Know your rights: How to navigate an ICE encounter

Federal immigration enforcement activity is escalating across the U.S., including in Seattle.

The Seattle Police Department said it responded to reports of armed, masked Immigration and Customs Enforcement agents arresting three men on Jan. 7 in North Seattle.

That incident came a day after an ICE agent shot and killed 37-year-old Renee Good in Minneapolis — and the same day that U.S. Border Patrol agents shot two people in Portland.

Washington state Democrats have largely condemned recent ICE activity. Seattle Mayor Katie Wilson has encouraged people to sign up for ICE mobilization alerts, which are coordinated by the Washington Indivisible Network, a coalition of progressive grassroots advocacy organizations.. In his State of the State address Tuesday, Gov. Bob Ferguson called the conduct “horrific” and “unjust,” saying “it needs to stop now.”

Ferguson also expressed support for a new bill in the state legislature that would prohibit local, state, and federal law enforcement officers from wearing masks while interacting with the public, unless they’re participating in an undercover or SWAT operation.

In the meantime, there’s a lot of confusion about what rights people have when encountering immigration officials. KUOW’s Seattle Now spoke with Henry Hwang, directing attorney at the Northwest Immigrant Rights Project, to clear some of that up.

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When do federal agents have the right to carry out immigration enforcement?

ICE can make an arrest if there’s probable cause of an immigration violation, Hwang said.

That means ICE either has to have a warrant — which means they already know the identity of the person and know the immigration law they’re accused of violating. Or, if ICE is out on the streets, they have to have probable cause that someone has violated the law to make an arrest.

Is being non-white or having an accent enough for ICE to stop you?

That’s a tough question, Hwang said.

In a temporary ruling in September, the Supreme Court cleared the way for ICE to use race and other profiling factors when they’re deciding to detain or interrogate someone. That case is still pending. But, Hwang said, ICE seems to be “emboldened” and testing legal boundaries lately.

“We’re seeing all the time that they are arresting people and claiming, after the fact, certain facts that just don’t comport with reality — they’re not consistent with eyewitness accounts or video evidence that we’re seeing,” he said.

“I think ICE will continue to do this until enough people push back.”

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When can an ICE agent pull you over?

It’s somewhat similar to when a police officer pulls someone over, Hwang said. ICE has to have what’s called reasonable suspicion.

“That’s sort of a legal term of art,” Hwang said. “It basically means that they have to be able to specify articulable facts that reasonably suspect a person of an immigration violation. That’s the standard right now.”

But again, Hwang warned that these boundaries have been blurred recently.

“They are seemingly just racial profiling somebody who seems brown or a shade darker,” he said.

What should you do if ICE pulls you over?

Safety first.

Just like when you’re pulled over by police, Hwang said, pull over to a safe location when it’s safe to do so.

Then, Hwang said, make sure you have three things ready: Your driver’s license, registration, and proof of insurance.

Apart from giving the agent those documents, “Keep your hands on the steering wheel or in a place where they can see,” Hwang said. Don’t “give a reason for the ICE officer to fear for their own safety.”

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Beyond that, Hwang’s advice differs depending on your immigration status.

If you’re undocumented, remain silent, except to ask, “Am I free to go?” If the officer says no, Hwang said to remain silent except to say that you would like to speak to a lawyer.

If you are a citizen or have legal status, Hwang said you may want to show proof, such as a passport, or tell them you’re a citizen and ask if you are free to go.

What should you say if ICE asks where you were born?

Whether ICE or some other law enforcement officer asks you that question, don’t answer it, Hwang said.

He recommends using the same question: “Am I free to go?”

If the officer says no, and you’re undocumented, Hwang said your best bet is to, once again, remain silent and ask to speak with a lawyer.

“ICE needs probable cause to arrest you, and if they don’t know who you are, the only way that they can get that probable cause to arrest you is through things that you say to them,” Hwang said. “That’s why they’re asking you these questions. That’s why they’re going to keep badgering you — to give them enough information that allows them to arrest you.”

What shouldn’t you do?

Don’t try to run away or flee the situation, Hwang said.

In addition, don’t lie to an officer or show any false documents.

“If you do any of these things, then that might give them sort of probable cause to be able to then detain you and arrest you,” Hwang said.

Should you film ICE agents?

Hwang says yes — in fact, bystanders play a more critical role than ever in this moment.

“Having video, graphic evidence of what ICE is actually doing is incredibly important,” he said. “Not just for the person who’s subject to this enforcement … but really to hold ICE accountable — to try to change their actions and show them that they can’t keep pushing the line [and] that what they are doing is improper and illegal.”

Although ICE agents can certainly tell people to stop filming, you don’t have to stop.

“Courts have long recognized the right to record law enforcement carrying out their duties in public spaces,” Hwang said. “We do this because we have to be able to hold officials accountable for their actions.”

But at the same time, Hwang said, use your best judgment.

Before recording, he recommended asking yourself: Will recording escalate the situation? Are you in a safe position? Is the person interacting with ICE in a safer position with you recording?

What should you do with ICE footage?

One thing Hwang asks is that people don’t live stream or post to social media without permission from the detainee.

“There are immigrants and people in our country who come here fleeing persecution, and they may have good reasons to not want their face publicized or their names out there — because they fear harm or some retribution,” he said.

Instead, Hwang recommends sharing any videos or other evidence with a family member of the person, if you know them, or contacting local legal or nonprofit organizations that work with immigrants.

To listen to the full story from Seattle Now, tap the link above.