Recent large-scale immigration raids in Colorado — and the potential for more under the new Trump administration — have left Coloradans with questions about how such raids work and what their rights are.
Immigrant rights advocates and lawyers have sounded alarms about potential legal violations in the aftermath of Feb. 5, when federal agents from U.S. Immigration and Customs Enforcement and other agencies descended on Denver and Aurora to conduct immigration raids in the early morning hours at apartment complexes.
Reports put the number of detained people at around 30, far short of their publicly stated goals. But ICE hasn’t confirmed the size and scope of those operations. It also hasn’t responded to questions about where detainees are being held and whether they had criminal records or ties to the Venezuelan gang Tren de Aragua. Since then, smaller enforcement actions have occurred locally, including near a downtown courthouse, an incident that raised additional legal concerns.
Here’s what you should know about the legal process behind an immigration raid — and immigrants’ rights.
John Fabbricatore, a former ICE Denver field office director, described the agency’s intensive training process on immigration law, which takes about 20 weeks. Officers learn constitutional, immigration, visa, removal and naturalization law, he said.
Like other law enforcement agencies, ICE is bound by the U.S. Constitution’s Fourth and Fifth Amendments: the right to protection from unreasonable searches and seizures and the right to remain silent, respectively.
ICE must follow immigration-specific laws and agency regulations, which include those governing the use of force during enforcement activities, said Elizabeth Jordan, a visiting assistant professor at the University of Denver’s Sturm College of Law who directs its immigration clinic. And Hans Meyer, an immigration and criminal defense attorney in Denver, said ICE’s federal statutory obligations set “limits on their authority to be able to conduct certain investigations.”
His example: Agents are prohibited from detaining people if they don’t have reasonable suspicion based on facts learned through an investigation.
“Law enforcement officers — and ICE — cannot use things like race as a justification to detain somebody,” Meyer said. “They can’t use the fact that somebody’s speaking Spanish.”
He points to instances of detaining or arresting people en masse as federally and constitutionally unauthorized without reasonable suspicion that the people are in the country without proper legal status.
Fabbricatore said the development of reasonable suspicion and probable cause applies to all law enforcement officers — not just those at ICE.
During an operation, “they normally would have targets that they’ve already identified as being in the country unlawfully,” he said. And if officers encounter other people on site who they also suspect of lacking legal status, he said, “you have to develop your probable cause through an on-site investigation.”
Determining whether a person is lawfully in the U.S. typically involves conversation, documentation and technology, Fabbricatore added.
ICE typically investigates and detains people for civil immigration violations.
“Not having (legal) status is a civil matter in the U.S. It’s not a criminal matter,” Meyer said.
But Fabbricatore asserted that ICE has both civil and criminal arrest authority, and the charges depend on how the investigation is structured. A person who is present in the U.S. unlawfully may be subject to a civil charge, particularly if they entered legally first, he said. So overstaying a visa counts as a civil immigration violation.
However, certain cases can be elevated to criminal status. Entering the country illegally, such as by crossing the border undetected, can be considered a misdemeanor. ICE can detain a person for a misdemeanor. Fabbricatore said the law that bars “improper entry by (an) alien” is most often used at the U.S. border, where ICE agents issue that charge and send the person back out of the country.
In some cases, if a person has been deported and reenters the U.S., then it is a felony. Fabbricatore said that would allow the agency to obtain a criminal warrant to arrest the individual.
A warrant is a document that allows law enforcement officers to arrest a person, perform searches of property or people, and more. A judicial warrant is issued by a judge.
But judicial warrants “very rarely exist in the immigration space,” Meyer said. That’s a key difference between the standard criminal justice system and the immigration system, he added.
“In the immigration space, there are no warrants for arrests really issued by immigration courts because it’s a civil matter,” Meyer said.
Instead, ICE officers collect enough information to justify an administrative warrant. Those are signed by ICE supervisors, Fabbricatore confirmed. But since those warrants aren’t signed by judges — who would have to review them independently — “there’s no checks and balances,” Meyer argued.
An administrative warrant doesn’t grant ICE officers the ability to enter private property like a home or a car. Instead, they must obtain consent.
“What we saw happen, I believe, (on Feb. 5) is ICE showing up in full battle armor with AR-15s and banging down doors and essentially coercing consent for people to open them,” Meyer said of the recent raids.
He described an alternative scenario: “When a person that they’re looking for isn’t there, (they) contact everybody else in that place … and coerce them into speaking, and then use the information against them to justify their arrest.”
Those are referred to as collateral arrests.
Depending on the case, Fabbricatore said ICE can pursue criminal warrants. His example was a prior gang member who committed gun violence and was deported but then reentered the country.
“We would ask for (a warrant) to go looking for any firearms that they may have currently,” he said, “and also for any documentation that they may have in their house on how they entered the country illegally.”
A ruse — defined by Meyer as “using a false pretense to … bait somebody into something” — is generally considered a legitimate law enforcement tool, including by undercover cops. ICE is allowed to use ruses, he said.
Fabbricatore explained that he used ruses to lure someone away from a house where children or other family members were present.
However, Meyer said, “when you have officers or law enforcement threatening that ‘If you don’t talk, this is what I’m gonna do to you’ — that’s a different question. That’s where we move into intimidation and coercion, as opposed to a ruse.”
Jordan, the DU visiting professor, pointed to a 2020 federal class action lawsuit filed in California by the ACLU Foundation of Southern California and others related to ICE ruses. It claimed that immigration officers violated the Constitution by misrepresenting themselves as police and probation officers and sometimes trespassing.
During an immigration enforcement operation, the Fourth Amendment still stands, regardless of a person’s immigration status.
“We don’t allow the government to engage in unreasonable searches, unreasonable seizures,” Jordan said. “Anybody present in the U.S. enjoys the benefit of the Fourth Amendment.”
During a raid, a person can ask officers to identify themselves through a closed door or window, Meyer said. Officers aren’t constitutionally obligated to respond.
“But generally speaking, when officers are executing a warrant, they need to identify who they are,” Meyer said. “Otherwise, for a person, it feels like they’re being kidnapped.”
A person can also ask if officers have a judicial warrant and if they can see it to confirm their name is on it. If the judicial warrant is valid, then law enforcement officers can make an arrest.
However, if an officer refuses to show the warrant or explain whether it’s judicial or administrative, Meyer said, he would advise “that person probably should not open the door. ICE is not entitled to come in if they do not have a judicial warrant.”
But he said ICE officers may force entry anyway.
Fabbricatore noted that, if federal officers infringe upon a person’s constitutional rights, that individual can file a lawsuit called a Bivens action.
Jordan referred to the large-scale raids on Feb. 5 as “showy.” The agency’s objective of picking up individuals for civil immigration violations, in her view, did not gel with “the excessiveness of their conduct” that day.
“We don’t often see armored vehicles rolling through the streets of our city,” she said.
Meyer’s opinion is that “it seems like most of the operations that have been conducted by ICE have a kernel of legitimacy to them.” That’s because officers may have obtained a limited judicial warrant to search for one or two people, he said, or documents that allowed them to enter a specific area.
But from there, Meyer said, “they use that pretext to then sort of knock and talk or kick down or force their way into a bunch of other apartment buildings (and) contact a bunch of other people.” At times, he said, he thinks ICE operations “are clearly violating the Fourth and Fifth Amendment protections.”
Fabbricatore, for his part, believes “the operational tempo has been pretty fast lately,” compared to the slower pace for ICE under former President Joe Biden’s administration.
“It’s just going to take a little bit of time for the men and women of ICE to reach that operation tempo that is being required of them at this time,” he said.
Originally Published: