Every person in the United States, regardless of their race, legal status, or country of origin, holds certain rights under the U.S. Constitution.
If you are stopped by a police officer or an immigration agent in public, you should exercise these rights in order to protect yourself from being detained or arrested.
In this article, we'll cover what you need to know if you're stopped on the street and questioned by law enforcement.
Know the Law
Immigration enforcement agents (including agents from all Department of Homeland Security agencies, such as Border Patrol and ICE) have the authority to enforce U.S. immigration laws.
However, this authority is also restricted by laws and procedures at the federal and state levels.
For example, an ICE agent can stop anyone on the street and ask them questions.
However, unless the agent is specifically detaining the individual for questioning, the individual also has the right to simply remain silent and walk away.
This interplay between an agent's authority and a person's constitutional rights can lead to situations where immigration agents or local police will sometimes overstep their authority as a result of the the individual not understanding their rights.
For this reason, it's extremely important that you understand the basics of both (1) what the laws are, and (2) how these laws apply to you as an individual.
Probable Cause and Immigrant Rights: Why ICE Has Less Power Than You Think
As with most interactions with law enforcement, the outcome of an ICE stop will vary based on how the agent (and the stopped individual) chooses to escalate the situation.
Generally speaking, there are three "levels" of escalation during a stop:
- Consensual Questioning – An immigration agent can ask anyone a question, but that doesn't mean the person has to answer. However, if the officer has a "reasonable suspicion" that you are not a U.S. citizen (or permanent resident), they can detain you for further questioning.
- Note that your skin color, inability to speak English, or location (such as if you're near a location that ICE is raiding) are not credible grounds to detain you for questioning.
- Detention – An immigration agent can only detain you for questioning if they have a "reasonable suspicion, based on specific, articulable facts" that you are not a U.S. citizen and that you entered the country illegally.
- Under the I.N.A. it a crime to enter the country illegally, but not to stay in the country (such as if you overstay a visa). For this reason, the agent must be able to articulate why they believe that you entered the country illegally.
- Running from the agent, refusing to give the agent your name, or providing false paperwork, for example, could give the agent probable cause to detain you.
- Arrest – An immigration agent can arrest you if they have an arrest warrant, or if they have probable cause that you are (1) not a U.S. citizen, (2) that you entered the country illegally, and (3) that you are likely to flee before they can obtain a warrant.
The important thing to note here is the way that an immigration official can escalate the situation.
Specifically, they must have a reasonable suspicion that (1) you are not a U.S. citizen, and (2) that you entered the country illegally.
If they randomly stop you on the street, the likelihood that they have either is extremely low, and it's important that you don't give them a reason to suspect that either is true.
Don't run, don't resist, don't try to bargain your way out of the situation. Simply ask if you are free to go, and then calmly exit the situation.
One Quick Note: Always Carry Your Green Card
Under federal law, all green card holders (who are 18 or older) must carry their original green cards with them at all times.
As noted in the Immigration and Nationality act:
"Any alien who fails [to carry their green card]...shall be guilty of a misdemeanor and shall, upon conviction for each offense, be fined not to exceed $100 or be imprisoned not more than thirty days, or both."
Section 264(e) of the Immigration and Nationality Act (I.N.A.)
Now, it's important to note that ICE will most likely not stop, persecute, and jail you just for failing to carry your green card.
However, what they can do is use your failure to carry a green card as "probable cause" to arrest you on an immigration violation.
After all, if you can't produce paperwork that you're a legal immigrant (so the argument goes), how will ICE know that you're here legally in the first place?
For this reason (and more), it's generally a good idea to keep your green card on you at all times.
Another Quick Note: Carry a "Red Card"
On a related note, it may also be wise to carry a "red card" with you for safety purposes.
"Red cards" aren't official or legal documents. Rather, they are printable cards that detail your rights as an immigrant (regardless of your legal status).
These cards were popularized by the Immigrant Legal Resource Center, and are a useful tool for protecting your rights during a stop.
Further, since they are made to fit into your wallet, there's really no harm in printing one off as an extra insurance measure for the future.
Know Your Rights
Even as an immigrant (whether documented or undocumented) you still have the same rights as normal citizens.
Knowing what your rights are, and how you can use them in a situation such as an ICE stop, can help you protect yourself during a potentially dangerous situation.
Additionally, you should note that these rights are the same when you're at home or at work as well.
The only real difference lies in how you get your point across that you're exercising these rights.
In the contexts of a police or ICE stop, you have five general rights that you can exercise to protect yourself from detainment and arrest.
We'll outline the basics of these rights below.
You Have the Right to Remain Silent
You do not have to speak with an immigration agent, or answer any of their questions. In Virginia (where our offices are based), you don't even have to give them your name.
If an immigration agent plans to arrest you, they will do so regardless of what you say. By talking, you simply increase the chance that they will detain and arrest you.
In most cases, the best course of action is to ask the agent if you're free to leave.
If the officer says "yes," simply stop talking with them and walk away. If they say no, you should exercise your right to remain silent while they finish their investigation.
You Have the Right to Refuse a Search of Your Belongings
Even if an immigration agent detains you for questioning (i.e. if they say "you are not free to leave"), they cannot search your belongings without a warrant, signed by a judge, that explicitly gives them permission to do so.
They cannot search your purse, they cannot search your pockets, they cannot ask you to open the trunk of your car.
At most, they can pat you down if they suspect that you are carrying a weapon.
The only situation where they can search your belongings is when you give them permission to do so, and you should never give them permission to do so.
You Have the Right to Speak with an Attorney
If you are detained or otherwise taken into custody, you have the right to immediately contact an attorney.
Note, however, that you do not have the right to an attorney. By this, we mean that the court will not appoint an attorney for you.
Instead, you'll have to hire your own attorney to help you with your case.
You Have the Right to Refuse to Sign Documentation
You can (and should) refuse to sign any and all paperwork until speaking with an attorney.
Sometimes, ICE will try to deport detained immigrants after convincing them to sign voluntary departure paperwork. This is something that you should avoid.
In general, you should always speak with an attorney about any paperwork that ICE asks you to sign.
Reduce Your Risk of Arrest
Often, sadly, there is a stark difference between what happens in an "ideal" arrest and what happens in real life.
As recent news has shown, there are very few protections in the moment of the arrest that can keep an otherwise innocent individual out of harm's way.
For this reason, it's often better to reduce your risk of arrest in the first place than it is to argue over semantics while an ICE officer is trying to handcuff you.
The best advice, of course, is to have a plan for what you'll do if you're arrested in the future.
However, there are still several ways you can further protect yourself both during and after the arrest itself, as outlined in the tips below.
Tip #1 – Don't Lie
Lying to law enforcement of any kind is usually a bad idea.
Not only can it negatively impact your credibility in the long run, but it can also get you into additional trouble (provided that you were even in trouble to begin with).
Remember, if you don't want to give the agent any information, simply remain silent.
Tip #2 – Stay Calm and Be Polite
Panic can often lead to mistakes and accidental incrimination.
It can make you say things that you don't mean, and you might end up doing or saying things that will hurt your case.
For this reason, you should try your best to remain calm throughout the encounter.
Calmly and politely assert your rights ("I would like to exercise my right to remain silent." "Am I free to go?" "I want to talk to my lawyer") and avoid doing anything that is overtly suspicious.
Running, for example, can give the ICE agents probable cause to detain and arrest you.
The same is true for excessively arguing with the agents, lying about your country of origin or legal status, or otherwise trying to impede the agent's investigation.
Tip #3 – Don't Resist if They Try to Arrest You
As a more extreme version of our previous tip, you should never resist an arrest, as doing so could open you up to additional charges and penalties.
Regardless of the circumstances of your case, it is always in your best interests to cooperate with the actual "arrest" part of your arrest, even while you refuse to answer questions about your case.
Remember, the agent must have a "reasonable suspicion, based on specific, articulable facts" that you are (1) not a U.S. citizen, and (2) that you originally entered the country illegally.
By resisting arrest, you will only hurt your immigration case in the long run.
Further, you may open yourself up to assault charges that could sink your immigration case altogether.
Tip #4 – Record the Incident
It's generally a good idea to record any interactions with the police, if only as a safeguard in case other sources of documentation fail.
By recording the encounter, you can document the specific procedure of the arrest in case it becomes an issue in the future.
Tip #5 – Be Aware of the Documents You're Carrying
Again, you should carry your green card (and a red card) with you at all times if you have one.
However, you should also avoid carrying any documents that were issued in another country, or that contain information about your country of origin.
For example, if you are stopped by an ICE agent and you only hand them a passport from a foreign country, they may detain you for further questioning or, in more extreme cases, arrest you outright.
Always take note of what you're carrying, and how an immigration official might respond if you present this information as proof of your legal status.
Tip #6 – Contact an Attorney, Especially if Your Rights were Violated
If you are arrested or otherwise detained by an ICE official or other immigration agent, you should request to speak with an attorney immediately.
You should avoid speaking until your attorney arrives, and you should never sign anything until an attorney has reviewed it.
If you believe that your rights were violated, you should take steps to document the incident as best you can.
Try to remember the names of any agents involved, and, if you have access to paper and writing utensils, make note of any badge numbers, patrol car numbers, or other information that might help your case.
Write down a general description of the incident, and describe what happened as best you can.
If there were witnesses to the incident, you should get their contact information as well.
Take all of this information to your attorney as soon as possible.
Conclusion
If you are stopped in public by an ICE agent or other immigration official, you should exercise your rights to avoid a worst-case scenario.
Generally speaking, you should avoid a confrontation with the agents at all.
Ask if you're free to go and, if so, simply walk away from the situation.
If the agents try to detain you, exercise your right to remain silent and refuse to give them permission to search your belongings.
Finally, if you're arrested, request to speak with an attorney immediately, and avoid signing any documents they provide to you.
