Tag: Immigration Customs and Enforcement (ICE)

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Understanding your Rights during an ICE Encounter

Understanding your Rights during an ICE Encounter
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With the threat of mass deportation looming again, you must understand your rights during an ICE encounter.

In 1954, Operation Wetback led to the mass deportation of Mexican laborers from the United States. Approximately one million immigrants were deported during this operation. Fast forward to 2025, the threat of mass deportation looms again, echoing the campaign pledge of President Trump. Now, as President-elect, this pledge is beginning to materialize, posing a real threat to all undocumented immigrants. An estimated 11 million unauthorized immigrants are at risk of arrest. However, the likelihood of being targeted in an Immigration and Customs Enforcement (ICE) raid depends on the government’s priorities.

Mass deportation raises serious concerns about human rights, community stability, and the legal protections afforded to individuals, regardless of their immigration status. Understanding the factors that determine enforcement priorities and the rights of those targeted is crucial for those living in the United States without proper legal documentation.

Who Is Most Likely to Be Affected?

The government’s priorities for arrest and immediate deportation include several categories of individuals:

Criminal Convictions: Individuals with final criminal convictions for aggravated felonies or those deemed threats to national security and public safety are prioritized for deportation. This category often includes individuals with complex legal and humanitarian considerations.

Outstanding Orders of Removal: Those with final orders of removal and no pending appeals are a primary focus. However, this does not apply to cases that are still open, administratively closed, or terminated, providing a small window of reprieve for some.

Recent Entrants: Those who entered the United States within the last two years and are within 100 miles of the U.S. border are at heightened risk. These individuals often lack deep ties to the community and may face expedited removal.

Unauthorized Presence: Many immigrants present without proper documentation fall into this broad category. These individuals may have overstayed visas, been victims of misinformation, or faced unique personal circumstances. Specific examples include but are not limited to:

  • Individuals unable to file timely extensions or status changes due to unforeseen circumstances.
  • Victims of abusive relationships unable to self-petition for relief.
  • Those misled by unscrupulous agents about their immigration status.
  • Immigrants brought to the U.S. as children who are ineligible for Deferred Action for Childhood Arrivals (DACA) will be affected if there are policy changes
  • Individuals with Temporary Protected Status (TPS) if there will be policy changes .
  • Individuals overstaying visas to care for ill relatives or dependents or for other personal reasons.

Basic Rights of Unauthorized Immigrants

The Fifth and Fourteenth Amendments of the U.S. Constitution guarantee due process and equal protection to ALL people in the United States including to undocumented immigrants. Despite their immigration status, individuals in the United States are entitled to certain constitutional protections. 

What to Do If ICE Knocks on Your Door

Right to Remain Silent: You can assert your Fifth Amendment right to remain silent. Refuse to answer questions about your birthplace, immigration status, or how you entered the U.S. Politely state that you will not speak until you have consulted with a lawyer.

Right to Demand a Warrant: ICE agents cannot enter your home without a warrant. If they claim to have one, ask them to slide it under the door or show it through a window. Verify that it is signed by a judge and contains your correct name, address, and date of birth. Without a valid warrant, you are not obligated to allow entry.

Right to Refuse Document Requests: Do not provide any documents or consent to searches without consulting a lawyer. Assert your right to legal counsel before sharing any information or documentation.

What to Do If Taken Into Custody

Remain Calm and Polite: Though detention is a stressful experience, maintaining composure can help protect your rights. Avoid confrontations and remain respectful.

Right to Refuse Signing Documents: Do not sign anything without consulting a lawyer. You may inadvertently waive your rights to legal representation or a hearing, leading to immediate removal.

Right to Legal Counsel and a Phone Call: Have your attorney’s contact information readily available. While ICE does not provide legal representation, you are entitled to contact a lawyer. Use your phone call wisely to coordinate legal assistance or inform a trusted individual of your situation.

Due Process Right to a Hearing: Under the Fifth Amendment, all individuals—regardless of immigration status—are entitled to due process. Detainees typically have the right to a hearing, except for those apprehended near the border or lacking two years of physical presence in the U.S. Requesting a bond hearing may allow temporary release pending the resolution of your case.

Right to Appeal: A removal order is not final. You can appeal to the Board of Immigration Appeals (BIA) and, if necessary, to Federal courts for certain legal issues. While stays of removal during federal appeals are not automatic, they can be requested.

Right to Consular Access: Detainees have the right to contact their home country’s consulate. For example, Filipino citizens can reach out to the nearest Philippine Consulate for assistance with family communication and legal support.

Proactive Steps to Protect Yourself

Preparation can mitigate the risks associated with potential ICE raids or detention. Consider taking these steps:

  • Organize Important Documents: Gather identification, proof of residence, and other critical documents. Store them securely in an accessible location.
  • Consult Legal Counsel: Discuss your case with a trusted immigration attorney to explore possible options for relief while there is time to do so.
  • Connect with Advocacy Groups: Identify and familiarize yourself with local organizations that provide resources and support for immigrant communities.
  • Draft and Share a Preparedness Plan: Create a plan for your family, including financial and emotional support, in case of detention. Share this plan with a trusted individual or your lawyer. Ensure trusted individuals are aware of your plans and can act on your behalf if necessary.
  • Avoid High-Risk Areas: Stay away from places or events where ICE raids are likely.
  • Verify Information Sources: Rely on reputable sources for immigration-related updates. Avoid suspicious links or misinformation on social media.
  • Be Mindful on Social Media: Avoid posts that could attract attention or be misconstrued.

Conclusion

Mass deportation poses a grave threat to the immigrant community, but knowledge and preparation can provide a vital defense. By asserting their rights and seeking legal support, undocumented individuals can navigate this challenging environment. As a nation built by immigrants, it is imperative to advocate for humane and just immigration policies that reflect 21st-century realities. Only through education, community support, and legislative comprehensive immigration reform can we protect the rights and dignity of all individuals in the United States.

(Atty. Lourdes Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C., law firm established in 1992.  She is also a producer/host of Pusong Pinoy sa Amerika, an immigration law informational show aired on GMA Pinoy TV. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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U.S. District Court Judge Orders Injunction on Biden’s Priority for ICE Enforcement & Prosecutorial Discretion Memos

U.S. District Court Judge Orders Injunction on Biden's Priority for ICE Enforcement & Prosecutorial Discretion Memos
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If ICE were to immediately do an en masse arrest, detention and removal of millions of unauthorized immigrants from the United States, it will not only be an inhumane undertaking but there will also be an adverse socio-economic impact and a tremendous drain on government resources.

With a policy for a more compassionate immigration policy, President Biden issued policy directives through the Immigration and Customs Enforcement (ICE) agency early this year.

The Biden-Harris Administration came out with “priorities for enforcement” through ICE memoranda and directives:

(1) Pekoske Memo Dated January 20, 2021: Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities;

(2) Johnson Memo Dated February 18, 2021: Interim Guidance: Civil Immigration Enforcement and Removal Priorities

(3) Maher Memo Dated May 27, 2021: Implementing Interim Civil Immigration Enforcement Policies and Priorities;

(4) Trasvina Memo Dated May 21, 2021: Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities

The Pekoske and Johnson Memos set interim guidelines for immigration enforcement, including providing guidance to ICE ERO officers on prioritizing enforcement actions, custody decisions, the execution of final orders of removal, and other actions. Priorities for enforcement listed those individuals who are threats to national security, border security public safety and those with convictions for aggravated felonies.

The Maher and Trasvina Memo, on the other hand, provided guidance on ICE exercise of prosecutorial discretion (PD) at all stages of ICE enforcement including, but not limited to, issuance of Notice to Appear, Cancellation of the NTA, Stipulation to Relief, Administrative Closure, Termination and Continuances of Removal.

Notwithstanding the compassionate and practical nature of the priorities for enforcement and the reasonable guidance provided on prosecutorial discretion as contained in the Memos, the States of Texas and Louisiana filed a lawsuit against the Biden Administration questioning the legality of the abovementioned Memoranda (State of Texas v. United States, 6:21-cv-16 (S.D. Tex. Aug. 19, 2021). As a result of the lawsuit, Judge Drew Tipton issued a preliminary injunction against ICE restraining them from enforcing the ICE Memos. The injunction was temporarily suspended on August 23, 2021 until August 30, 2021.

Before the issuance of the injunction order, several immigrants who are in removal proceedings applied for Prosecutorial Discretion based on the relevant ICE Memo resulting in closure and sometimes termination of removal proceedings. With the injunction, the ICE priorities for enforcement and the prosecutorial discretion based on the subject Memos may not be enforced in the interim pending litigation. But this does not necessarily mean that the immigrant in removal proceedings may not avail of the request for prosecutorial discretion and other applicable reliefs based on ICE long standing policy. It will be best to seek legal advice from professional legal counsel for existing remedies that may still be available pending the final decision on the lawsuit.

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2020 U.S. Immigration Outlook for Filipino Immigrants

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2020 is a Presidential election year. Whether the United States will have a new or a re-elected President, immigrants and their families will be facing major changes in immigration policies. Let’s examine and determine the prospects of 8 major immigration policy changes that may affect our Filipino immigrants.

The Filipino World War II Veterans Parole Program (FWVP)

The FWVP program was created in June 2016 in recognition of the extraordinary contributions and sacrifices of Filipino veterans during WWII. This program allowed their family members to join the veterans or their widows in the U.S. while their visa petition is waiting for visa availability. After 3 years, several hundreds of family members were allowed in on parole under the FWVP program. As part of the administration policy to eliminate parole programs, the USCIS announced in August 2019 that it will terminate the FWVP. Advocacy groups like the Asian American Advancing Justice, FilVetRep, and the Bayanihan Equity Center, among others, have been working hard to preserve the program. This 2020, unless the administration changes its mind about terminating the program, FWVP program will end after USCIS issuance of its final rules.

Increased USCIS Fees

In November 2019, USCIS announced that it will increase fees on petitions and applications. Among the many applications that are going to be affected are (1) Adjustment of Status application, an increase from $1,225 to $2,195; (2) DACA fees will increase from $495 to $765, an overall increase of 55 percent; (3) Naturalization application will increase by 83 percent, raising the fee from $640 to $1,170. Aside from the increase in fees, USCIS is eliminating fee waivers for naturalization, adjustment of status, green card replacements and renewal and employment authorization. The increase will take effect this 2020 and only after USCIS releases its final regulations.

Backlog in Family Petitions

As of November 2019, there are 291,392 approved visa petitions on behalf of Filipino nationals filed by their US citizens or green card holder relatives, awaiting visa availability with the National Visa Center. The backlog is still severe and there is still lengthy wait for visa availability in certain preference petitions. For Filipinos with petitions under the F3 and F4 visa category, the waiting period is more or less 21 years and for those whose petitions are F1 or F2B the waiting period is approximately 11 years. There are bills (RELIEF Act, S.2603 and H.R. 5327) pending before the 116th Congress which if passed will increase visa numbers and eliminate backlogs. Until these bills are passed into law, expect decades of waiting for certain petitions on behalf of Filipino nationals.

H1B Visa

On January 9, 2020, USCIS released its regulations on the registration system for H1B visa petitions. Instead of filing a full petition for a foreign national employee, the U.S. employer must complete a registration process that requires basic information about the H1B employer and the employee being petitioned. USCIS will open registration period from March 1 through March 20, 2020. Only those selected by USCIS lottery system will be able to file H1B petitions to meet the 65,000 cap.

Public Charge

Under the law, a visa applicant will not be allowed to enter the United States if the government believes that they are likely to become public charge or reliant on government assistance. In 2019, the USCIS issued a new definition of public charge rule to include those who receive either cash or non-cash benefits like housing or health care, from the government for more than 12 months during the 3 year period. The implementation of this public charge rule is suspended because of court litigation filed by several States and advocacy groups challenging the legality of the rule. The Supreme Court is expected to rule on this case this 2020. If the public charge rule takes effect, the legal impact will be on low income legal immigrants petitioning their relatives.

Deferred Action on Childhood Arrivals (DACA)

Deferred Action on Childhood Arrivals or DACA program was created in 2012 to grant young immigrants deferred status and employment authorization. In 2017, Trump announced that it was ending DACA. This resulted in several lawsuits filed against the administration challenging the decision to terminate DACA. The case was heard by the Supreme Court in November 2019 and a decision is expected anytime before June 2020. In the meantime, DACA recipients are allowed to renew their DACA status and employment authorization.

REAL ID

Beginning October 1,2020, federal agencies including Department of Homeland Security (DHS) and Transportation Security Administration (TSA) will only accept state issued driver’s licenses that are REAL ID compliant. This means that the state licensing agency must issue REAL IDs to those with valid identification and legal status. Those who are still in unauthorized status may not be issued READ ID compliant driver’s licenses and identification that will allow them to access federal offices or travel domestically through commercial airlines.

H2B Visa

In January 2019, nationals from the Philippines were banned from receiving H2B temporary working visas for one year. As of this writing, there is no update yet from the USCIS if in 2020, the Philippines will be allowed to become beneficiaries of new H2B visas.

These 8 immigration policies are just among the many policies that are anticipated to affect our Filipino immigrant community. The enforcement of immigration law has consistently been the highest priority of the Trump administration resulting in hundreds of thousands of ICE arrest since he took oath as U.S. president. After a decade, we still have not seen a major overhaul and change in immigration law. Hopefully, this 2020 decade, our leaders will finally pass a more humane and sensible immigration reform law; a more compassionate, relevant and rational one that will replace the dysfunctional immigration system we have right now.

(Atty. Lourdes Santos Tancinco, is an immigrant advocate, founder and a principal partner at the Tancinco Law Offices, San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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Deportation of “Millions” of Undocumented Immigrants?: Know Your Rights in Case of ICE Arrest

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President Trump’s tweet on June 17, 2019 that millions of immigrants are going to be deported beginning next week is once again a threat to hundred thousands of Filipino immigrants who are without legal status. While interior enforcement of immigration law has been Trump’s administration priority, mass deportation was not really fully effected perhaps because of lack of ICE resources or some constitutional issues. If indeed ICE is now ready to “remove millions of undocumented immigrants’’, revisiting their rights becomes of utmost importance.

The Immigration Legal Resource Center based in San Francisco CA released the Know Your Rights below which may be asserted if the inescapable ICE visit or arrest takes place.

You have the right to remain silent.
You can assert your fifth amendment right. You can refuse to speak to an ICE agent. Do not answer any questions, especially about your birth place, immigration status or how you entered the United States. Say that you want to remain silent until you speak with a lawyer.

You have the right to demand a warrant before letting anyone into your home.
The ICE agent may not enter your home without a warrant. You do not have to give permission for him to enter. It is okay not to open your door unless the agent shows you the warrant. If the warrant is presented to you, ask the agent to slip it under the door or through the window. Make sure it is signed by a judge with your correct name, address and date of birth.

You have the right to speak to a lawyer and the right to make a phone call.
It is important to have your attorney’s phone number handy. You will be entitled to make a phone call. If you do not know your attorney’s number, call a trusted friend or relative to coordinate with your attorney.

You have the right to refuse to sign anything before you talk to a lawyer.
There will be some documents that will be presented to you for signing after you are apprehended and taken into custody.. Do not sign anything. If you sign without understanding the nature of the document, it is possible that you are signing a waiver of your rights to a lawyer or to a hearing. And if you waive these rights, it may result in your immediate removal without a hearing.

You have the right to refuse to show any documents before speaking with a lawyer.
When you are visited by an ICE agent, you do not have to give permission to search any of your belongings unless there is a warrant. You can ask to speak with a lawyer before you submit any documentation.

Each case of an unauthorized individual is distinct and all non-U.S. citizens must be vigilant about their rights. Considering the threat of a mass apprehension, it is worth exploring legal options with a trusted professional immigration attorney and from there decide on an appropriate course of action to obviate fear of possible removal.

(Atty. Lourdes S. Tancinco is a San Francisco CA based immigration attorney at Tancinco Law Offices and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or at 1 415 397 0808)

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Global Pinoy

Undocumented’s options – depart voluntarily or be detained

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Two weeks ago, Rey Galleon, a Filipino who had been residing in unlawful status for several years, was arrested by ICE and decided to depart “voluntarily” to avoid being incarcerated.

According to Galleon’s public statement, the ICE officers gave him the choice of leaving voluntarily or staying in jail for up to six months. For fear of being detained for six months, he chose to depart.

Will the case of Mr. Galleon be a common occurrence for 300,000 Filipinos who are undocumented?

Mandatory detention

Any person who is in the United States is entitled to due process rights under the U.S. Constitution. This includes anyone who is present in the United States in unlawful status. The constitutional protections of due process and equal protection are not limited to U.S. citizens; they also apply to every person regardless of immigration status.

Generally, this means that the right to legal counsel and to a hearing should be afforded a person. While these rights exist, ICE officers may continue to detain a person while awaiting a court hearing. This happens in particular cases where the law limits the exercise of this right to certain individuals who are subject to mandatory detention and those who are arriving aliens.

The following persons are subject to mandatory detention:

  1. those who have criminal inadmissibility grounds;
  2. those with convictions of multiple crimes of moral turpitude, aggravated felonies and controlled substances among others;
  3. those who are inadmissible based on terrorist activities.

Arriving aliens also may not be granted bond hearing and could remain in custody until removed. The law defines an arriving alien as one who is coming to the United States at a port of entry or are seeking transit through the United States at a port of entry.

Release on bond

If an individual is not subject to mandatory detention or is not an arriving alien, either the ICE sets the bond or the immigration judge decides whether an individual is subject to release on bond. Until the arrested individual is heard, he remains incarcerated unless ICE makes a determination of a release on bond.

Generally, ICE counsel will not object to a release on bond if the individual is not a flight risk and other factors exist to show that the individual will appear on the date set for hearing. There is a lot of discretion on the part of the immigration judge on whether the individual is released on bond. It is also during these times when the detainee decides to just depart instead of staying in jail to await the hearing before the immigration judge.

While those who are in unauthorized presence are lumped into one category as being “undocumented,” each case will be treated differently depending on the circumstances of each case.

Given that the DHS has been given additional resources to enforce immigration law not only against those with criminal convictions, but also anyone who is found to be in unlawful status, it is important for those concerned to make timely informed decisions.

Should they decide to stay, they have to know the risks and prepare themselves to take legal steps when ICE comes knocking at their doors. The risk involves incarceration until released on bond. If they are not willing to take the risk, then the difficult decision to depart voluntarily becomes imminent.

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Global Pinoy

Love of Family Is their Underlying Reason for Staying

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A significant number of Filipino immigrants have thrived and have become productive U.S. citizens or lawful permanent residents. Yet, there are categories of immigrants who, despite having resided in the U.S. for many years could not find ways to obtain legal status. The immigration system is dysfunctional and that there is no pathway to obtaining legal status.

Angela was able to enter the U.S. on an H1B visa but worked only for a year. Her U.S. employer suffered financial setbacks during the recession in 2008 and Angela was laid off from her job. When this happened, she was pregnant. His son who was born in the U.S. with a congenital heart problem that requires regular medical attention. The U.S.citizen father of the child abandoned Angela. She continued to work in the U.S. but only as a caregiver to be able to provide for the support of her child. Angela admits that it was wrong to stay without legal status but her decision to stay was motivated by her desire to ensure her son’s well being. She knows that she will not be able to afford medical treatment in the Philippines. Angela has no history of arrest or any criminal arrest. She takes care of elderly patients. With the new immigration policy, she fears that she will be arrested and be deported. She fears that her son’s health condition will worsen if she is sent back to the Philippines.

Amando is a son of a Filipino World War II veteran. Many Filipino veterans immigrated without family members and lived in isolation. Amando was able to come to the United States on a B2 visa. He took care of his father and was present at his father’s deathbed. Unfortunately, Amando’s B2 visa expired during the time he was taking care of his father. If he returns to the Philippines, it will take more than 10 years before he could return to the United States because of the 3-10 year bar rule. He is taking care now of his aging mother who likewise needs his presence and support just like his late father. Amanda has an approved petition but unfortunately, the visa petition will take more than 15 years for the visa to become available. Amando decided to stay in the United States to care for his mom. With Trump’s policy, Amando is at risk of being arrested and removed.

Angela and Amando are profiles of undocumented immigrants whose future in the United States is uncertain with the current political climate. The Department of Homeland Security stated that they will prioritize for removal those who poses threat to national security and public safety. But the recent DHS rules do not reflect such priority. The 11 million undocumented are at risk of being removed if they are caught by ICE without the proper legal documents to stay. This will include those who have same cases as Angela, and Amando who are neither threat to national security or public safety. Their only intention of continued stay is to be with their families, their U.S. citizen children or parents.

Hopefully, the present administration will desist from stereotyping unauthorized immigrants and look at the lives of these ordinary family-loving people through a different lens.

(Atty. Lourdes S. Tancinco is a partner at Tancinco Law Offices, a San Francisco based law firm and may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Updates

Know Your Rights in Case of ICE Arrest

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Executive Order 13768 of January 25, 2017 Enhancing Public Safety in the Interior of the United States signed a few weeks ago has the effect of practically criminalizing all those who are in unlawful status. As a result, most of the 11 million immigrants in unauthorized stay are fearful about their possible apprehension and removal. Whether or not this fear is real, knowing one’s rights in the event of an Immigration Customs and Enforcement (ICE) raid or visit is important.

Below are the “Know Your Rights” information being disseminated by Immigration Legal Resource Center and other non-profit organizations which may be asserted if the inescapable ICE visit or arrest takes place.

You have the right to remain silent.
You can assert your fifth amendment right. You can refuse to speak to an ICE agent. Do not answer any questions, especially about your birth place, immigration status or how you entered the United States. Say that you want to remain silent until you speak with a lawyer.

You have the right to demand a warrant before letting anyone into your home.
The ICE agent may not enter your home without a warrant. You do not have to give permission for him to enter. It is okay not to open your door unless the agent shows you the warrant. If the warrant is presented to you, ask the agent to slip it under the door or through the window. Make sure it is signed by a judge with your correct name, address and date of birth.

You have the right to speak to a lawyer and the right to make a phone call.
It is important to have your attorney’s phone number handy. You will be entitled to make a phone call. If you do not know your attorney’s number, call a trusted friend or relative to coordinate with your attorney.

You have the right to refuse to sign anything before you talk to a lawyer.
There will be some documents that will be presented to you for signing after you are apprehended and taken into custody.. Do not sign anything. If you sign without understanding the nature of the document, it is possible that you are signing a waiver of your rights to a lawyer or to a hearing. And if you waive these rights, it may result in your immediate removal without a hearing.

You have the right to refuse to show any documents before speaking with a lawyer.
When you are visited by an ICE agent, you do not have to give permission to search any of your belongings unless there is a warrant. You can ask to speak with a lawyer before you submit any documentation.

Each case of an unauthorized individual is distinct and all non-U.S. citizens must be vigilant about their rights. During these challenging times, a legal advice from a professional immigration attorney becomes indispensable to figure out what legal options may still be available.

(Atty. Lourdes S. Tancinco is a San Francisco CA based immigration attorney at Tancinco Law Offices and may be reached at law@tancinco.com, facebook/tancincolaw, or at 1 888 930 0808 or at 1 415 397 0808)