How ICE could operate and conduct arrests during Trump 2.0
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U.S. Border Patrol agents prepare to transport immigrants for processing next to the U.S.-Mexico border fence on Jan. 19 near Sasabe, Ariz. Photo: John Moore/Getty Images
Immigrants across the U.S. have been on edge as they anticipate a wave of Immigration and Customs Enforcement raids ordered by the Trump administration.
The big picture: President Trump has already acted on his promise to crack down on undocumented immigrants through large-scale deportation. With more arrests and detainments to come, ICE's tactics are becoming clearer.
- Trump declared a national emergency on the U.S.-Mexico border hours after being sworn in as president. The administration also announced it's ending the policy of avoiding arrests in churches, schools, hospitals, funerals, weddings and public demonstrations.
- Undocumented immigrants may be unsure of the laws pertaining to the rights of federal agents, whether it be on allowing entry or making arrests.
- Here are the key actions seen or anticipated so far:
Processes and documents to know about
The Department of Homeland Security expanded its use of a process called "expedited removal" last week.
Expedited removal essentially puts undocumented people at greater risk of being placed in a rapid deportation process, according to the National Immigration Law Center.
- It can remove their opportunity to appear before an immigration judge or fight their case.
- It expands expedited removal to apply nationwide, rather than just near the southern border.
- If someone has been in the country less than two years, they can be subjected to the process.
Zoom in: Individuals arrested by ICE have a better chance to fight their case in immigration court if they can prove how long they've been in the U.S., Nicole Hallett, director of the Immigrants' Rights Clinic at the University of Chicago, told Axios.
- A lease or bank statement can help an undocumented person provide "proof or evidence that they've been in the country for more than two years," she said.
When ICE can enter a private place
The Fourth Amendment provides the greatest constitutional protections in a private home, Andres Guerra, an immigration attorney with the Coalition for Humane Immigrant Rights, told Axios.
Here are the situations where ICE or a federal officer can enter a home:
- By presenting an arrest warrant, ICE can enter the home of an individual who is known to reside at that address. ICE can also enter with a search warrant for that property. Both would require a judge's signature.
- If they receive consent, a federal officer can enter a home, Guerra said, adding that they can obtain that through trickery, though not coercion.
- In exigent circumstances, like when they might be responding to an emergency, or if they can hear or detect an emergency happening inside the premises.
What ICE can do in a public place
In a public place, there's less of a sphere of protection, so immigration agents can initiate contact with an individual, Guerra said.
- Individuals have no obligation to provide any documentation, information or even their identity to the immigration official, he added.
- Agents can use an arrest warrant signed by a judge to arrest somebody in a public place. They can also use an order of removal or deportation signed by a judge.
What to look for in an ICE warrant
Administrative warrants are issued by an ICE officer, giving ICE the authority to arrest someone and put them in removal proceedings.
- That administrative warrant, however, does not give ICE the authority to enter a private home or to enter other private buildings or areas that are not open to the public, Hallett said.
- For that, ICE agents need a judicial warrant that's signed by a judge.
Between the lines: Most of the time, ICE does not have judicial warrants, Hallett said. They usually have administrative warrants.
- It can be confusing for people because they're both called a warrant, so people may think that the agent has the right to enter their home, she said. But once consent has been provided, agents are allowed to enter.
- "So they're kind of counting on this confusion to get people to consent and to allow ICE to enter a home," Hallett said.
- "What you want to look for is that the warrant is signed by a U.S. district judge, not an ICE officer," she explained. "If it is signed by a U.S. district judge, then you do have to let them enter because that's a valid warrant."
Are the rules different in places with sanctuary policies?
There are no differences in what ICE has to show when entering a private home in places/cities with sanctuary policies.
- The only difference in sanctuary jurisdictions is that local law enforcement will not be helping with immigration enforcement, Hallett said.
Go deeper: Schools tell parents their kids are safe from ICE arrests on campus
