How Federal Subpoenas Are Used in Immigration and Deportation Cases

How Federal Subpoenas Are Used in Immigration and Deportation Cases

The federal government uses subpoenas often in immigration and deportation cases. A subpoena is a written order that requires someone to testify as a witness or produce documents or evidence. There are two main types of federal subpoenas used in immigration cases: judicial subpoenas and immigration subpoenas.

Judicial Subpoenas

A judicial subpoena is issued by a court and signed by a federal judge. These subpoenas require compliance, meaning you must obey them or face legal consequences. Ignoring a judicial subpoena can result in being held in contempt of court, which could lead to fines or even jail time.

Judicial subpoenas are used to compel witnesses to testify or produce evidence in immigration court proceedings. For example, if the Department of Homeland Security wants a landlord or employer to testify in an immigrant’s deportation hearing, they may serve that person with a judicial subpoena ordering them to appear and testify.

Judicial subpoenas can also be used by immigrants fighting deportation to compel witnesses or evidence that may support their case. An immigrant’s lawyer could get a subpoena ordering an expert witness to testify about how deportation would impact the immigrant’s U.S. citizen children.

Immigration Subpoenas

Immigration subpoenas, sometimes called administrative subpoenas, are issued by federal immigration agencies like Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS). They are signed by an immigration officer or judge.

Unlike judicial subpoenas, there are no direct legal penalties for ignoring an immigration subpoena. However, failure to comply could still harm an immigrant’s case or lead to other negative consequences.

For example, if an immigrant misses a hearing after being subpoenaed, the judge may order them deported in absentia. Or if they fail to provide requested documents, it could hurt their request for relief from removal.

When Immigration Subpoenas Are Used

Immigration agencies use subpoenas for various purposes in deportation cases, including:

• Requiring immigrants to appear for interviews or hearings
• Compelling witnesses to testify at deportation hearings
• Demanding an immigrant’s employment or medical records
• Obtaining school records or other documents from third parties

For example, ICE may subpoena an immigrant’s landlord demanding rental records to try to prove the person lacks legal status. Or they might subpoena school records to verify a child’s age and immigration status.

Challenging and Resisting Subpoenas

Those who receive federal subpoenas do have some rights and options for challenging them. However, the rules differ for judicial versus immigration subpoenas.

Challenging Judicial Subpoenas

Recipients of judicial subpoenas can file motions to quash or modify the subpoena if they believe it is improper, overly broad, vague, etc. This asks the court to cancel or change the subpoena. Grounds for quashing include:

• The subpoena seeks information protected by privilege
• Complying would be unreasonable or oppressive
• The subpoena is irrelevant to the case

If the motion is denied, however, you must comply with the subpoena or potentially face contempt charges.

Resisting Immigration Subpoenas

Unlike judicial subpoenas, there is no formal process for quashing or modifying immigration subpoenas. But immigrants do have some options for resisting compliance:

• Consult an immigration attorney about the legality of the subpoena and possible defenses.
• Politely write to the issuing officer explaining why you believe you should not have to comply.
• File a complaint arguing the subpoena violates your rights or agency policies.
• Contact advocacy groups who may be able to bring public pressure against improper subpoenas.

However, immigration agencies have significant power to enforce subpoenas, so outright ignoring them involves serious risks.

Subpoena Defense Strategies for Immigrants

If you receive an immigration subpoena related to a deportation case, here are some strategies to consider:

• Get legal help to understand your rights and obligations.
• Negotiate the scope of the subpoena by offering to provide only specific, limited information.
• Argue the information is protected by attorney-client or other privilege.
• Withhold sensitive information that could harm your immigration case and explain why.
• If compelled to testify, assert your Fifth Amendment right against self-incrimination for any relevant questions.

While federal subpoenas can be intimidating, understanding your rights and working with an attorney can help limit their impact on your immigration case.

Criticisms of Immigration Subpoena Powers

Giving federal immigration officers broad subpoena powers in deportation cases has drawn criticism from civil rights groups. Some key concerns include:

• Immigration subpoenas allow fishing expeditions for information without requiring probable cause.
• They give too much unchecked power to compel documents and testimony.
• Immigrants have limited rights to challenge improper subpoenas.
• They can be used to circumvent Fourth Amendment protections against unreasonable searches.
• Sensitive personal information obtained can end up being used for enforcement purposes.
• Schools, employers, and health providers may improperly share private records without consent.
• Communities lose trust in institutions that share information with immigration authorities.
• More judicial oversight is needed to prevent subpoena abuses and protect civil liberties.

While immigration officials argue expanded subpoena powers improve public safety, civil liberties groups contend they infringe on privacy rights and erode community trust in government institutions.