ADVICE FOR SCARY TIMES
On the day the new president took office he signed a whole slew of Executive Orders and rescinded even more. Among these executive orders was one expanding the powers of the Department of Homeland Security in seeking out, detaining, and deporting undocumented immigrants. Another executive order rescinded limits placed on ICE (Immigration and Customs Enforcement) and the Border Patrol with regard to defined “sensitive places.” “The first directive rescinds the Biden Administration’s guidelines for Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) enforcement actions that thwart law enforcement in or near so-called “sensitive” areas.” These sensitive places include hospitals, churches, and…schools.
Wow! That’s a pretty heavy paragraph!
Indeed.
First, an executive order is, in essence, a policy written by the President about how he plans on carrying out the laws. It’s the President’s job to enforce the laws passed by Congress. Obviously, the President can’t enforce all of these laws by himself. The people working for him will do the actual work. An executive order is his way to communicate how he wants that done. It also communicates the things that the president wants the Executive Branch to prioritize.
Something you should know is that an Executive Order is not a law. It is not legally binding. It is simply the President’s way to communicate to the millions of people working for him how to carry out their duties. An Executive Order, to be legitimate, must conform to pre-existing law.
It’s the President’s job to enforce laws with regard to who is allowed to cross the border, and who is allowed to be in the country. This is immigration law and the specifics can be found in the U.S. Code. The Department of Homeland Security is the department that helps the President deal with the overall security of the United States. The Border Patrol and ICE are branches within the Department of Homeland Security that focus on border security and immigration. It’s important for the president to communicate how he wants these branches to do their jobs.
As you can imagine, the United States has huge borders, and it’s really hard to secure them…especially when millions of people want to cross those borders. Millions of people have been able to cross the borders and start a life in the United States without going through the legal process to be approved. The President has to decide how he wants to deal with these people.
Now, most of these people are just like you and me. They work. They raise families. They send their kids to school. But, they did break the law by entering the country without permission. Many took their children with them. Many started families and had children after they got here. These children are, by virtue of a thing called Birthright Citizenship, citizens of the United States, even though their parents are not.
A small number of these immigrants commit crimes. Most of these crimes are minor, but some are violent. Since there is this huge spectrum of issues with regard to immigration, the President has to decide how he wants to prioritize enforcement. Does he really want to deport the parents of an American citizen who are working and not committing any crimes?1 Well, historically Presidents try to focus on undocumented immigrants2 who commit significant crimes. There are only so much resources to go around. You have to prioritize what is most important for your focus. Of course, different Presidents have different ideas on what is important.
Part of this prioritization is in deciding how interrogations and arrests will happen, such as where can someone be arrested or detained, and where are people safe from state interference. For instance, churches. In the United States, we value the sanctity of churches. If ICE learns that there is an undocumented immigrant in a church, should they be allowed to disrupt the service for everyone to conduct the arrest? Most often, high officials say no. People have a right to worship in peace, and the needs of the police to make an arrest are outweighed by the rights of the faithful to worship. Schools and hospitals have been given the same deference. Children, even undocumented children, have a right to an education, as do the other students in the class who will be disrupted should an arrest take place in school.
Okay. That makes sense. So, what’s the issue?
During the last election, immigration and immigration enforcement on undocumented immigrants was a huge issue. The current president ran much of his campaign on President Biden’s lax enforcement on the border3 and promised that he would take a much tougher approach. Regardless of how I or you may feel on the topic, most people voted for the tougher approach. Consequently, the President is communicating his intentions to expand immigration enforcement. The President has communicated that his administration will no longer consider schools, churches, and hospitals off limits as a setting for arrests and detentions.
Oh! That could be a problem!
Well, the good news is that these places no longer being “officially” secure through pre-existing Executive Orders does not mean that they are not “unofficially” secure. In other words, just because ICE and the Border Patrol CAN make arrests in schools does not mean that they all of a sudden WILL make arrests in schools. Government agencies tend to not go out of their way to piss people off. Conducting an immigration raid in a school would get a lot of bad press.
Furthermore, anytime there is an arrest or a raid, there is the possibility of something going wrong. It’s one thing if something goes wrong on the street, but quite another thing for something to go wrong in a school surrounded by children. So, it’s still a low probability that ICE and the Border Patrol will suddenly start surging into schools arresting your friends.
The bad news is that it may be a low probability…but it’s not a zero probability.
And that’s enough to cause a lot of fear among parents and students. This is true of undocumented parents with citizen children, or parents of undocumented children. It’s also true for parents of color who might be mistaken as being undocumented. To expand this, even students who are citizens are impacted because they do not want to see their friends and peers arrested. A criticism of this policy is that it subsumes whole communities in fear…and students who are afraid do not learn as well.
Yeah! It’s pretty scary! So, what do we do?
Because of this policy, your school is likely scrambling to figure out the protocols that they will use should immigration enforcement show up at the schoolhouse door. Different districts will come up with different policies. Some districts have expressed a willingness to resist. Most will comply. The truth is that there is little that a school can do legally when an officer or agent shows up with a valid warrant or judicial order. It’s a good idea to contact your local school officials, check their websites, for the exact policies that they will have in place.
In many cases these policies will be put up for public comment. If you can be at those meetings, I suggest being there and making your voices heard. You do not have to be eighteen to speak at public meetings. You can also reach out to your school board members. Again, you don’t have to be eighteen to do this.
That’s the limit of control you have over policy and how your school will deal with law enforcement.
But you do have significant control over how YOU deal with law enforcement. This is the hard part. Be real. Close your eyes and imagine how you would respond if an ICE agent enters your school and pulls you aside. He may be a big man with armor and guns on his side. He has a badge. Realistically, you are going to be intimidated.
The first thing you need to do is control your breathing. By focusing on your breathing you can slow your heart rate, slow the release of stress hormones, and remain calm. Remaining calm is the secret to every bit of advice that follows. Whether you are a citizen or not, you have rights when confronted by law enforcement. Staying calm and keeping your wits about you is the first step to dealing with this situation.
You also have to know that the officer or agent knows this. He or she would much rather you be intimidated, because it’s easier for them to get what they want from you. Understand that the officer and agent are not there for your benefit. They have a job to do, and talking to you is the means by which they want to do that job. You have to decide if you want to cooperate or not.
Once you have yourself under control, you can proceed. You’ve been stopped by an immigration official, or any law enforcement. They say they want to ask you some questions. Your first response is, “am I free to go?”
If the answer is yes, then you have a choice. You can remain and answer the questions. That’s up to you. Every single lawyer you will ever encounter in your life4 will tell you same thing. If you are free to go…go. It doesn’t matter if you know know know that you have done nothing wrong and none of your friends have done anything wrong. Anything you say, whether you are under arrest or not, can be used against you later. If you are free to go, politely go.
However, the answer may be, “No. You are not free to go.”
At that point, you are being detained.5 You may not be under arrest, but you are being detained, and being detained comes with certain rights. Most importantly, you have the right to remain silent. To exercise this right you must be explicit. “I wish to exercise my right to remain silent.”
Now there’s a conflict of priorities. The officer or agent wants you to answer questions. They are empowered to say pretty much anything to get you to answer those questions. “You’re not under arrest. I just have some questions. Can’t you help me out?”
Your goal is to remain silent. It is exceedingly difficult to do under pressure. Many officers and agents are specially trained to get you to answer questions. They know how to word things. They know the buttons to push. They do this for a living. You do not get interrogated for a living…so you are at a disadvantage.
You next goal is to get an adult in the room who is there to protect your interests. Your principal or assistant principal may like you very much…but they are not there in your interests. They are responsible for the school, not you. The only people you know will have your interest at heart is your parents, or close family, and your lawyer. Of that group…your lawyer is optimal because protecting you is what they do for a living.
So, the next thing you say is, “I want my parents.6 I want a lawyer.” Keep it simple. “I want my parents. I want a lawyer.” When you feel you have to say something, say, “I want my parents. I want a lawyer.”
Unfortunately, this may be where the pressure starts. The officer or the agent is allowed to lie to you to get you to cooperate. “Well, I’ve already talked to all of your friends, and they have a lot to say about you. I’m just trying to get your side of the story.”
“I want my parents. I want a lawyer.”
“You know, this whole thing can be over in just a few minutes if you answer my questions. Otherwise, you’re going to be here for hours.”
“I want my parents. I want a lawyer.”
“I can lock you up for not cooperating.”
“I want my parents. I want a lawyer.”
This sounds easy. It’s not. It will be like a pressure cooker. You may consider that it would be a lot easier if you just answered their questions. And that’s a choice you can make within your rights. But you only have control if you remain silent. Once you start answering questions, officers and agents can use that information however they want.
Once your parents and/or a lawyer arrive, assuming the officer/agent did not end the interrogation, listen to what they have to say. It’s possible that the lawyer might tell you to answer the questions…not likely, but possible.
If you do decide to answer questions, only answer the things you know about. Do not speculate. Do not guess.
“Did you see Jose at the fair?”
“Yes.”
“Why do you think he was there.”
“I don’t know.”
“What was he doing.”
“He was in line for food.”
“Was he getting food for anyone else?”
“I don’t know.”
Keep your answers short, concise. Speak only to the question. If asked if Jose was at the fair, “yes” or “no.” Don’t add anything beyond the question. For instance, “Yeah, I saw Jose. He was there with his brother and girlfriend.” The officer did not ask about the brother or girlfriend…but now they will.
It’s also important to understand that if you are calm, there is no reason for an officer to put their hands on you. The more you escalate, the more the officer or agent will escalate. You can count on it. They may even try to get you to escalate. Don’t fall for it. There are instances in which they may cuff you “for your own safety.” Do not resist. Comply. At that point, consider yourself under arrest, even if the officer or agent says you are not.
I’m sorry that I had to write this post. I hope you don’t need it. But there is a possibility that you might. If so, don’t be satisfied with reading this post and thinking that you are now prepared to take on ICE all by yourself. You are not. The best way to get this stuff down is to practice it. Role play with your parents, or your friends. Even in front of your mirror if that’s all you have. It may feel silly, but going through the process over and over again increases the likelihood that you will remain calm, and you will keep yourself on-script.
A note to teachers: If at all possible, do not leave a child to face interrogation alone. You may not have any choice, but you can fight like hell to advocate for your kids. Think about if it were your child.
Good luck to you all.
Other Sources
Notes
- At this point here’s the comment I often get during these discussions. “They crossed the border illegally…that’s a crime. So, that means they are ALL criminals.” Eh. That’s an argument with some merit. Law enforcement agencies usually focus on what are called Index Crimes. Illegally entering the United States is a crime, but it’s not an index crime. For instance, gambling may be a crime where you live, but it will be treated differently because it is not an Index Crime. This is where priorities come into play. ↩︎
- Throughout this piece I will use the term “undocumented immigrants” rather than “illegal immigrants” or “illegal aliens.” This is a bias on my part. The thought that someone is illegal just for being from another country without the appropriate paperwork is an idea that I find distasteful. Opinions on this differ. ↩︎
- Whether or not President Biden was “lax” on enforcement is a matter of debate. That we did have a significant crisis at the border with a disproportionate number of people wanting to cross is a fact. The debate is on the best way to handle this crisis. Some approved of Biden’s approach. Most did not. ↩︎
- I’m not a lawyer…but I’ve yet to meet one or experience any who give different advice. ↩︎
- Also, if the officer is holding your ID…you are being detained. Once they hand the ID back you can ask if your are free to go. ↩︎
- This gets complicated if your parents are undocumented. Regardless, you want your lawyer. ↩︎
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