Is There Anywhere I’m Safe From an ICE Arrest?

Immigration and Customs Enforcement (ICE) is empowered to identify and apprehend people who do not have permission to be in the United States. There is no absolutely sure "safe" place where ICE is legally prohibited from carrying out enforcement operations (such as arrests, interviews, and searches).

However, ICE has, over the years, implemented policies concerning whether it will carry out enforcement operations at sensitive locations; places where making arrests would be inhumane or against broader societal interests, such as churches, hospital, or emergency shelters.

ICE's most recent memo on this topic was issued October 27, 2021 under the Biden Administration, and supersedes harsher policies carried out during the Trump Administration.

Which Places Does ICE Consider Protected Under Its Stated Policies?

Under ICE's October 2021 memo, examples of types of locations that it deems sensitive and in need of protection against enforcement actions, whether at or near the facility itself include (in summary):

• schools for children, as well as vocational or trade schools, colleges, and universities
• medical or mental healthcare facilities, such as hospitals, doctor's offices, health clinics, vaccination or testing sites, urgent care centers, facilities serving pregnant women, or community health centers.
• places of worship or religious study
• social service providers, such as crisis centers, shelters for the homeless, disabled, or domestic violence or other victims, child advocacy centers, supervised visitation centers, family justice centers, community-based organizations, drug or alcohol counseling and treatment facilities, or food banks or pantries distributing food or other essentials to the needy
• disaster or emergency response venues, such as along evacuation routes
• place where a funeral, graveside ceremony, rosary, wedding, or other religious or civil ceremonies or observances take place, and
• parades, demonstrations, or rallies.

The memo also emphasized that this list is not meant to be complete, and whether an area should be "protected area" requires consideration of what types of activities take place there, the importance of those activities to the well-being of people and their communities, and potential impacts that making arrests and so forth would have on people's future willingness to go to that place. The key concern is meant to be whether ICE's enforcement actions would block people's ability or willingness to access essential services or take part in essential activities.

What Exceptions Does ICE Make Concerning Protected Enforcement Areas?

Note that ICE's list above does not mention courthouses as protected locations. In the past, it has not been uncommon for ICE to arrest or stop someone outside of a courthouse or even in the courthouse itself. Many states and cities have asked ICE to stop doing this; however the practice has persisted.

Further explanation and exploration of the issues at play was provided in a memo issued April 27, 2021, called "Civil Immigration Enforcement Actions in or Near
Courthouses." According to this memo, ICE enforcement actions may be taken in or near a courthouse if they involve:

• a national security threat
• imminent risk of death, violence, or physical harm to any person
• hot pursuit of an individual who poses a threat to public safety or (even it there's no hot pursuit) no safe alternative location for enforcement action exists or is practical and the action has received advance approval from higher-ups, or
• imminent risk of destruction of evidence material to a criminal case.

For what it's worth, the ICE memo says that they'll try to make the arrests away from public view and only after the close of court proceedings.

Beyond courthouses, the later October 2021 memo says that the same exceptions can be made concerning other locations on its protected list.

Does ICE Actually Follow Its "Sensitive Locations" Policy?

Unfortunately, there have been many reports over the years of ICE and CPB (Customs and Border Protection) violating their sensitive locations policy by apprehending people at hospitals, schools, and places of worship. And the existing policy concerning sensitive locations was basically ignored during the Trump Administration.

However, the Biden Administration is adhering more closely to the notion of setting out enforcement priorities rather than just arresting anyone who is an easy mark. Nevertheless, its October 2021 memo reminds the public that the "guidance is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter." Translated from legalese, that means, "If we get it wrong, don't sue us."

What Rights Do I Have If ICE Stops Me or Approaches Me in Public?

Since it is possible that immigration enforcement agents will approach you in public (even if you find yourself in a so-called protected location), it's important to be aware of your rights.

The U.S. constitution affords you certain rights even if you are undocumented. Try to remain calm and not panic.

You have the right to ask the ICE officer whether you are free to leave. If the officer says you are not free to leave, you have a right to remain silent. If you choose to remain silent, you should say to the officer clearly and loudly that you wish to remain silent.

You may refuse to show identity documents that say what country you are from; however, you should never lie or show false documents such as a fake green card or Social Security card.

If ICE has not arrested you, you do not have to consent to a search of your person or your belongings; however, an ICE agent who believes you have a weapon may pat you down.

If ICE arrests you and takes you into custody, you have the right to contact and speak to an attorney. You do not have to sign any papers until you speak with an attorney. The U.S. government will not pay for the attorney's services, however.

You can also ask the immigration officer for a list of pro bono (free or low-cost) attorneys. You also have a right to contact your home country's consulate—it might be able to offer some help, at least with minor administrative things such as locating your identity documents.