On Feb. 27, 2017, a man sits, sipping tea at the dining room table in his Pennsylvania home when federal immigration officers arrive at his door. Once inside, they demand his ID, which shows he is not a US citizen. Then, they arrest him and his co-worker, who arrives for their morning carpool. Neither man has a criminal record.
Four months later, his lawyer argued in immigration court that none of the evidence the officers gathered should have be used.
According to lawyer Thomas Griffin’s motion to suppress the evidence, which he provided to PRI, the officers flashed their badges and asked to be let into the home. They were looking for the prior occupant of the home, not his client. After months in immigration detention, both were deported to Turkey.
Griffin redacted his client’s name from the documents he gave PRI because he isn’t able to reach his client in Turkey for consent; immigration court records are not generally available to the public without consent of the immigrant involved.
In a criminal court, any evidence found by such an arrest would almost certainly be thrown out because the officers entered his home without a search warrant. But immigration cases are civil, not criminal — a distinction that makes a difference.
Suspected undocumented immigrants have the same constitutional rights as citizens, but the standards for civil arrests are much more lenient than in criminal cases. In other words, federal agents with Immigration and Customs Enforcement (ICE) does not follow the same standards as other law enforcement agencies to protect people from unreasonable search and seizure by the government.
“Local, state and federal law enforcement agents in every jurisdiction in the United States follow this Constitution procedure every day and have since the Fourth Amendment was added to the Constitution,” says César Cuauhtémoc García Hernández, a University of Denver law professor. “In contrast, ICE does not follow this procedure.”
From the day Donald Trump took office through Sept. 30, 2017, ICE arrests increased by 42 percent compared to the same time period the year before, according to an analysis of government data by Pew Research. Officers have been more aggressive in their tactics, too. They have shown up in courtrooms, conducted worksite sweeps and confronted people in their homes without warrants. Immigration lawyers say there is an increased need for immigrants’ legal protections to be reconsidered.
“This is a brewing question that is becoming more intense,” says University of Las Vegas law professor Michael Kagan.
García Hernández says that ICE is working on the assumption that the people they target don’t know their rights under the Constitution, that they don’t know the difference between a warrant signed by a judge and other documents ICE may show as proof that they are allowed to enter someone’s home.
“Traditionally ICE and its predecessor, the Immigration and Naturalization Service, did not go around knocking on people’s doors very often. Now that ICE is doing that more frequently, the body of judicial decisions is starting to grow,” García Hernández says.
Video created by Brooklyn Defender Services and the American Civil Liberties Union.
A new “Know Your Rights” video series produced by the Brooklyn Defender Services and the America Civil Liberties Union depicts ICE officers using aggressive and tricky tactics to make people identify themselves or allow officers into their homes. In the animated spots, released on March 27, agents are shown telling their targets that their “ICE warrants” — not signed by a judge — give them authority to enter a home. In the videos, they pose as police officers and lie that a person is wanted in a criminal case as suspect or witness. Nyasa Hickey, an attorney with Brooklyn Defender Services, says the depictions are based on what clients have told her organization and other advocates.
In a statement to PRI, ICE spokesperson Sarah Rodriguez says that ICE officers identify as police because they are “sworn law enforcement officers.”
“The word ‘POLICE’ is a universally recognized symbol of law enforcement in most cultures, an important distinction given that many of the individuals with whom ICE interacts are not native English speakers,” she writes in an email.
Rodriguez did not respond to allegations that ICE officers use so-called “ICE warrants” to enter homes or feign reasons to enter other than an immigration arrest.
An “ICE warrant,” signed by a Department of Homeland Security (DHS) official instead of a judge, doesn’t technically allow an agent to demand entrance into someone’s home — but making that case in immigration court, after it has been confirmed that a person is not a US citizen, is an uphill battle.
The protocol for ICE arrests is “one of the most complicated areas of immigration law,” says Ashley Tabaddor, president of the National Association of Immigration Judges. Broadly, the only evidence that an ICE officer needs to arrest a person is their identification and proof that they are not a citizen.
“How they got that becomes irrelevant for immigration proceedings,” she says. “The powers of DHS in immigration enforcement is pretty vast. Absent some egregious violation, all they need to do is get the body and show that the person wasn’t born in the US.”
Griffin, the lawyer whose client was deported, explains their authority this way: “In the criminal context, even putting your foot in the door without a warrant is unconstitutional. Once you say something is civil you don’t have these protections.”
Several court cases involving ICE arrests and the Fourth Amendment have made their way to courts of appeal in recent years, but the decisions have been conflicting. The Supreme Court hasn’t taken up the issue in decades. Law professor Kagan says that the Trump administration’s increase in arrests makes it more likely for a case to reach the Supreme Court in the next few years. This is especially true if agents continue to enter people’s homes or workplaces without judicial warrants.
“ICE wants to have its cake and eat it too,” says Kagan. “ICE wants to act like police officers, they want to knock down doors, say that they are fighting crime. But then they don’t want to follow the procedures like officers do every day.”