All people in the United States, regardless of their immigration status, are protected by the U.S. Constitution simply by living here. The most important constitutional rights to remember as immigrants are the 5th and 4th amendments, which are the right to remain silent and the right against unreasonable searches and seizures.
Just what does this mean if you are a non-documented immigrant and U.S. Immigration and Customs Enforcement (ICE) agents approach you?
When you’re in public:
If you are in public and are randomly stopped by an ICE agent, you have the right to remain silent. You can tell them directly that “I have the right to be silent.” This is your first line of defense.
ICE officers must have probable cause that a crime has been committed to arrest an individual. (Note that being present in the United States with an expired non-immigrant visa is not a crime; it is a civil violation. Entering the United States without proper documents is a misdemeanor.)
Being a person of color, having an accent, or looking foreign are not sufficient causes for an officer to find reasonable suspicion to stop and interrogate an individual — and most definitely do not meet the standard for probable cause required to arrest an individual.
If a person is stopped, their best line of defense is to employ the right to remain silent. This will avoid inadvertently sharing information that might lead the officer to find probable cause for an arrest.
When you’re at home:
If you are at home and an ICE agent comes to your door, you have the right to see what type of warrant they brought with them before even opening your door. In fact, you should not open your door until you can verify they brought a judicial arrest warrant. Opening your door gives agents permission to enter.
Instead, ask the agent to slip the warrant under the door, or to show you the warrant through a window. If they obtained a judicial arrest warrant, that means they presented evidence to a judge and a judge issued the warrant. Such a warrant will have a seal that says “Washington Court” and will be signed by a judge. If the ICE agent presents a judicial warrant, then you should open the door, comply with the agent, and contact a lawyer. You still have the right to remain silent and to not sign any documents.
If the agent does not have a judicial arrest warrant, then you do not need to open the door. Agents may bring with them administrative warrants, which say “Department of Homeland Security” and will be signed by an agent. These ICE warrants are not valid for entering private homes. Your 4th amendment right against unreasonable searches means that only judicial warrants allow ICE agents into private homes.
If you’re an immigrant and a bystander to an ICE arrest:
If an ICE agent is arresting or questioning someone in front of you, you still have the right to remain silent. Remaining silent can reduce the risk of what is called a collateral arrest, in which an agent has a warrant for once person and then also arrests others around them after questioning them. For example, if an agent asks a bystander where they are from and the bystander responds “Mexico”, that response can give the agent reasonable suspicion to legally start interrogating that person.
Instead, you can exercise your right to remain silent. Simply don’t answer any questions, and state that you are exercising the right to remain silent. It is important to remember that just because you’re not answering any questions does not mean there is reasonable suspicion to question you.
The risk of collateral arrests is another reason to not open the door of your house to an ICE agent without seeing the warrant first. Sometimes agents have the wrong addresses or the wrong people listed on their warrants. Again, only open your door if the ICE agent has a judicial warrant with a “Washington Court” seal on it. If an agent has a valid judicial warrant for someone in your household, everyone still has the right to remain silent even with the agent inside the house.
If you do get arrested:
If you do get arrested, you still have the right to remain silent. If you do speak, do not lie; it can only hurt you in the future. You do not have to sign anything. You have the right to speak to an attorney as well.
You do not have to give agents your consular documents or passport unless they have a warrant from a judge. You also do not have to share any information about where you were born, what your immigration status is, or your criminal record. Ask to speak to an attorney instead of answering questions.
If you are a non-documented immigrant, however, you don’t get a public defender so you must find your own attorney. You or your family can hire an attorney of your choosing. You can also contact the Northwest Immigration Rights Project to see if they will take your case; they can offer free consultations. If they do take your case, they may charge according to income or choose to take a case for free. Any attorney will be able to visit you in the detention center, and they might be able to tell a judge if your rights were violated with the arrest.