Wilner & O'Reilly, APLC
One Practice. One Focus. One Passion: Immigration Law.

Questions for immigration attorney:

Q: What are my rights if immigration officers ("ICE") come to my house?Even if you are in this country without valid status or are undocumented, the U.S. Constitution affords certain rights. You don't have to open the door or let the officers into your home unless the immigration officers have a valid search warrant, signed by a judge. A warrant is a document signed by a court or authorized government agency. Keep in mind that an ICE deportation/removal warrant or arrest warrant is not the same as a search warrant. The officers cannot enter your house without the search warrant unless you give them verbal permission to come inside. Your verbal permission is called "consent." You have the right to see the search warrant before the officers enter your house (for example, you can ask them to slide it under the door). You can also talk with the officers at the door, without letting them inside.

Q: What must a valid warrant include?

Both a search warrant and an arrest warrant should include your true and correct name, your address, and it must be signed by a judge or ICE. The warrant must be in English. The search warrant allows the government to enter the house. The arrest warrant does not.

Q: Can I refuse to speak with the immigration officers at all?

Yes. You have the right to remain silent. You may remain silent even if asked about your country of birth and how you entered the United States. Clearly indicate that you are exercising your right to remain silent. You can also invoke the right to speak with an attorney. After you invoke the right to speak to an attorney, ICE officers are not supposed to ask any further questions. Please keep in mind, however, that anything you voluntarily say after asking to speak to an attorney can still be used against you. You can also refuse to show your identity documents and evidence of entry to the United States. However, please do not show any false documents and do not lie.

Q: Can ICE officers use physical force or abuse against me if I don't answer questions?

They cannot. However, if you allow the officers inside, do not antagonize them, do not call them names, and do not make any threats. Be polite and cordial. Do not lie.

Q: Do I have the right to speak to an attorney if I am detained or taken into custody?

Yes. You have the right to request to speak with an attorney even if you don't have one already. You can ask the immigration officers for a list of pro bono lawyers. You also have the right to contact your consulate. The consulate representatives may help you find an attorney. You may want to speak to an attorney before contacting the consulate, however, if you are afraid to return to your country of birth, especially if you fear you could be harmed by the government of your birth country.

Q: When I am detained or in custody, do I have to sign any paperwork?

No. You can refuse to sign any documents until you have had the chance to speak with an attorney. Do not sign any documents that are not in your native language. The same applies if you choose not to get an attorney. Make sure you understand what you are asked to sign before you do it.

Q: What should I do if the immigration officers come to my workplace?

Immigration officers cannot enter your workplace without the owner or manager's permission. If the permission is given, the officers can ask you questions about your immigration situation. However, you have the right to remain silent and ask for the opportunity to speak with an attorney. You don't have to tell the officers where you were born and what is your immigration status. You do not have to show the officers any documents. Instead, ask to speak with an attorney. You don't have to stand in a group according to your immigration status if asked to do so.

Q: Should I run away if the officers come to my workplace?

No. Remain calm. If you feel you must leave, try to do so by walking calmly toward the exit. If you are stopped and are told that you don't have permission to leave the building, do not try to leave.

Q: What are my rights if I am stopped by ICE in public?

You have the right to remain silent. If you are stopped for questions, but there is no arrest, you do not have to agree to be searched. This also applies to your belongings. However, the officers may "pat down" your clothing if they suspect you are armed. You have the right to speak to an attorney.

Q: Can my children be deported at school or during school hours?

All children, regardless of their immigration status, have a right to pursue elementary and high school education. Generally speaking, immigration authorities do not come to schools and churches, which are deemed as "sanctuaries." We are not aware of any situations where undocumented children were arrested at school and deported.

Q: I have a travel visa and it is valid for another 5 years.

· Am I considered undocumented?

· Can I be deported?

Whether you are considered undocumented depends on the terms of your visitor visa. In particular, you have permission to be in the United States for up to 6 months after you last entered unless you were given less than 6 months to be in the United States. If you have overstayed the time given to you at entry, you may be subject to deportation and your visa may be cancelled even if it is still valid. Visa is an entry document only. It does not allow people to be present in the United States without permission.

Q: I am undocumented but my children were born in the U.S.

· Can my children be deported?

No. If your children were born in the United States, they cannot be deported. However, if you do not have any relatives to take care of your kids and you are either allowed or forced to leave the United States, your children can join you in your native country. It is strongly advised that you make the necessary provisions for your children ahead of time, by having a legal guardian in place or authorizing trusted friends and family to act on your children's behalf when you are prevented from doing so yourself. Have a safety plan in place for you and your family so you are prepared. Similarly, if your children need to travel abroad without one or both parents, you may wish to have a notarized letter that authorizes a specific person to travel with the children. Generally, a letter is not required by the United States, but government officials or airlines may request it on a case-by-case basis. Please note that some destination countries do require letters of consent to travel.

Q: If I were deported what would happen to my children? (I am a single parent.)

· My children's father has a restraining order against him. Will my children be forced to go with him if I am deported? What happens if the father has no custody?

While immigration authorities take the existence of U.S. citizen children into account, there is no law that prevents a person from being deported even he or she has children in the United States. The authorities will not place your children with relatives (even parents) who are legally prevented from having access to them (for example, if there is a restraining order in place). However, each situation is different. The scope of contact between the parent with the restraining order and the children will depend on the circumstances. This is why it is recommended that you have a good friend or relative appointed as a guardian in case of emergency or when you are not in the position to act on your children's behalf. You may also contact a family attorney ahead of time to make sure that the children's other parent does not have any contact with your children.

Q: If I have a visa, for how long do I have to wait to apply for a work permit? I have been told 2 years or 6 months.

Not every visa allows a person to work in the United States. Some visas come with employment privileges, but many do not. For example, you do not have permission to work in the United States if you have entered as a visitor. We recommend that you contact an immigration attorney to see if your particular visa allows you to work in the United States.

Q: When should I seek assistance from the consulate?

· Does a consulate have to grant permission for my children to be left with a relative?

You may seek assistance from your consulate when you are detained or arrested. They can help you with locating an attorney or a relative to take care of your children. The consulate officers cannot make decisions for your children without your involvement and input. You may want to speak to an attorney before contacting the consulate, however, if you are afraid to return to your country of birth, especially if you fear you could be harmed by the government of your birth country.

Q: I don't have any friends or relatives in the U.S.

· Will my children be placed in child protective services or foster care if I am deported?

It is possible that your children will be placed in protective services or foster care if you have not made any arrangements for them beforehand. Again, it is recommended that you make provisions now to avoid any problems. Make sure that your children and your children's school officials have contact information for you and your designated guardian for your children. You may consider preparing a power of attorney/guardianship documents so your children continue to have access to medical care, school, and any necessary social services.

Q: I am interested in consulting with an attorney about my immigration case.

· Where can I find a low-cost attorney?

There are many resources available online, which can help you find legal aid and pro bono services. The state bar organization (which licenses all attorneys in the state) also has this information available. Most immigration courts also have a published list of pro bono attorneys. However, please keep in mind that pro bono attorneys may not be able to help you for free or they may not take detained cases. Consider contacting private immigration attorneys, as many of them offer free consultations and can reduce their fees, depending on circumstances. Some attorneys may also consider taking your case on a pro or low bono basis.

Q: Should I refrain from attending services in the community because I am increasing the risk of being stopped and questions by police or ICE?

No. You should carry on with your lives and continue attending health fairs, counseling services, and classes. We are not aware of any arrests that have occurred at these or similar locations. However, be cautious and be prepared in case you are stopped by ICE. In addition to carrying any important documents you may wish to have on you, carry prepaid calling cards.

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