INDIVIDUAL’S RIGHTS WHEN DEALING WITH DHS
Transgender people frequently report that they are disproportionately stopped on the street by police.1 It is extremely important for transgender individuals to not only be aware of their rights when dealing with the police, but also to feel empowered to navigate a dangerous situation as safely as possible. Because police do sometimes unfairly target and harass individuals and retaliate when individuals stand up for themselves, it is important that you make careful and personalized decisions about what to say to the police or ICE officers, and how to say it. Particularly when refusing to provide officers with information, being polite and respectful at all times can help to de-escalate interactions with the police, even when the police are not being respectful to you.
It is important that people assert their rights when dealing with DHS. Failing to demand one's rights or signing papers waiving those rights may lead to deportation before the individual is able to see a lawyer or an immigration judge. Individuals should never sign anything without reading, understanding and knowing the consequences of signing it. Individuals should speak with a lawyer and, if possible, even carry the name and phone number of an immigration lawyer. DHS will not explain the different options available to an individual.
Based on today’s laws, regulations, and DHS guidelines, non-citizens usually have the rights enumerated below, no matter what their immigration status. The following information may change, so it is important to contact a lawyer. The rights below apply to non-citizens who are inside the United States. Non-citizens at the border who are trying to enter the U.S. do not have the same rights. A non-citizen inside the U.S. has the right to call a lawyer or family if detained, and has the right to be visited by a lawyer in detention. A detainee has the right to have an attorney at any hearing before an immigration judge, but does not have the right to a government-appointed attorney for immigration proceedings. If the individual has been arrested, immigration officials must provide a list of free or low cost legal service providers.
Non-citizens are legally obligated to carry their green card or other immigration papers with them. Presenting false or expired papers to the DHS may lead to deportation or criminal prosecution. An unexpired green card, I-94 (Arrival-Departure Record), Employment Authorization Card, Border Crossing Card or other papers that prove legal status generally satisfy this requirement. If people do not carry these documents with them, they could be charged with a crime. It is smart to keep copies with a trusted friend or family member who can easily fax the documents if need be.
Everyone has the same rights if a police officer or an officer with Immigration and Customs Enforcement (ICE) stops you on the street. An officer may not request evidence of a person's immigration status in that person's home or other private place unless the officer has a proper warrant. A person is not legally required to show proof of legal presence unless an officer has proof that the person is not a U.S. citizen. A local or state law enforcement officer cannot detain or arrest an individual simply because they believe the person is not legally present in the United States.2 A person is not required to talk to government officers about his or her immigration history. Once a person has shown evidence of immigration status, the individual does not have to talk to officers further.
You do not have to answer any questions, even if you are arrested. You should not and do not have to say anything about where you were born or how you entered the United States. You do not have to show any documents, unless you were stopped while driving a vehicle, in which case you may get in trouble for failing to produce a valid driver’s license or registration. It is extremely important to not show false documents, because doing so is a crime and can make the situation much worse. Note that falsely claiming U.S. citizenship can result in a felony charge and bar you from the United States.
You have the right to demand to speak to a lawyer, and you do not have to say anything to the police before you talk to a lawyer. Don't sign anything, especially an “Order of Voluntary Departure” without first talking to a lawyer. Do not sign anything that you cannot read or do not understand. If you are arrested and charged, ask to have your hearing in the city with an immigration court closest to where you live, so that your case, and you, are not transferred. If ICE agents come to your house, you do not have to open the door unless they show you a search warrant. The Immigrant Legal Resource Center has produced red cards that you can keep in your wallet and give to police or ICE agents if you are stopped on the street or if agents come to your home. You can order or download and print your own cards online here.
Anyone arrested for an immigration violation has the right to a hearing before an immigration judge to defend himself or herself against deportation charges. In most cases, only an immigration judge can order that someone be deported, unless the person has waived his or her rights or taken “voluntary departure,” agreeing to leave the country. Other instances when a person might be deported without a hearing is if the individual has a criminal record, was arrested within 100 miles of the border, came to the U.S. through the visa waiver program or has a prior deportation order. If a person gives up the right to a hearing or leaves the U.S. before the hearing is over, the person could lose eligibility for certain immigration benefits, and could be barred from returning to the U.S. for a number of years.
Note that the Board of Immigration Appeals has ruled that DHS has the discretion to place arriving immigrants in removal proceedings under INA §240, even if they may also be subject to expedited removal under INA §235(b)(1)(A)(i).3
Detention and Deportation4
For service providers, locating a client who has been detained by ICE can be a challenge. It will always be helpful to have your client's alien number (number starting with “A#”). Contact U.S. Immigration and Customs Enforcement’s Enforcement and Removal Operations or use the Online Detainee Locator System, which will be discussed later. If your client is or was on parole, it may be helpful to contact the parole officer. Non-citizens convicted of a crime are generally placed in deportation proceedings while in detention. ICE serves them a “notice to appear” (NTA) and a detainer so they cannot obtain release prior to deportation.
The NTA is the document the government gives the individual and the court to explain why an individual should be removed from the United States. The NTA starts the case against that person. ICE must give the individual the NTA within 72 hours of detention. The NTA is divided into two parts. The first part, “Allegations,” has the person’s name, the country of origin, and the date and manner of entry into the United States. It also gives the factual basis or reason for removal. The second part “Charges,” lists the sections of the law under which the individual may be removed. The individual's first date to see the immigration judge is usually scheduled within one or two weeks after receiving the NTA, though it may be longer.
The first appearance before an immigration judge is known as the “Master Calendar Hearing.” At the first court appearance, the court will ask the individual if he or she has an attorney or would like time to obtain one, and will then grant time to find an attorney, if necessary. At the beginning of the case the judge will “take the pleadings,” which means that the judge will review the NTA with the individual. The judge will ask if the facts contained in the NTA are true, if the individual admits that he or she is removable, and whether he or she will be applying for any type of relief from removal. The government will need to prove both that the individual is a foreign citizen and that he or she is removable. Transgender people are placed in detention facilities according to genitalia. For example, a transgender woman who has not had SRS would be placed in a men's detention facility. Advocates can petition on behalf of transgender prisoners for release or alternative sentencing on the grounds that the transgender person is in imminent danger while housed in an inappropriate detention facility as a transgender person.5
In 2011, The Heartland Alliance National Immigrant Justice Center filed a lawsuit against the Department of Homeland Security alleging that jailers nationwide have deprived gay and transgender detainees of basic rights.6 These complaints detail denial of hormone replacement therapy, sexual assault, denials of basic medical care, arbitrary confinement, and severe harassment and discrimination against LGBT immigrants. Almost all facilities holding ICE detainees have implemented the ICE Detention Standards to ensure consistent treatment and care for detainees in immigration custody. However, these standards are not legally enforceable, leaving many detainees without access to phones, adequate medical care, and basic legal materials. To file a grievance related to a situation or event related to a person's detention, first download a complaint form. The complaint should be sent to Department of Homeland Security, Office for Civil Rights and Civil Liberties, Review and Compliance, 245 Murray Lane, SW, Building 410, Mail Stop #0190, Washington, DC 20528, or e-mailed to: CRCLCompliance@hq.dhs.gov.
Online Detainee Locator System
One common problem in immigration law is that people who are detained by Immigration and Customs Enforcement (ICE) can be very difficult to track, as they are often transported to different states and facilities. To address this long-standing problem, on July 23, 2010, ICE announced the launch of a new public, internet-based system to help people locating individuals who have been detained in ICE custody. This system is called the Online Detainee Locator System (ODLS), and is on ICE's public website. This detainee locator program only searches for exact match names, so you have to enter the individual's information as it appears in their detention paperwork; preferred names will not be honored.
Non-citizens arrested in the U.S. have the right to call their consulate or to have the police tell the consulate of their arrest. The police must let the consulate visit or speak with them if consular officials decide to do so. The consulate might help find a lawyer or offer other help. A non-citizen has the right to refuse help from the consulate. For an excellent guide to consular rights and a list of foreign consulates in the United States, see Chapter 2 of “A Jailhouse Lawyer’s Manual: Immigration and Consular Access Supplement”, published by Columbia Human Rights Law Review and available here.
See Arizona v. United States, 132 S. Ct. 2492, 2505-06 (2012) (Holding that Arizona’s law requiring local officers to determine the immigration status of any person they stop was pre-empted by federal law). ↩
Matter of E-R-M- & L-R-M, 25 I. & N. Dec. 520 (BIA 2011). ↩
Information in this section taken from: Immigration Detention and Removal: A Guide for Detainees and their Families, Bryan Lonegan & the Immigration Law Unit of the Legal Aid Society, 2006, Last visited June 14, 2013; Immigration Court Practice Manual Chapter 4, United States Department of Justice, Executive Office for Immigration Review, April 1, 2008, Last visited June 14, 2013. ↩
Trans 101 Training, Transgender Law Center, June 20, 2008. ↩
Civil Rights Complaint for LGBT Immigration Detainees, Heartland Alliance National Immigrant Justice Center, April 13, 2011. Last visited June 13, 2013. ↩