Immigrants Are The Easy Targets

Here are some tips for immigrants should ICE come to the door.

immigration officer immigration customs enforcement ICEIn an Executive Order published at the end of January, President Trump made the following declaration: “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.  These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.”

These are harsh words, but are they true?  Do so-called sanctuary jurisdictions endanger the safety of our Republic, or is this a gross overstatement based on prejudice, fear-mongering, and a misunderstanding of what sanctuary jurisdictions do?

Based on my work representing immigrants who have criminal convictions ranging from incidental crimes like possession of marijuana to more serious offenses like burglary or assault —  the serious offenders are not being released back into U.S. communities.  They are, rather, being picked up through ICE detainers at the conclusion of their prison sentences.  The sanctuary cities do not shield them.

Contrary to the President’s position, sanctuary jurisdictions are willing to comply with ICE detainers just not at the point where the person has merely been arrested and not convicted.  Even non-citizens of the U.S. are protected by the U.S. Constitution, and according to that document, no person is guilty of a crime until or unless he is convicted.  The conflict arises because the president’s new mandate contradicts this basic right by authorizing the ICE detention of immigrants merely for being charged with an offense, no matter how incidental.  Sanctuary jurisdictions merely oppose the notion that an ICE detainer, issued without the approval of a judge, is sufficient to compel state authorities to hold the person.

Once in criminal court, all people, citizens or not, benefit from the due process standards of the Constitution.  If an immigrant is arrested, he has the right to a lawyer like everyone else; he has the right to remain silent; he is innocent until proven guilty, and he has the right to fight his case.

However, once in ICE custody, a much different playing field, many constitutional rights do not apply to aliens. Examples include:

  • A detained alien is not read Miranda rights.  Although the immigrant can refuse to answer ICE officers’ questions, he is never told that he has the right to remain silent.
  • There is no right to a lawyer if he cannot afford to pay for one.  A minority of jurisdictions provide free counsel services in immigration court, but these are the exception, not the rule.
  • The burden of proof is on the immigrant, not the government.  In other words, the immigrant must prove he is not deportable, or that he deserves some form of relief.
  • An immigrant in deportation proceedings is not entitled to simultaneous interpreting services if he doesn’t speak English.  Unlike a criminal proceeding where, if the defendant speaks Spanish, an interpreter tells him every word that’s being said in the courtroom, in immigration court the interpreter only interprets what the judge says to the immigrant, and the alien’s responses back to the judge.
  • If the judge asks the immigrant a question, even if it relates to an open criminal case that the immigrant might not want to speak about on the record, if the immigrant refuses to answer, the judge can assume an adverse inference.  For example, the immigrant might have an open case involving drug possession.  The judge could ask, how much drugs did you possess?  If the immigrant refuses to answer the question, the judge can assume the highest amount that fits the statute.

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As part of the Executive Order, President Trump also included a mandate that compels a weekly report be generated listing all the “illegal aliens” from sanctuary jurisdictions who have been charged with committing crimes there.  This shame tactic generates hate and fear of whole classes or people who, for the most part, are committing no criminal act except overstaying their visa.

According to the Migration Policy Institute, an independent, nonpartisan think-tank in Washington, D.C., dedicated to analysis of the movement of people worldwide, only about three percent of the 11 million immigrants living in the U.S. without authorization are convicted felons.  The vast majority of immigrants here have committed no crimes (except for being here without permission); 60% have lived here for at least 10 years; one-third own homes and have children who were born in the United States.

Already since the implementation of President Trump’s new anti-immigrant policies, police report that in several states, immigrants willing to report that they have been the victims of crime has gone down.  They are unsure and afraid of the repercussions any police contact might have to them and their families.  According to the LAPD, Latino communities are reporting fewer sexual assaults and domestic violence incidents since January 2017.  The office draws a correlation between the diminished number of reports and the chilling effect Trump’s Executive Order is having on immigrant communities.

The real question becomes, what’s really behind Trump’s directive?  It prompted the hire of 10,000 new ICE agents who will target the largely voiceless immigrant population — people who can’t vote, who are afraid to come out of the shadows, and now are afraid of being ripped from their children and the communities in which they’ve been a part.

It’s a great flexing of muscles without any real purpose. The President needs no consensus, no bipartisan compromise.  The beauty of immigration law is that the President can rule by fiat, exactly what he’s doing.  It makes him looks strong, like he’s achieved something, but in reality, the new order may be making the country less safe.

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So here are some tips for immigrants should ICE come to the door:

1) Don’t answer the door.  They may be able to bust in if they have a warrant, but there’s no need to facilitate it.

2) Do not answer any questions.  There is no obligation to speak to ICE agents.  Even though they will not read Miranda rights, the immigrant can and should remain silent.  “I have an attorney” is the best answer to any question.

3) Do not lie.  It’s far better to say, “I do not want to answer your questions,” than to lie about any question being asked. The lying becomes a new crime — immigration fraud — and will land the immigrant in worse trouble than if he chose to say nothing at all.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.