WASHINGTON

Immigration policies

Know your rights if ICE agents stop you

Mike Davis

Asbury Park (N.J.) Press

Thousands flock to A Day without Immigrants rally Feb/ 16, 2017, at Town Square in Lakewood, N.J.

FREEHOLD, N.J. — It happened to a Olympic bronze medalist from New Jersey; a retired North Carolina police chief; and Muhammad Ali Jr., son of the legendary boxer.

All were detained and questioned about their citizenship at airports in the two months since President Trump took office. And all are U.S. citizens.

It happened to a group of Latina millennials sitting at a diner in California when a waiter requested their proof of residency. The patrons were citizens, too.

And it happened on a domestic flight from San Francisco to New York City when Customs and Border Protection agents demanded to see passengers' identification before disembarking.

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U.S. citizens who may look foreign-born to immigration agents have been “asked for their papers” in an increasing variety of ways from an increasing variety of people.

While such demands may have been heightened in recent months, the request is not uncommon. Citizens were illegally detained in prior years.

More than 1,500 U.S. citizens were wrongly held in local jails or detention centers at the request of immigration officials between 2007 and 2015, according to a 2016 National Public Radio analysis of detainer requests. Immigration and Customs Enforcement officers are prohibited from detaining U.S. citizens.

So what should you do if immigration officers or police deputized to enforce immigration law confront you?

The response is not one size fits all, said Professor Joanne Gottesman of Rutgers University Law School.

“If you’re a citizen, ICE has no reason to detain you,” said Gottesman, director of the university’s Immigrant Justice Clinic. “Most of us don’t carry any proof of our citizenship. We don’t walk around with our passports.”

U.S. citizens always should tell immigration authorities they're citizens, she said. While citizens can't be detained, a person can be detained if citizenship can't be immediately proved with a passport, voter ID card, birth certificate or other documentation.

“If you are denying a charge of alienage, the burden is on you to prove you’re not an alien,” said immigration lawyer John Leschak of Freehold, N.J.

But problems for citizens can still arise:

• In California, a Los Angeles man was put into detention for months after police officers mistakenly wrote that he was born in Mexico, according to a civil lawsuit.

• In Colorado, a man alleged in a lawsuit that ICE agents wrongly detained him after an agent said he "didn't look like (he) was born" there. ICE officials insisted the man told them he lacked legal status, ccording to news reports.

• In New York, a naturalized citizen was put into deportation proceedings after serving a prison sentence on drug charges. In news accounts, he said ICE officers never thoroughly investigated his proof of citizenship, obtained when his parents naturalized from Jamaica.

• In Texas, a man leaving jail on a drunken driving charge said he was born in Mexico but became a naturalized U.S. citizen. He was then held on an ICE detainer while agents investigated.

The new enforcement measures are blurring the lines between lawfully detaining immigrants and unlawfully detaining citizens and legal residents.

Lawyers and activists generally advise anyone without citizenship but legal residence in the United States to carry supporting documents on them and produce them if asked.

“If you’re a legal resident in the country, carry those documents. It could be a problem if you don’t," Leschak said. “But if you’re not legal? There’s no useful purpose to carrying identification documents because they can be used against you.”

In an email, ICE spokesman Khaalid Walls said the agency reviewed 1,101 claims to U.S. citizenship during fiscal year 2016. "While undergoing further examination," 169 people were released.

Protesters pray March 9, 2017, in front of the Immigration and Customs Enforcement office in Manhattan during a Solidarity Rally Against Deportation.

"Analyzing U.S. citizenship for individuals born abroad can often be very complex, relying on the individual’s reporting of their birth and immigration history, residency history, immigration status, marital status of one's parents, and the ever-changing body of law that was in place at the time of one's birth," Walls said.

Only an immigration judge, not Immigration and Customs Enforcement, can determine someone's citizenship, he said. In some cases, people have been deported and only made claims of citizenship after returning to the United States.

In recent years, the agency has updated its detainer form to include a 24-hour multi-lingual hot line for those who believe they've been wrongfully detained, including those with claims of citizenship.

Within the bustling immigrant community of Freehold, where about 12,000 people live 35 miles southwest of New York City and almost a third of residents are foreign born, those without legal status are spending as little time in public as possible for fear of being deported. Even some with legal status worry about being profiled as otherwise.

“I see innocent children qualified for things, but people are dropping out of (government) services because of the fear that Trump has put in them,” said Rita Dentino, director of immigrant resource center Casa Freehold.

The American Civil Liberties Union offers this advice for anyone — citizen or not — if authorities stop them:

• Ask to leave. If immigration authorities don’t have a warrant or suspect a crime has taken place, you cannot be detained.
• Remain silent, except to ask for a lawyer. Unlike U.S. citizens, immigrants don’t have the right to a public defender but can ask for a listing of legal services.
• Don’t sign anything. Immigrants could end up waiving their right to a deportation hearing.
• Don't lie. Don't present fake documents or lie about citizenship status.

The calls to Leschak's office often come from panicked family members whose loved one contacted them from a detention center in Newark or Mount Holly, N.J.

The story generally follows a pattern, he said:

1. An immigration officer stops someone.

2. The person gives his or her name and frantically presents a bunch of documents, many times including a foreign passport.

3. The person answers questions.

4. The person willingly signs papers, regardless of whether those papers written in a language that the detainee can understand.

5. The immigrant without legal status is whisked away within 5 minutes.

"You should always exercise your rights," Leschak said. "People start answering all these different questions. You don’t have to.

"People feel like they’re doing something wrong, and that comes from the inherent nature of that relationship with law enforcement," he said.

Trump has pledged to hire 10,000 more ICE agents, who go through a 16-week basic-training program including a five-week Spanish course.

Last year, ICE agents entered an apartment in Freehold and arrested a 25-year-old allegedly without legal status. The woman who answered the door was detained but released after showing her residency documents.

That raid and Trump's inauguration have led many immigrants within the borough to "do whatever they have to do in a minimal way,” Casa Freehold's Dentino said.

“They’re not on the streets," she said. "They’re going to work and going home."

Businesses that stay open late to cater to immigrant workers — eager for a haircut or a late dinner after work — are now quiet.

Some parents have begun obtaining dual citizenship for their children born in the United States. Even though their kids are U.S. citizens, they want to be prepared in case the family must return to the parents' home country.

“We’ve got a waiting list a mile long,” Dentino said. “They’re afraid that, if anything happens and they have to go back, they’d be in really big trouble if their children didn’t have that double citizenship.”

The immigration stops are never entirely random, Leschak said.

Usually an outstanding warrant or a history of legal transgressions, often driving-under-the-influence charges, form the basis of them. Leschak has yet to hear clients tell of ICE stops that weren’t the result of a targeted effort to look for someone.

“We are not seeing random stops,” he said.

That could change, Leschak said. Included in Trump’s executive orders is expansion of “expedited removal,” a tool that the agency has used to fast track the deportation of those without legal status.

Expedited removal traditionally has been enforced within 100 miles of the border. Trump has called for it to be used nationwide.

Leschak has begun telling his clients to collect two years’ worth of documents such as rental agreements to prove their residence because Trump's order focuses only on recent immigrants.

Trump also has called for the dissolution of “enforcement priorities,” in which specific groups of immigrants such as alleged criminals and recent border-crossers are targeted for deportation. Previous administrations would focus more resources on an immigrant with drunk-driving charges than on a single mother with children who has not run afoul of the law, Leschak said.

But that net now has been widened, he said. His firm recently took on a client deemed a priority for enforcement because of traffic violations on his record. Another was deemed a priority for deportation because of a criminal charge that already had been dismissed.

“We’re seeing people taken into custody who previously would not have been," Leschak said. "Virtually everyone is now a deportation priority — which means, in a way, that no one is a priority."

Follow Mike Davis on Twitter: @byMikeDavis

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