There are three agencies that comprise the Department of Homeland Security (DHS): U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS).
You may have dealt with one or more of these agencies as an immigrant, an employer, a family member, or an educator. Your experience may have been uneventful, but the National Immigration Law Center (NILC) has drawn attention to some aggressive tactics the agencies have used to force cooperation with federal immigration enforcement.
In September 2020, NILC released a useful fact sheet to help individuals faced with a warrant or a subpoena to understand the difference between the two and how to respond when confronted with such documents.
Powers of ICE, CBP, and USCIS
Both ICE and CBP have the authority to enforce immigration law, while USCIS does not. ICE operates inside the country, while CBP operates at the borders of the U.S. USCIS meanwhile deals with making decisions abut immigration status petitions. Basically, USCIS says who can and cannot enter the U.S. based on immigration law, whereas ICE and CBP enforce that law by preventing from entering or removing individuals deemed not eligible to be present in the U.S.
Fourth Amendment Limitation on Enforcement
But that enforcement power is not unlimited. The Fourth Amendment of the U.S. Constitution states that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This means that government cannot intrude upon an individual’s reasonable expectation of privacy without proper authorization. Further, that authorization, which comes in the form of a warrant or a subpoena, must conform to certain standards.
But first, we must learn the difference between a warrant and a subpoena.
Warrant Versus Subpoena
The distinction between these two concepts is complicated a bit by the fact that there are two distinct sets of such authorizations. We must first differentiate judicial warrants and subpoenas from immigration warrants and subpoenas.
- Judicial warrants and subpoenas – issued by a state or federal court and signed by a state or federal judge.
- Immigration warrants and subpoenas – issued by federal agencies (ICE, CBP, USCIS) and signed by an immigration judge or immigration officer.
- Warrant (in general) – allows search, seizure, or arrest to be made by the officer.
- Subpoena (in general) – asks person to appear in court to testify as a witness or produce evidence (papers, forms, materials, information, etc.)
|Issued By||Signed By||Purpose||Make sure the document:||
|Judicial Warrant||State or federal court||State or federal judge||
Authorize law enforcement officer to make an arrest, seizure, or search of private space (home)
|States the address to be searched – make sure this is your address.
Presented on or before date specified on document. An out-of-date warrant is INVALID.
|Mandatory (serious consequences for non-compliance with valid judicial warrant)|
|Immigration judge or officer||Authorize federal law enforcement officer to make an arrest or seizure.
NOTE: Search of and/or entry into your home is NOT authorized!
|Contains the DHS seal, label, or form number (ex. “Form I-200 Warrant for Arrest”)
Signed by an immigration judge or officer
|Required for an arrest or seizure.
But since search is not authorized, not required to consent to entry and/or search of your home.
|Judicial Subpoena||State or federal court||Clerk of the court or judicial officer||Require person to testify as a witness in an investigation or produce documents, papers, or other evidence||States the address of the person subpoena is directed to – make sure this matches your name and address||Mandatory (cannot ignore or resist valid judicial subpoena without serious consequences)|
|Immigration judge or officer||Compel person to testify as a witness in an investigation or produce evidence||Contains mention of DHS, a form number, and/or reference to immigration||Not required, unless issuing party attempts to enforce the subpoena via U.S. district court|
As you can see from the chart above summarizing the differences between judicial warrants and subpoenas versus immigration warrants and subpoenas, it is clear that judicial warrants and subpoenas carry much more weight and require compliance if the document is valid.
This is not to say that immigration warrants and subpoenas are to be ignored or not taken seriously, but to highlight the fact that such documents may not require immediate compliance. This allows individuals presented with such documents time to consult an attorney, the sooner the better, and figure out the best path forward without being coerced into an action not authorized by the document out of fear.
How to Respond to a Warrant or Subpoena
It may be unsettling to be approached by a law enforcement officer and presented with an official document. Some individuals may comply without reading the document out of fear or intimidation.
It is important to know that you have the right to read the document before taking any action requested.
Below are some vital steps to take before you act upon a warrant or subpoena.
NOTE: If you are in your home, do not open your door. This may be construed as consent to enter and search your property. Ask the officer to slide the document under the door, through a mail slot, or hold it up to a window for you to inspect.
- Inspect the document and determine whether it is a warrant (authorizing arrest, seizure, or search) or a subpoena (requesting appearance as witness or production of evidence).
- Next, inspect the document to determine whether it is a judicial or immigration document. REMEMBER: An immigration subpoena is not enforceable on its own and an immigration warrant does not authorize search.
- Make sure the document is valid. Check the date on the warrant and if the warrant is out-of-date, it is no longer valid, and you are not required to comply. Check that the address on the warrant matches your address and pertains specifically to you.
- Confirm what the warrant authorizes the officers to do. If it is a judicial warrant for a search (in which case you must comply), it must state what specific area(s) of your property are to be searched. This is the “scope” of the warrant and officers cannot go beyond that scope unless they have “probable cause” to believe that evidence of unlawful activity will be found by searching a place or person outside the scope of the warrant.
- You have the right to remain silent and not say anything that you believe can be used against you. The Fifth Amendment provides you the right to remain silent and refuse to speak to an immigration officer when presented with a warrant or subpoena.
- Contact an attorney right away. Do not sign anything or say anything without speaking to an attorney first. Unless it is a valid judicial warrant or subpoena, which are enforceable, you have the right to refuse to cooperate.
Subpoena Enforcement Action
An immigration subpoena is not enforceable on its own. Meaning that if you have confirmed that you’ve been presented with an immigration subpoena issued by DHS, you may refuse to comply. But keep in mind, that whoever issued the immigration subpoena can seek an order from the U.S. district court compelling you to comply with that subpoena. This is called a subpoena enforcement action.
If such an order is granted, that immigration subpoena becomes enforceable, meaning you are required to comply with it. Failure to comply at this point may result in being held in contempt of court subject to punishment.
The need to stay vigilant and be careful when interacting with immigration officials doesn’t stop at non-citizens themselves. Employers, educators, hospitals, and other community members must be aware of their part in helping to avoid coerced compliance with unenforceable agency documents.
For example, if a school is requested to provide information and documents on a particular student via an immigration subpoena, not only is compliance not required but there may be other overarching federal privacy laws that prevent such disclosures from being made. One such law is Family educational Rights and Privacy Act (FERPA) which protects a student’s educational records.
Examples of Warrants and Subpoenas
Refer to the NILC fact sheet “Warrants and Subpoenas: What to Look for and How to Respond” for more details as well as examples of both types of documents. It is vital to know the difference between the two, be familiar with how such documents look, and understand whether your cooperation is mandatory.
If you are ever confronted with such documents, seek the help of a skilled immigration attorney who can help you determine the best course of action while protecting your rights and complying with the law.
Shihab Burke, LLC, Attorneys At Law Can Help
If you are an immigrant with any questions or concerns regarding your immigration case, H-1B visas, green card applications, or any other legal matter, speak at once to an experienced Columbus immigration attorney. A good immigration lawyer can help you and your family with any immigration issues you face and defend you if you’re accused of violating immigration law.
Our immigration attorneys will review your forms and applications for thoroughness and accuracy. Immigration laws will continually change, but an experienced immigration attorney will always be able to give you the most up-to-date immigration advice you need.
Contact us today!