- Author: Daniel M. Kowalski , Lexis Nexis
Ava Benach, Dec. 28, 2015 – “Happy New Year! Have an ICE raid! By now, everyone has heard that the Obama administration plans to celebrate the new year by rounding up families and removing them to Central America. The administration hopes that the images of Central American families coming off of planes in San Salvador and Tegucigalpa will dissuade thousands of Central Americans from fleeing the violence and persecution that threaten their lives on a daily basis. This dreadful idea puts the final nail in the coffin of the administration’s mantra that it seeks to deport “felons not families” and focuses on removing the worst of the worst. The baldfaced nature of this lie has been apparent for years, but it is unlikely to endure as the administration rounds up, using the vehicle of an old style ICE raid, women and children for return to the violence of their home countries. All that will be left in the empty space created by the departure of the lie will be the fact that the Obama administration has been a nightmare for immigrants while projecting a happy face to credulous partisans.
Reports have ICE raids on recent immigrants beginning as soon as January 2016. The reports have indicated that the administration will be seeking to enforce removal orders entered against immigrants after January 1, 2014.While there have always been removals of anyone with a removal order who is encountered by ICE, there is no indication that ICE will be seeking out those with removal orders entered prior to January 1, 2014. Should such a person come to the attention of ICE, ICE will seek to enforce the order. But, according to the reports, ICE will not be seeking to conduct raids to find such individuals, unless they have criminal convictions or present national security threats. Again, according to media reports, an ICE raid will target those with a final order of removal entered by an immigration judge after January 1, 2014. If a case is on direct appeal to the Board of Immigration Appeals from an immigration judge’s order of removal, that order is not yet final and can not be enforced.
One good thing to have come out of the aggressive enforcement of the Obama years has been the immigrant community’s growth as a savvy political force capable of asserting itself and protecting itself in the face of relentless enforcement. Immigrant youth have led the charge for deferred action, for the curtailment of immigration detention, for the prominence of private jails as an issue in the Democratic primary and for the respect and dignity of all immigrants and not just the most photogenic and sympathetic.
In this spirit of empowerment and fighting back, we want to offer some tips on how to respond if ICE comes knocking at your door:
- DO NOT OPEN THE DOOR. ASK TO SEE A WARRANT. ICE may not enter your home without a warrant signed by a judge. You do not need to open the door. You do not need to answer questions. ICE needs a warrant to enter your home. Do not open the door. Ask for the warrant to be slipped under the door. If they have a warrant that allows them to search your property, you must let them in, but you do not have to speak.
- DO NOT ANSWER ANY QUESTIONS, EVEN YOUR NAME. You have a right not to answer questions from ICE. Tell them that you want to speak with a lawyer, even if you do not have one. Many organizations visit with immigrants in detention and can arrange for pro bono (free) counsel. That lawyer will be happy that you said nothing.
- DO NOT SIGN ANYTHING. Again, tell them that you want to speak to a lawyer.
If ICE arrests you in a ICE raid:
- Continue to follow the advice above of not speaking to them and asking for a lawyer.
- MAKE A PHONE CALL. If you are arrested, you have a right to make a phone call. Call family. Call a lawyer. Tell people where you are and who is holding you.
- TALK TO A LAWYER. A lawyer can evaluate whether there is a valid order of removal against you. The lawyer can also advise whether there were flaws in your removal proceedings and whether the order of removal can be challenged. The law allows for individuals to file motions to reopen their removal proceedings. While there are time limits to the filing of motions to reopen, there are circumstances in which a motion to reopen can be considered at any time. A lawyer can also file for a stay of removal from the immigration courts or the Board of Immigration Appeals. The entry of a stay prohibits ICE from removing you. If a removal order was entered against you in absentia and you did not receive notice of the hearing, the filing of a motion to reopen will automatically stay removal. A lawyer can also determine whether there is a basis to seek a stay from ICE as well.
Many of the orders entered after January 1, 2014 were entered after proceedings that failed to meet basic standards of due process. This makes the removal orders entered in those proceedings vulnerable to attack. Just because an order was entered does not mean that your rights have come to an end. It is important that during this period of heightened anxiety that individuals caught up in an ICE raid keep the spirit of survival that motivated them on their journeys from harm and retain control of their destinies and take the help that is available to them.”