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Immigration and Criminal Law: Answers to Common Questions

Who governs immigration to the United States?

Immigration to the United States is governed exclusively by federal law, most notably the Immigration and Nationality Act or “INA”. The INA is implemented by a number of federal agencies. The most prominent of these is the Department of Homeland Security (“DHS”), which houses U.S. Citizenship and Immigration Services (“USCIS”), Immigration and Customs Enforcement (“ICE”), and Customs and Border Protection (“CBP”). These three sub-agencies are responsible for the enforcement of immigration law as well as making decisions on applications for immigration benefits. However, a number of other federal agencies play a role in implementing U.S. immigration law, including the Department of Justice, the Department of State, the Department of Health and Human Services, and the Department of Labor.

What should I do in the event of a raid or immigration arrest?

Most constitutional protections apply to all immigrants, whether or not they have permission to be in the United States. This includes Fourth Amendment protections against unlawful searches and seizures. If immigration officials are requesting entry into your house, verify that they have a valid warrant signed by a judge. If you are stopped by immigration officials at work, be sure to ask them if are under arrest or if you are free to leave. You always have the right to remain silent until you are able to speak with an attorney. 

For immigrants who fear that they could be subject to deportation through a raid or immigration arrest, it is extremely important to have a plan in place ahead of time. Make copies of important documents and keep them in a safe place. Talk with your friends and relatives. Make sure you know how to get in touch, and that you have a plan for managing childcare and personal property in your absence.

Do local police and ICE have the same authority?

No. Although both local police and ICE officers fall within the broader category of law enforcement officials, state and local police officers are not responsible for enforcing most aspects of federal immigration law, apart from certain criminal provisions. However, each law enforcement agency has its own policies and procedures for how they interact with individuals whose immigration status is in question. They also have their own rules about how much they will with federal agencies charged with enforcing immigration law. For that reason, it is critical that you consult with a criminal and/or immigration lawyer as soon as possible if you are arrested by any law enforcement agency.

I don’t have lawful immigration status. Should I avoid reporting crimes to the police, or assisting in police investigations?

No. The ultimate objective of state and local law enforcement agencies is to protect and serve the entire community. No matter your immigration status, if you are a victim of crime or have information about a crime, do not be afraid to speak out. Additionally,, if you are the direct or indirect victim a particularly serious crime, you may be eligible for a form of humanitarian relief known as a U visa, which is reserved for some victims of U.S. crimes who have reported those crimes to police. You must assist with the investigation and comply with reasonable requests from law enforcement in order to proceed with a U visa. As there are other requirements to this benefit, it is very important that you see an immigration attorney knowledgeable in this field. 

Is it a crime to enter the United States without permission?

Individuals who entered the U.S. without permission, or who have violated the terms of their lawful immigration status in the United States, are technically subject to federal criminal charges if detained and, eventually, vulnerable to deportation to their home countries. See 8 USC Section 1325, Improper Entry. Whether they will actually be prosecuted, removed from the United States, or even detained in the first place depends both on current immigration enforcement priorities and whether they are eligible for some form of immigration relief. 

Is immigration court the same as criminal court?

No. Immigration courts are special courts that exist within the Department of Justice. Unlike criminal courts, which are part of the judicial branch of government, immigration courts are part of the executive branch. The fundamental responsibility of immigration courts is to evaluate the cases of individuals in deportation proceedings to determine if they should be sent back to their home country, or if they are in fact eligible for some form of immigration benefit. Immigration court proceedings have their own rules and substantive body of law. These rules and laws are different from criminal law, but do take into account the severity of any criminal convictions. If you find yourself summoned to appear before an immigration court, it is critical that you find a lawyer with expertise in immigration law.

Can I represent myself at immigration court?

Yes, you may represent yourself at immigration court. Since court decisions are often irreversible, and immigration cases can be quite complicated, it’s always a good idea to speak with an immigration attorney beforehand about your case and how best to proceed.

Do I have the right to an attorney in immigration court?

Yes. However, unlike criminal court, the government is not obligated to provide you with an attorney if you cannot afford one.