What to do if ICE stops you: An attorney answers some questions
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With immigration enforcement activity increasing across Minnesota, many people are asking a simple but urgent question: What are my rights if ICE approaches me?
MPR News senior reporter Sarah Thamer spoke with Gloria Contreras Edin, an immigration attorney, about what to do if ICE or other federal agents stop you in your car, approach you on the street, or come to your home.
If ICE stops you while you’re driving, what should you do? Do you pull over or keep going?
Even though it’s a really scary thing and it’s nerve wracking to be stopped by ICE agents, my first suggestion is that you stay calm and you stop your car, and you don’t drive away or resist, and you follow the agent's orders.
If an ICE agent asks, ‘Are you a U.S. citizen?’ do you have to answer?
You don’t have to answer it unless you want to answer it. But once you’re stopped, you don’t have to answer any questions at all, especially [from] an ICE agent. Now, a [local] police officer, it’s different, but an ICE agent, you don't have to discuss with them your citizenship status. It's none of their business.
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If you want to remain silent, how should you respond? Should you say anything at all?
Well, it really depends on the individual and their willingness to engage with ICE. Clearly, U.S. citizens can state that they're U.S. citizens, if they want to, in addition to remaining cooperative and not resisting. The other important piece is keep in mind that ICE officers are just as scared, and so it's important to keep your hands visible and on the wheel. I think that I'm always telling folks to do that simply because there's such a high risk of a rapid movement being perceived as pulling for a gun.
You can either choose to tell them that you're a U.S. citizen and to tell them who you are, or you can ask them if this is an arrest, and if they say, no, you're not arrested, then you can say, am I free to leave? If the officer says yes, you're free to leave, you can just calmly drive away, assume that the officers are at a safe space away.
You can also just remain silent. You can say, I'm exercising my right to remain silent and I want to speak with an attorney. So an individual can remain silent. The most important piece is, if you choose to remain silent, then remain silent. It's your constitutional right. The other piece is not to lie about the identity of who you are under any circumstances. U.S. citizens may only want to give an abbreviated name.
If you're going to give a name, you give your full and complete name, but you don't necessarily have to show ICE officers your immigration documents or your citizenship documents. It's not required by law.
Are immigrants who are U.S. citizens being stopped or questioned by ICE agents more frequently right now?
That's the reality. We're getting numerous calls of individuals who are being harassed, individuals who are U.S. citizens, who are being threatened with a show of force, such as a gun pointed to their head. We have reports of individuals who have been detained. So U.S. citizens who have been detained until they can prove that they're actual U.S. citizens, so they're not believing them immediately.
And then, of course, we have many instances with individuals, for example, anyone who has DACA, which is Deferred Action for Childhood Arrivals, TPS, U visa holders with bona fide determinations for U visas, other forms of asylum applicants, all of them are getting stopped and detained. Some are being arrested, but some are simply being questioned, and their IDs are being scanned or photographed by these agents.
What about if ICE or U.S Customs and Border Patrol agents force their way into a home without a judge-signed warrant?
They've done it before, and they were faced with numerous lawsuits. I previously had filed lawsuits in similar circumstances. They are going to have a hard time getting around that that is a Fourth Amendment constitutional violation that clearly is a use of force that's above and beyond what is allowed, unless they have a judicial warrant signed by a federal judge.
If ICE knocks on your door and claims to have a warrant, what should you do in the moment?
Well, I go back to staying calm. The second thing is, do not open the door under any circumstances. If there are two doors, don't even open the inner door because that may be an indicator that they can walk in.
Ask the agent on the outside if they have a valid warrant signed by a judge. If they say, yes, we do, then say, can you please slide it under the door so that we can chat and see. And if they can identify this as a valid judicial warrant, then they're required by law to open the door.
You can also say, I do not consent to your entry or any search of my home, and this can be done through the door in a loud voice.
If ICE enters illegally, what should someone do afterward?
Document all interactions, dates, times, badge, if you can see badge numbers, vehicle numbers, what is being said. There's something in the law called excited utterances. That is the initial response. The things you will write down and say immediately. Get them immediately on a document, in a recorder, describe exactly what has happened, contact friends, families, an immigration lawyer, and notify someone right away of what actually happened.
I do think that the most powerful thing that we can do to resist these violations, and sort of what feels like scare tactics, is to document and report.
Is it legal to record ICE agents?
Yes, it is.
If someone is detained by ICE, who should they call and what should families do?
When they're detained, they should probably call a family member or a friend.
I encourage individuals who feel that their family member has disappeared and they've gone missing for more than 24 hours to contact local law enforcement and to say, my father or my mother has gone missing.
Law enforcement generally will contact the Department of Homeland Security, and they will follow up.
How can people prepare in advance for a possible ICE encounter?
Folks really need to talk about it. This goes for folks who are citizens and non-citizens. People really do need to come up with their own plan that is catered to their own needs.
If they have money in bank accounts, it may be difficult to obtain that money without someone else having a power of attorney.
Parents should really have a plan for their children and have an age-appropriate conversation with their children.
Folks who really are at high risk of being detained should really talk to a lawyer, retain a lawyer, and be ready if something happens.
Should people carry original documents with them?
I am hesitant to carry original copies of passports, birth certificates. However, by law, you are required to have your original DACA authorization, TPS authorization. You are required to have a Legal Permanent Resident card.
U.S. citizens are not required to have their original passport on them. So I take a photo of my passport and I put it on my phone.
