Complying With or Resisting ICE Subpoenas: An Immigrant’s Guide

Complying With or Resisting ICE Subpoenas: An Immigrant’s Guide

Getting an administrative subpoena from Immigration and Customs Enforcement (ICE) can be scary and confusing. This article will explain what your rights and options are if you receive one. We’ll go over what an ICE subpoena is, what information ICE can legally demand from you, the consequences of not complying, and potential legal defenses. Our goal is to empower you with knowledge so you can make the best decision for your situation.

What is an ICE Subpoena?

An ICE subpoena is a written demand for information related to an immigration investigation[2]. It may require you to:

• Provide documents
• Answer interrogatories (written questions)
• Testify in person

ICE subpoenas are administrative, meaning they are issued directly by ICE, not by a judge[3]. They are signed by an ICE agent or immigration judge.

An ICE subpoena does not give ICE permission to enter your home or search your belongings without consent. It only demands information[3].

What Information Can ICE Legally Demand?

ICE has broad authority to issue subpoenas for information relevant to immigration investigations. However, there are some limits:

• ICE cannot violate your Constitutional rights or protections. For example, they cannot force you to share self-incriminating information if you invoke your Fifth Amendment right against self-incrimination.
• ICE must follow its own policies and regulations regarding subpoenas.
• ICE subpoenas usually have to be reasonably specific about the information demanded. For example, a subpoena for “any and all documents relating to immigration status” may be too broad.
• ICE is not supposed to use subpoenas solely to get information they could easily obtain from other sources.

If you believe the ICE subpoena demands information in violation of your rights or ICE policies, consult with an immigration attorney to explore challenging it.

What Are the Consequences of Not Complying?

There can be serious consequences if you “disobey” an ICE subpoena by not providing the demanded information[2]:

• You may be charged with a misdemeanor crime of “willfully disobeying” the subpoena, punishable by fines and up to a year in prison.
• ICE can coordinate with the U.S. Attorney’s Office to obtain a court order compelling you to comply. Ignoring a court order can lead to contempt of court charges.
• ICE may use your noncompliance as evidence of “bad moral character” if you apply for immigration benefits or try to fight deportation.

However, the decision on whether to actually pursue those consequences is within ICE’s discretion. In many cases, they do not force compliance or impose penalties.

Should I Comply?

Whether to comply with an ICE subpoena is a personal decision that depends on your specific situation. There are pros and cons to consider:

Potential Pros of Complying

• Avoids possibility of criminal charges or contempt of court.
• May curry some favor with ICE by appearing cooperative.
• Provides an opportunity to put exculpatory evidence on the record.
• ICE may lose interest once they get the demanded information.

Potential Cons of Complying

• Handing over information may strengthen ICE’s case against you or others.
• Sets a precedent that you will comply with ICE demands.
• May require revealing sensitive or private information.
• Time-consuming and disruptive to everyday life.

There are also intermediate options between full compliance and outright refusal. For example, you may be able to:

• Ask ICE to modify or narrow the scope of their subpoena demand.
• Provide some but not all of the information requested.
• Assert your Fifth Amendment right for any self-incriminating questions.
• Meet with ICE to explain why you cannot or will not comply.

Explore all your options with an experienced immigration attorney before deciding on how to respond.

Challenging or Resisting an ICE Subpoena

There are various legal arguments you can make to challenge an ICE subpoena and justify noncompliance[1]:

• Lack of authority – Argue ICE lacks the statutory authority or jurisdiction to issue the subpoena.
• Improper purpose – Allege ICE is misusing subpoena power for ulterior motives like harassment or fishing for information.
• Unreasonable burden – Claim complying would be unreasonably difficult, expensive, or time-consuming.
• Insufficient specificity – Assert the subpoena demand is overly broad, vague, or ambiguous.
• Privileged information – Refuse to hand over documents protected by attorney-client privilege, doctor-patient confidentiality, etc.
• Violates Constitutional rights – Decline to provide information that would violate your Fourth or Fifth Amendment protections.

You should send ICE a written response explaining why you believe the subpoena is improper or invalid based on one or more of those arguments. It’s best to have an immigration lawyer draft and send the response on your behalf.

Even if ICE rejects your arguments, putting your objections on the record will help if you end up in court over noncompliance. The judge may agree the subpoena demand was overbroad or violated your rights.