A knock on the door signals fear for many undocumented immigrants. When the United States Immigration and Customs Enforcement (ICE) knock on your door, you must ask the officer to identify himself, and determine whether he has a valid warrant. A warrant is a document issued by a court or government agency and must contain your name, address and a signature. If the valid warrant authorizes a search of your house, you should allow the officer inside the house. If the warrant authorizes your arrest but not the search of your house, do not let the officer inside your house. It is important to understand that you should not answer any questions asked by the officer or sign any papers, and to inform the officer that you would like to talk to an attorney before you say anything.
In an August 2008 decision, the United States Ninth Circuit Court of Appeals held that where immigration agents did not obtain warrants for aliens' arrest or to search aliens' residence but entered residence and arrested aliens absent any exigent circumstances or proof of consent, officers' entry violated the Fourth Amendment of the Constitution of the United States of America. The plain language of the Fourth Amendment states "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."
In the case Lopez-Rodriguez and Gastelum-Lopez v. Mukasey, government agents came to petitioners' residence without an arrest or search warrant based on a tip of fraudulent use of a U.S. birth certificate. Petitioner Gastelum came to the door when the INS agents knocked and, upon establishing a verbal contact with her, they pushed the door open and entered and continued to talk to her. At no time did Gastelum tell the agents to leave or tell them she did not want to talk to them, and they did not identify themselves until they were handcuffing her.
The Immigration Judge (IJ) ruled that although there were "some 4th Amendment problems with the manner of entering and questioning" the problems were not egregious violations. The Board of Immigration Appeals (BIA) affirmed the Immigration Judge without decision. The Ninth Circuit reviewed the IJ and BIA decisions and reversed, stating that the basic principle that searches and seizures inside a home without a warrant are presumptively unreasonable, citing Payton v. New York, 445 U.S. 573, 586 (1980), and this presumption may only be overcome by consent or exigent circumstances. The Ninth Circuit also said that "the bare fact that Gastelum neither refused to speak to them nor ordered them to leave after they pushed the door open and entered her home is insufficient to establish consent."
Undocumented immigrants who are detained as a result of an unconstitutional search and seizure should contact the Law Offices of Vincent W. Davis & Associates. Our attorneys have vast knowledge and experience in the areas of both immigration law and criminal defense.
~Joyce Komanapalli, Esq.
Law Offices of Vincent W. Davis & Associates
