By Attorneys Rafael Torres & Nancy E. Miller
News has broken recently that Immigration and Customs Enforcement (“ICE”) is preparing to launch a new set of nationwide raid operations in conjunction with the statement of Secretary Jeh C. Johnson of the Department of Homeland Security (“DHS”) issued in early January of this year. This means that DHS is preparing to affirmatively go after people in certain categories and take them into custody. Those who have not ever been in Removal Proceedings will find themselves in Immigration Court where the lawyers from DHS will attempt to persuade the Immigration Judge to order them removed. Those with existing Removal Orders will face execution of those orders – meaning that DHS will take the necessary steps to remove them from the United States.
Secretary Johnson and other authorities from the DHS have repeatedly emphasized that the raid operations will focus on enforcing removal against individuals in the highest priority categories outlined in the DHS’ November 20, 2014. And who are the people in the highest priority categories? They include all persons present in the United States without lawful presence who pose a danger to national security based on terrorism, espionage, and/or criminal street gang activity; those who have been convicted of a felony or significant misdemeanor; those who entered the United States unlawfully after January 1, 2014; those who are apprehended at or near the border of the United States (because the assumption is that they are recent arrivals); and those who have been issued a final order of removal on or after January 1, 2014 and do not have a pending appeal in their case.
One need not be convicted of terrorism, espionage or gang activity to be a priority. DHS suspicion will be enough. Additionally, DHS has its own definition of a significant misdemeanor and their definition may include crimes that the one suffering the conviction may not consider significant. Moreover, an individual with a removal order issued many years ago but whose final appeal was dismissed after January 1, 2014 is a priority. As is obvious from the short description above, the specified categories include “terms of art” meaning words that are interpreted within an immigration law context rather than as ordinarily used.
However, even for one included in these categories, hope is not lost. Options may be available that would allow the person to remain in the United States and obtain lawful status. It may be possible to fight against the DHS assertion that the individual is removable. Even one who is removable may be eligible for a waiver. Post-conviction relief may be available for one convicted of a crime. And relief that was not available at the time the removal order was issued may be available today if one can get their case reopened.
Reeves Miller Zhang & Diza believes that it is critically important for our community to understand the extent of the rights available to any undocumented person within the borders of the United States. For over 100 years, the United States Supreme Court has ruled that the Constitution of the United States applies to all persons within the borders of the country, even if the person is present in the United States unlawfully. In general, undocumented persons enjoy constitutional protections of their freedom of speech, equal protection of the laws, their right to due process, their right to an attorney, as well as protection against unlawful search and seizure and against self-incrimination. These are just some of the constitutional protections available to undocumented persons.
The right to due process, protection against unlawful search and seizure, and protection against self-incrimination are extremely important before, during, and after an ICE raid operation. But the best time to determine one’s rights and explore options is before becoming the subject of an ICE raid. One who is a priority for removal needs to know what the law requires of them and what their rights are when ICE comes knocking at the door. Are they obligated to open the door? Is the answer the same whether the officer has a warrant or does not have a warrant? Is the person being questioned required to speak to the officer? Does the right against self-incrimination apply? Are there times when it does not apply? What about the right to an attorney? Does it apply in this situation?
Since DHS has already announced their intention to launch a new set of raids, now is a good time to consult an experienced and knowledgeable immigration lawyer to discuss your risks, possible relief, rights and obligations. Your ability to remain in the United States quite literally may rely on it.
