Know Your Rights: What To Do If You Encounter ICE

After dozens of Immigration and Customs Enforcement (ICE) detentions in the Bay Area and a Customs and Border Protection (CBP) deployment in October, the Department of Homeland Security’s (DHS) activity has become increasingly hard to ignore. But even as DHS’s presence grows more visible, the legal system behind it remains clouded for many.

ICE is a relatively new federal agency created after 9/11 as part of DHS. While it is legally authorized by Congress, its enforcement powers are unusually broad because immigration law is civil rather than criminal, and DHS was created with expansive authority over national security. This structure allows ICE greater discretion and fewer safeguards than many other federal law enforcement agencies. Multiple lawsuits throughout the country allege that ICE has violated the law, filing suits over inhumane conditions and denial of due process.

“A lot of how the public thinks immigration works and what is allowed in immigration is very different from how Congress wrote the law, what [it] authorizes, and how it works in practice,” Co-Director of the Immigration Clinic at the University of Texas at Austin School of Law Elissa Steglich said.

What are your rights? When do you have them?

Regardless of immigration status, all people in the U.S. are granted Fourth and Fifth Amendment rights when dealing with law enforcement. These include the right to remain silent, protection from unreasonable searches and seizures, and the right to due process. Individuals generally have the same rights when encountering an ICE agent as they do when encountering any law enforcement officer. Despite the differences between ICE and other forms of law enforcement, citizens should hold the same Constitutional rights when engaging with either.

“It really is the same, whether it’s a police officer, whether it’s an ICE officer, every individual, regardless of immigration status, has the right to remain silent,” Steglich said. 

However, one is not guaranteed protection just by invoking their Fifth Amendment rights. “Silence alone, even though it is a right, and I can invoke it, doesn’t guarantee that I won’t be detained or arrested,” Steglich said. “But it does make it a little harder, rather than me saying ‘Yes, I’m from x country and I am here without any status.’” 

Furthermore, the Fourth Amendment guarantees that private property cannot be searched without a judicial warrant and probable cause. Law enforcement can’t enter private property, such as a car or house, without explicit permission from a judge. This means rights and protections significantly increase in private locations. 

“There are many more protections on one’s private property, certainly in the home. If the door is closed, you don’t need to open up for any law enforcement officer unless they have a judicial warrant, and that includes ICE,” Steglich said. 

Fourth Amendment rights center around an “expectation of privacy” which can change drastically based on minuscule details. “Being outside is a little harder. If you have a locked fence, that gives you a little more authority to say no and not engage and not allow a person in,” Steglich said. “Out in the street, your rights lessen. If you’re in the car, there’s a little more protection.”

Steglich explained that generally, one has the greatest expectation of privacy in the home, the area immediately surrounding it—like a back or front yard—or private accommodations, like hotel rooms. Expectations of privacy lessen in vehicles, and is the least in public areas such as shopping malls, stadiums, streets, and airports. In situations with little to no expectation of privacy, ICE can make arrests solely based on probable cause, without a warrant.

The Fourth Amendment requires all law enforcement officers, including ICE, to have a judicial warrant to enter private accommodations. ICE also issues its own warrants, known as administrative warrants. Administrative warrants are issued from within the agency, allowing officers to detain individuals for immigration violations, but not authorizing entry into a home without consent. Judicial warrants are signed by a judge and carry the legal authority to authorize searches or arrests without consent. 

“ICE does issue its own warrants. [They] are signed, not by a judge, but by an officer […] Nobody has to open up the door for that administrative warrant. But if [ICE has] gone to court and had a federal judge sign an order allowing entry, then they can come in,” Steglich said. 

Administrative and judicial warrants can appear very similar, but there is a crucial difference to look out for. Judicial warrants will have a judge’s signature near the bottom of the paper. Administrative warrants are signed by an officer, not a judge.

The process to obtain a judicial warrant is long and complicated, so ICE often resorts to administrative warrants and arrests off the street. “They only use administrative warrants,” Steglich said. “For an immigration violation that is a civil violation, they don’t go to federal court. If they’re going to federal court, it’s usually for a criminal matter.”

While ICE must always act in accordance with the Constitution, it faces few other restrictions on how to conduct immigration and deportation proceedings. “The law does allow for arrest, detention, and deportation in a way that looks very criminal,” Steglich said. “I think it allows for deprivations of liberty in a way that we associate with punishment, but Congress has authorized it for these civil immigration proceedings.” 

“I think there’s an assumption that those really harsh enforcement tools that ICE has are only allowed to be used against individuals with certain criminal histories, and that is just not true,” she said. “There’s a certain thought that if there is detention, if there is arrest, it’s probably used against individuals coming out with certain criminal histories, but not against my neighbor, not against my child’s teacher, not against members of the community where there is trust and they’re part of the fabric of the community, and where it just doesn’t feel right.”

While Steglich urges people to stay calm and assert their rights, she understands the difficulty of remembering complicated legal advice in spur-of-the-moment situations. “Well, in that moment when a gun is being drawn on me, how will I react? What do those rights really give me in that moment?” she said. 

Because it can be overwhelming to remember all of your rights in a sudden encounter, here are some clear steps you can take if you encounter ICE. What follows is a compilation of advice created by speaking to Steglich and consulting resources including the Northern California American Civil Liberties Union, National Immigrant Justice Center, Immigrant Legal Resource Center, and the Immigrant Defense Project.

1. Stay calm and do not open the door, as officers may treat this as permission to enter.
2. Ask agents to identify who they work for and provide any official documentation and warrants.
3. If they provide a warrant, confirm whether it is administrative or judicial.
4. Be clear: “I do not consent to answer questions, a search, or your entry.”
5. Do not physically resist. 
6. Only hand over required identification. 
7. Never give false documents.

1. If you are the driver, you must pull over.
2. ICE is often in unmarked vehicles, so be aware of lights or sirens.
3. You are not required to open your window or your door. You may speak through the closed window or open it slightly to avoid giving up your expectation of privacy. 
4. Stay in your car unless specifically asked to exit. If so, you must exit. You do not have to consent to a search. Officers can pat you down, but they cannot search your pockets or your car without probable cause or a judicial warrant. 
5. Ask why you have been pulled over.
6. Ask agents to identify their agency, and provide official documentation and warrants. 
7. Ask if you are free to leave. ICE can only continue if they have an individualized suspicion that you are violating immigration law, and they must provide evidence.

1. Ask for and record all agent identification, documentation, and warrants.
2. Video recording is allowed, as long as one does not interfere. You are not required to hand over any recording devices if asked.
3. Do not physically resist.

1. Ask for a lawyer immediately. If you do not have or cannot afford a lawyer, ask an officer for a list of pro-bono or low-bono lawyers. 
2. Do not sign any documents without a lawyer present.
3. If you are arrested, immediately notify ICE of any medical needs or childcare responsibilities.
4. If a loved one is arrested, you can attempt to locate them by searching the detainee locator system or calling the detention center. 

For more information, consult the What If My Loved One Has Been Arrested By ICE section of the Immigrant Defense Project’s informational booklet.