
Doing so is a violation of your rights, and most certainly something that you should bring up with your attorney as soon as possible.
Tip 6: Don’t Overshare
This may sound counterintuitive, but it’s highly recommended that you avoid talking about your nationality, country of origin, or legal status with any ICE agents.
State your name, ask for the officer’s information, and repeat the statements listed above.
By sharing additional information with the ICE agents, you are essentially giving them additional excuses to arrest you.
Remember, they came to your home because they claim to have a reasonable suspicion that you (or someone else living there) is an illegal alien.
Nothing you say or do at this point will convince them otherwise, so it’s wise to remain silent about your nationality or legal status.
Tip 7: Immediately Contact an Attorney if You’re Detained or Arrested
If you are detained or arrested by ICE, you should immediately contact an experienced immigration attorney about your case.
Remember, everyone in the United States, regardless of their nationality, legal status, or skin color, has the right to representation in legal matters.
Note, however, that this does not mean the government will provide an attorney for you.
Unlike in criminal courts, there are no court-appointed attorneys in immigration courts.
You must hire your own attorney.
Tip 8: Don’t Sign Anything
As one final tip, an ICE agent will sometimes ask you to sign a document pertaining to your immigration status or detainment.
Signing such a document is never in your best interests, and may lead to your deportation even if you are otherwise in the country legally.
Always speak with an attorney before you sign any documents.
Conclusion
As an individual living in the United States, you always have the right to remain silent, the right to an attorney, and protection against illegal search and seizure.
If ICE agents come to your home, do not open the door, give out any information besides your name, or sign any paperwork.
Additionally, remember that ICE agents rarely carry judicial warrants.
If the agents only have a Form I-205, you can simply keep your door closed and tell them to leave.
They may only search or enter your home if they have a warrant signed by a judge.
If you must open your door, be sure to state that you do not allow the officers entry, but are only trying to read their warrants or other paperwork.
If the officers do enter your home, do not resist, and express your right to remain silent.
Remember to always have a plan in case if ICE were to show up unexpectedly.
Further, everyone in your home should know about this plan, including any children who are living with you.
Finally, remember to contact an attorney immediately if you are detained by ICE.
Sadly, immigration law is both complex and often unfair, and only an attorney can sufficiently help you fight the charges against you.
Further Reading:
- Can ICE Detain U.S. Citizens?
- Stopped by ICE in Public: A Quick Guide for Immigrants
- What to Do After an ICE Arrest: A Quick Guide for Immigrants
- What to Do if ICE Comes to Your Workplace: A Quick Guide for Immigrants
Other Resources:
- What Immigration Can and Cannot Do [PDF] – A document prepared by Community and Regional Development Institute of Cornell University. It provides a succinct overview of exactly what it says in the title.
- Know Your Rights: Stopped By Police – This is the ACLU page that explains your rights when stopped by police.
- Know Your Rights: Immigrant Rights – This is the ACLU page that explains the rights held by immigrants (even undocumented ones).
- Know Your Rights – A general directory page, prepared by the National Immigration Law Center, that links to several high-quality overviews of your rights as an immigrant.
- Know Your Rights at Home and Work – A page prepared by the National Immigration Law Center that provides a broad overview of your rights as an immigrant.
