How Federal Subpoenas Are Used in Immigration and Deportation Cases

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Last Updated on: 2nd October 2023, 05:52 pm

 

How Federal Subpoenas Are Used in Immigration and Deportation Cases

When it comes to immigration and deportation cases, federal agencies like the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have the power to issue subpoenas to compel testimony or the production of evidence. This can have major implications for immigrants fighting deportation or trying to obtain legal status.

In this article, we’ll break down how federal subpoenas work in the immigration context. We’ll look at the key differences between judicial subpoenas and administrative subpoenas issued by federal agencies. We’ll also discuss how subpoenas are used by immigration officials and the defenses that may be available.

What is a Subpoena?

In general, a subpoena is a written order compelling someone to testify as a witness or produce evidence related to an investigation or legal proceeding. Subpoenas are used to gather information from third parties who might have knowledge or documents relevant to a case.

There are a few key types of subpoenas:

• Judicial subpoenas are issued by a court and are signed by a judge. They compel compliance under penalty of contempt of court.
• Grand jury subpoenas are issued on behalf of grand juries investigating potential crimes. Failure to comply may result in contempt charges.
• Administrative subpoenas are issued by government agencies conducting investigations or administrative proceedings. They are not court orders, but failure to comply may still result in penalties.

Immigration Subpoenas vs. Judicial Subpoenas

In immigration cases, federal agencies issue administrative subpoenas. This is different from a subpoena issued by a court.

A judicial subpoena is signed by a judge and carries the authority of the court. Disobeying a judicial subpoena may result in civil or criminal contempt sanctions, like fines or jail time.

In contrast, an administrative subpoena is issued directly by a federal agency like DHS or ICE. It is not reviewed or approved by a judge. While there can still be consequences for disobeying an agency subpoena, it does not carry the same authority as a court order.

How Immigration Subpoenas Are Used

During deportation proceedings in immigration court, ICE attorneys have the power to issue subpoenas to gather evidence or compel witnesses to testify. For example, they may subpoena:

• Records from local police, employers, or schools
• Testimony from neighbors, co-workers, family members
• Medical or financial records
• Travel records, social media information

ICE uses subpoenas to build cases against immigrants they are trying to deport. Information gathered can be used to argue that someone should be removed from the U.S.

Outside of court, federal immigration agencies also issue subpoenas to investigate civil or criminal immigration violations. For example, they may subpoena payroll records to investigate if a business is employing undocumented immigrants.

Can You Fight an Immigration Subpoena?

Unlike judicial subpoenas, administrative subpoenas are not reviewed by a neutral judge before they are issued. This means there are opportunities to fight or limit agency subpoenas.

If you receive an immigration subpoena, potential responses include:

• File a motion to quash – Argue there are legal grounds why you should not have to comply.
• Request a protective order – Ask to comply in a limited way or have your response be confidential.
• Assert a privilege – Refuse to provide privileged information, like communications between attorney and client.
• Petition to modify or set aside – Ask the agency to withdraw or change the subpoena.

It’s important to keep in mind federal agencies have significant investigative powers. Fighting a subpoena can be difficult. Working with an experienced immigration attorney is highly recommended if you want to challenge an agency subpoena.

Can ICE Subpoena Local Police and Jails?

Yes, ICE can issue administrative subpoenas to local law enforcement agencies like police departments and jails. This has become a controversial practice.

In the past, many local agencies voluntarily cooperated and shared information with immigration officials. However, as more cities adopt “sanctuary” policies to limit cooperation with ICE, federal immigration agencies have increased reliance on subpoenas to compel local police and jails to provide information about immigrants in custody.

For example, ICE may issue a subpoena demanding:

• Dates when an immigrant is scheduled to be released from jail
• Information about their criminal history
• Allowing ICE agents access to interview immigrants in custody

Local agencies who resist or refuse to comply with these ICE subpoenas argue they are not legally required to assist with civil immigration enforcement. Some cities have gone to court to defend their sanctuary policies against immigration subpoenas.

Using Subpoenas to Get Records from Banks, Employers, and Schools

ICE also uses subpoenas to gather information directly from third parties like banks, employers, landlords, and schools. Some examples include:

• Bank Records – Financial information, statements, wire transfers can help identify immigrants and their assets.
• Employment Records – Form I-9s, payroll records, and personnel files may reveal unauthorized work and immigration status.
• School Records – Student information can help locate immigrants including minors and family members.
• Medical Records – Details about immigration medical exams, vaccinations, and health history.
• Housing Records – Rental agreements, utility bills, and landlord records can provide immigration authorities with home addresses.

The types of personal information accessible through these subpoenas raise significant privacy concerns. However, agencies like ICE maintain broad authority to subpoena third party records relevant to immigration enforcement.

Using Subpoenas to Make Arrests

ICE also uses subpoenas to locate and arrest undocumented immigrants. For example, they may issue a subpoena demanding:

• Testimony from family, friends, employers, or others who may know where an immigrant lives or works.
• Cell phone location data that can help pinpoint where to make an arrest.
• Employment information like work schedules that show where an immigrant can be found.

In these cases, subpoenas provide key information ICE needs to track down and detain someone they want to deport. Arrests often happen at homes, workplaces, or traffic stops shortly after ICE issues an investigative subpoena.

Limits on Immigration Subpoena Power

While federal agencies have broad authority to issue administrative subpoenas, there are some legal limitations:

• ICE subpoenas usually only apply to information kept within the United States. Records held abroad are harder to obtain.
• Subpoenas must be relevant to an authorized investigation or proceeding. They cannot be used for harassment.
• Overly broad or vague subpoenas may be challenged as improper.
• Privileged information is protected from disclosure.
• Naturalized citizens cannot be subpoenaed about immigration status or citizenship applications.

Enforcing Compliance with Immigration Subpoenas

If a person or company refuses to comply with an immigration subpoena, ICE has options to enforce cooperation:

• Send follow-up requests and demand compliance.
• Threaten fines or imprisonment for contempt.
• Issue a new subpoena or warrant to obtain the records.
• File a civil lawsuit asking a federal court to order compliance.
• Pursue criminal charges for obstruction of justice.

However, because administrative subpoenas lack judicial oversight, enforcing compliance can be challenging for ICE. Agencies must carefully weigh whether to pursue punitive measures for non-compliance.

Subpoenas Used in Parallel with Immigration Arrest Warrants

Along with subpoenas, ICE also uses administrative arrest warrants to take immigrants into custody. These two tools are often used together.

First, ICE may issue subpoenas to help identify and locate an immigrant. Then, once they have enough information to apprehend the person, ICE obtains an arrest warrant. At that point, ICE agents can forcibly detain and deport the immigrant.

However, an administrative immigration warrant still requires agents to have probable cause. ICE cannot use an arrest warrant to detain someone without evidence they could be deported. The subpoena provides key supporting evidence to get the warrant.

Objectives of Immigration Subpoenas

In summary, federal agencies use subpoenas in immigration cases to:

• Obtain evidence to support deportation or removal proceedings.
• Compel testimony from witnesses who may have information about an immigrant.
• Gather records and documents that help identify and locate immigrants.
• Investigate potential immigration violations.
• Bolster requests for immigration arrest warrants.

Subpoenas give ICE significant power to collect information and build deportation cases against immigrants. Understanding how they are used is important for anyone navigating the immigration system.

The Bottom Line

Immigration subpoenas issued by federal agencies like ICE are powerful investigative tools. They can compel cooperation from immigrants in removal proceedings as well as third parties who may have relevant information.

While administrative subpoenas lack the full authority of court orders, there can still be consequences for failing to comply. Those on the receiving end should consider seeking legal advice to understand their rights and options to challenge immigration subpoenas.