Maine has begun bracing for stepped up immigration enforcement.
On Wednesday, an anonymous law enforcement source told the Bangor Daily News that U.S. Immigration and Customs Enforcement plans to move more resources into the state.
Lewiston Mayor Carl Sheline went public with his concerns about a potential surge of ICE agents in the city on the Androscoggin River. Shortly after that, Portland Mayor Mark Dion issued a statement warning about a looming ICE operation in the Forest City as early as next week.
Then Gov. Janet Mills released a three-minute video warning ICE agents that their aggressive tactics, as seen in Minneapolis, are “not welcome” in Maine.
Those public statements come amid the federal crackdown in Minneapolis after nearly 100 people have been prosecuted there for welfare and Medicaid fraud centering on the area’s Somali community. Similar allegations have been leveled against a Maine immigrant health provider also involving the state’s Somali community. Most of the Somalis in Maine have acquired citizenship since first arriving in the early 2000s or were born here. Both Lewiston and Portland have large Somali populations.
The Minneapolis crackdown has spurred unrest there, particularly after the death last week of 37-year-old Renee Good during an encounter with ICE agents.
ICE has faced mounting criticism over the past year for its tactics in places like Minneapolis, Los Angeles and New Orleans.
With a potential ICE operation coming to Maine, here’s what you need to know about your rights if you should cross paths with agents here.
What is ICE?
ICE was established in 2003 following the creation of the U.S. Department of Homeland Security after the Sept. 11 terrorist attacks, according to the Congressional Research Service.
It is a successor agency to the former U.S. Immigration and Naturalization Service, whose duties are now delegated to ICE and two other agencies — U.S Customs and Border Protection and U.S. Citizenship and Immigration Services.
Under U.S. law, ICE is charged with detaining and arresting people suspected of being in the country illegally.
How is ICE different from Border Patrol?
Both agencies have things in common, such as enforcing immigration laws. But the key difference is that Border Patrol — a unit of U.S. Customs and Border Protection — is restricted to doing so at or within the so-called border exclusion zone (more on that below), while ICE can operate anywhere within the country. So you’re likely to encounter both within Maine.
What is the ‘border exclusive zone’?
All of Maine exists within something known as the “border exclusion zone,” which extends 100 miles from the U.S. border. That has generally given an agency like U.S. Border Patrol authority to establish road blocks to conduct warrantless searches for people potentially in the country illegally or drug smugglers. Border Patrol has conducted such operations here as recently as 2019 in Aroostook County and 2018 in Penobscot County.
That’s led some legal scholars to dub this as a “Fourth Amendment free zone,” referring to the prohibition against unreasonable searches and seizures under the U.S. Constitution’s Fourth Amendment. Particularly as 2 in 3 Americans live within 100 miles of the border.
(Border Patrol does need to demonstrate probable cause or obtain a warrant for more targeted stops.)
Courts have placed limitations on immigration enforcement within the border exclusion zone, such as racial profiling. But that changed last year with a U.S. Supreme Court decision temporarily allowing ICE agents to use factors such as race, whether someone speaks Spanish or is outside a Home Depot as grounds for detaining and questioning them about their immigration status.
Do ICE agents need to identify themselves?
U.S. law requires them to identify themselves as immigration enforcement agents as soon as “practical and safe.” But the widespread use of masks by ICE agents has been seen as potentially violating this rule, and Trump administration officials have defended the practice.
Does ICE need a warrant to detain or arrest someone?
Yes.
ICE agents must have a signed warrant in order to arrest or detain someone. But an ICE warrant — properly called an “administrative warrant” — isn’t the same as a criminal warrant used by police.
First, ICE agents do not need a judge to sign such a warrant unlike local police who seek to arrest you for suspected criminal activity. Instead, a litany of immigration officials, including ICE agents themselves, can sign an administrative warrant to detain a person. Since a judge hasn’t reviewed or issued the warrant, it doesn’t give ICE agents the same authority that a criminal warrant gives local police.
The courts have upheld that the Fourth Amendment protections extend to even those living in the country illegally. So agents need to establish “probable cause” that someone is in the country illegally before signing that warrant.
But probable cause isn’t inviolable, and there are circumstances under which ICE can arrest someone without a warrant. Under U.S. law, ICE agents can arrest someone without a warrant if they have “reason to believe” that person is “likely to escape before a warrant can be obtained.” Courts have upheld that as consistent with probable cause exceptions under the Fourth Amendment.
Can ICE enter my home?
No.
ICE’s administrative warrants do not give agents authority to search or enter your home without your consent. That’s because their warrants aren’t signed and issued by either a state or federal judge. Their warrants may be signed by an immigration judge or even just another agent.
You may refuse to comply with the administrative warrant and to ask the agents to leave your property, according to the National Immigration Law Center.
While the border exclusion zone does dilute some protections under the Fourth Amendment, it generally doesn’t permit immigration officers to enter someone’s home.
Gloria Contreras Edin, an immigration attorney, told Minnesota Public Radio this week that people don’t need to open the door, even if there is still a screen door separating the interior of your home from the outside, if ICE agents come knocking.
You should then ask them whether they have a warrant from a judge, and if so, to slide it under the door, Edin said.
If ICE agents enter illegally, Edin urges that you document all interactions.
What about public spaces?
ICE agents can operate without a warrant in public spaces with some exceptions.
The past practice has been to avoid operating in “sensitive areas,” such as churches, hospitals (with the exception of patient rooms, unless they have a judicial warrant) and schools. That was later expanded to include “protected areas,” such as playgrounds, day care centers and homeless shelters.
However, the Trump administration rescinded that policy early last year. Recently, ICE agents reportedly have been entering hospitals in the Twin Cities.
Do I have to answer ICE agents if questioned?
You have the right to remain silent under the Constitution’s Fifth Amendment even during interactions with ICE agents. You also have the right to request a lawyer.
Unlike local police, ICE agents do not have to inform you of your right to remain silent and to have a lawyer present — better known as your Miranda rights, stemming from a 1966 Supreme Court decision. That’s due to the fact that ICE agents are engaged in administrative and civil enforcement of immigration laws. So Miranda isn’t triggered.
The Supreme Court has ruled that it isn’t a violation of the Fourth Amendment for law enforcement, such as ICE agents, to “merely” question you in a public space.
Do my local police cooperate with ICE?
The short answer is “no”; the long answer, “it depends.”
The courts — including the Supreme Court — have recognized that U.S. law limits the role of local police in enforcing immigration laws, absent a cooperative agreement between ICE and, say, the Bangor Police Department.
Last year, three Maine police departments — Wells, Monmouth and Winthrop — withdrew applications to or pulled out of agreements to cooperate with ICE amid strong community pushback. Other communities, such as Rockland, have approved ordinances prohibiting municipal employees from cooperating with ICE without a court order.
In December, Mills, a Democrat running for the U.S. Senate, allowed a bill to become law, without her signature, to restrict how state, county and local police work with ICE.
Under that bill, which became law in January, police cannot investigate, interrogate, detain, detect, stop, arrest or search you in order to enforce immigration law. Police also are prohibited from asking you about your immigration status or handing you over to ICE without a signed court order or criminal warrant.
The bill does, however, allow police to work alongside ICE if it is related to a criminal investigation.
Top legislative Republicans criticized that law Thursday as “handcuffing” local police from working with federal immigration authorities.
Additionally, Mills has signed an executive order repealing a 2011 one from her predecessor, Republican Gov. Paul LePage, that called for the state to offer “enhanced cooperation” for immigration enforcement.
Can I record and observe ICE agents?
Yes.
It is your constitutional right to observe and document any public official, including immigration and border officials.
That’s been a common practice in recent years at school board meetings, and there are so-called First Amendment auditors who record interactions with public officials.
But advocates urge you to exercise caution when recording or livestreaming any encounters with ICE agents. For example, advocacy groups recommend you disable biometric locks on your phone and instead use a passcode and to be mindful that publicly sharing any videos may risk your privacy or that of someone being questioned by immigration agents.
Electronic devices also are more vulnerable to searches within the border exclusion zone.
You also must not interfere with law enforcement, which could potentially result in legal consequences or put you in harm’s way.
Last fall, the Maine Immigrant Rights Coalition and People’s Coalition for Safety and Justice launched the Maine ICE Watch Hotline (207-544-9989) for Mainers to report the presence of ICE or Border Patrol within their communities and to connect to resources and support.