What Are Workers' Rights When ICE Approaches, and How Should They Invoke Them?

Attorney Answer

Workers may ask whether they are free to leave, and may decline to answer questions about where they were born or their immigration history. A suggested script: 'I wish to remain silent. I want to speak with a lawyer. Am I free to leave?' and, if asked to be searched, 'I do not consent to a search.'

The law behind the script: officers may approach and question anyone without suspicion, but 'a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure' (Florida v. Bostick; Florida v. Royer, plurality). The Tenth Circuit, whose law binds federal courts in Utah, says the same: 'refusal to answer law enforcement questions cannot form the basis of reasonable suspicion' (United States v. Frazier; United States v. Davis). Apparent Mexican ancestry alone does not justify a stop (Brignoni-Ponce). Officers need not tell anyone they may refuse (Drayton), which is why a card matters. The Supreme Court upheld INS factory-survey questioning in INS v. Delgado, but only because workers had 'no reason to believe that they would be detained if they gave truthful answers ... or if they simply refused to answer'; ICE will rely on Delgado, so the protective value is that a refusal is not itself grounds to hold someone.

Three cautions belong in every handout. First, do not run: unprovoked flight can create reasonable suspicion (Illinois v. Wardlow). Second, identification: Hiibel supports only a duty to state one's name during a lawful stop under a state stop-and-identify law, and expressly 'does not require a suspect to give the officer a driver's license or any other document'; the separate federal duty for noncitizens 18 and over is to carry the registration document issued to them (8 U.S.C. § 1304(e)). Whether a worker must give a name therefore depends on the state's own stop-and-identify law; Nevada's is the statute the Supreme Court upheld in Hiibel. Third, silence is not cost-free in immigration court: the Supreme Court has noted that nothing 'forbids drawing an adverse inference from the fact of standing mute' in a civil removal case (INS v. Lopez-Mendoza). Silence protects against criminal self-incrimination and prevents an admission; it does not stop a case.

In removal proceedings the person has the right to counsel 'at no expense to the Government' (8 U.S.C. § 1362); there is no appointed lawyer, but the first hearing may not be scheduled earlier than 10 days after service of the charging document and the government must maintain pro bono lists (8 U.S.C. § 1229(b)). Never give false information, never present false documents, and never sign immigration papers without advice.