What immigration lawyers want you to know about ICE and criminal warrants

By Zoe Sottile, CNN

(CNN) — As the Trump administration has continued its monthslong immigration enforcement blitz, its tactics – including large-scale workplace raids and the use of masked officers – have sparked condemnation from advocates and civil rights groups.

Amid the ongoing campaign to deport tens of thousands of immigrants, “Know Your Rights” trainings and programs have proliferated, with small fliers popping up on the doors of businesses around the country.

“ICE and Homeland Security cannot enter without a warrant signed by a judge,” read some of the fliers, reflecting a growing movement to educate the public about their rights as immigration authorities have taken increasingly aggressive tactics during President Donald Trump’s second term.

The warrant guidance largely stems from the Fourth Amendment, which protects people – citizens and noncitizens alike – from “unreasonable searches and seizures.”

The amendment “ensures everyone’s privacy is protected, regardless of immigration status,” said Ana Valenzuela, senior attorney at Minsky McCormick & Hallagan, P.C., a Chicago-based immigration law firm.

“Law enforcement does not have the right to just enter” a home or a private business unless they have a warrant signed by a judge, Valenzuela told CNN.

CNN talked with immigration lawyers about the different kinds of warrants – and what an ICE agent needs to enter a person’s home or business.

What is an administrative warrant?

The administrative warrants ICE may serve while making civil immigration arrests are distinct from the criminal warrants local and federal police typically use, immigration lawyers told CNN.

The administrative warrant typically used by ICE, a “Warrant for Alien Arrest,” is a civil document typically issued by the Department of Homeland Security. It usually lists the person the agency is trying to find, according to Valenzuela, and may include the person’s picture. This type of warrant can be used to arrest a person in public, she said.

Administrative warrants are signed by authorized ICE officers – not judges, according to Maureen Sweeney, a professor at the University of Maryland Francis King Carey School of Law who specializes in immigration law.

They don’t require the same evidence as a judicial warrant, Sweeney said.

And an administrative warrant doesn’t allow an ICE officer to enter a person’s home or a private business without consent, Charles Kuck, an Atlanta-based immigration lawyer, said.

“If ICE knocks on the door and says, ‘We want to come in,’ you should ask for a judicial warrant,” Kuck explained.

They’re also not enforceable, according to Kuck. That means, for instance, that if an immigration officer uses an administrative warrant to request work documents from an employer, the company doesn’t have to comply, he said.

Valenzuela added during trainings, she emphasizes that people should not open the door to their home or private business to immigration authorities.

“If they even crack the door open to obtain and review the warrant, that cracking of the door is enough to give them consent to enter,” she said.

What is a criminal warrant?

A criminal or judicial warrant, which can allow law enforcement to search a specific location without consent, requires “probable cause that you have committed a crime,” John Gihon, a former ICE attorney and current co-chair of the American Immigration Lawyers Association’s national ICE committee, told CNN. A law enforcement officer must provide sworn testimony to a judge, who then signs the warrant.

And the warrant has to be “very specific in terms of the exact location that they intend to search,” according to Valenzuela – down to the precise apartment number. A criminal search warrant is also only valid for a specific time period.

Being an undocumented immigrant is a civil offense, not a crime. But immigration authorities may still obtain criminal warrants in some cases, like during large-scale workplace raids, including the recent operation at a Hyundai megaplant in Georgia, according to Kuck.

“For example, intentionally hiring individuals to work that don’t have work authorization, that can be a crime,” Kuck said – allowing authorities to obtain a criminal warrant to search a property.

For the Hyundai raid, authorities had obtained a search warrant that named four specific individuals. But in total, 475 people, mostly Korean nationals, were arrested, suspected of living and working in the US illegally. The mass arrest marks the largest sweep yet in the crackdown at US worksites.

Valenzuela described this as “collateral detention” – when immigration authorities target specific people, but end up arresting others as well.

Does ICE need a warrant to arrest you?

But, according to immigration lawyers, ICE can make warrantless arrests. There are two main exceptions through the Immigration and Nationality Act, according to Gihon: If officers have personally witnessed someone violating immigration law, or if there’s reason to believe the person is removable and they may flee before a warrant can be obtained.

“That’s the exception that they almost always use when doing a warrantless arrest – by virtue of being in the country in violation of your status, you’re a flight risk,” he said.

And in practice, officers have needed little pretext to make arrests. Just matching with a photo in an ICE database can lead to an arrest, according to Gihon.

The approach has caused controversy and incurred accusations of racial profiling. In Southern California, a judge said DHS was arresting people without probable cause and ordered the Trump administration to stop detaining people based solely on race, spoken language or occupation. But the Supreme Court ruled Tuesday that the “roving” patrols of ICE officers could continue.

ICE says on its website that the agency doesn’t need judicial warrants to make arrests. “Like all other law enforcement officers, ICE officers and agents can initiate consensual encounters and speak with people, briefly detain aliens when they have reasonable suspicion that the aliens are illegally present in the United States, and arrest people they believe are illegal aliens,” reads the website.

Kuck urged people to stay calm and quiet if approached by immigration officers. A person disclosing their immigration status can later be used against them during deportation proceedings, he said.

But even if someone refuses to speak to immigration officers, they can still be arrested, he said.

‘Know Your Rights’

Amidst the ongoing deportation campaign, “Know Your Rights” trainings and programs have spread.

In Chicago, where a federal immigration operation is imminent, public school teachers and union members distributed “Defend Your Rights” flyers to parents and students Friday afternoon outside a west side elementary school.

The union said the goal of the flyering is to inform school families in Latino and Black neighborhoods of their legal rights as the city prepares for the possible deployment of National Guard troops and ICE agents.

“We have so many Black and brown students here, we’ve gotten an influx within the last two years of migrant students, so we want to protect our students,” first grade teacher Latina King told CNN.

Sweeney emphasized when speaking to law enforcement, people always have the right to walk away, unless they’re being detained.

“The advice is always that if you’re approached by an officer who asks you a question, you should respond with a question of your own: ‘Officer, am I being detained?’” she said.

“If the officer refuses to answer, you should repeat the question, because they have an obligation to answer that question and to let you know whether you’re being detained,” she went on.

Gihon, meanwhile, said as the administration pushes to overturn long-standing norms in immigration enforcement, making brazen public arrests and going after immigrants with no criminal background, it’s harder than ever for immigration lawyers to provide universal advice.

“It’s tough because you could give absolutely perfect advice and it could be totally wrong based upon a change in policy or how the courts are enforcing things, unfortunately,” he said.

“It’s hard to try to predict the unpredictable.”

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CNN’s Bill Kirkos and Chelsea Bailey contributed to this report.