WARRANTS AND SUBPOENAS

N ATIONAL I MMIGRATION L AW C ENTER | WWW. NILC. ORG

LOS ANGELES (Headquarters)

3450 Wilshire Blvd. #108 – 62

Los Angeles, CA 90010

213 639-3900

213 639-3911 fax

WASHINGTON, DC

P.O. Box 34573

Washington, DC 20043

202 216-0261

202 216-0266 fax

WARRANTS AND SUBPOENAS

What to Look Out For and How to Respond

SEPTEMBER 2020

he three immigration agencies of the U.S. Department of Homeland Security (DHS)

— U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border

Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS) — have, in

recent years, used increasingly aggressive tactics to intimidate immigrants and coerce them

into cooperating with federal immigration enforcement. Understanding the differences

between a subpoena and a warrant — documents that immigration agencies rely on as part

of their tactics to coerce cooperation — is critical and enables people to exercise their rights

in an informed manner. This fact sheet provides community members and advocates

clarification on

• immigration enforcement power and immigration subpoena power

• how to distinguish between judicial warrants and subpoenas and their administrative

immigration counterparts

• what to do in response to receiving an immigration warrant or immigration subpoena

This fact sheet also includes a case study about Liberty High School in New York City,

highlighting how schools, advocates, and lawyers can intervene to block immigration

subpoenas and keep immigrant communities safe.

Immigration Enforcement and Subpoena Powers Are Limited by the

Fourth Amendment

The three immigration agencies — ICE, CBP, and USCIS — share the same immigration

enforcement power and the same immigration subpoena power. ICE is responsible for

immigration enforcement in the interior of the U.S. while CBP is the agency responsible for

enforcement at or near the nation’s borders as well as functional equivalents of the border.

In contrast, USCIS’s main function is to process and make decisions about immigration

relief, immigration status, and citizenship–related applications. USCIS does not, nor is it

authorized to, engage in the types of immigration enforcement that ICE and CBP do.

ICE and CBP’s power to enforce immigration law —referred to in this fact sheet as

“immigration enforcement power” — is limited by our Fourth Amendment constitutional

right to be free from unreasonable searches and seizures of persons or objects.

Under the

Functional equivalents of the border include ports of entry and international airports.

U.S. CONST. amend. IV. (“The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated.”).

N ATIONAL I MMIGRATION L AW C ENTER | WWW. NILC. ORG

Warrants and Subpoenas: What to Look Out for and How to Respond PAGE 2 of 10

Fourth Amendment, a search or seizure against you is unreasonable if you had a reasonable

expectation of privacy in the area searched or items seized.

You had a reasonable

expectation of privacy if, at the time of the search, (1) you had an actual (subjective)

expectation of privacy in the place or things searched, and (2) your expectation was one that

society recognizes as (objectively) reasonable.

The prime example of a place where a person has a reasonable expectation of privacy is

their own home. Our legal system acknowledges that people would expect privacy in their

own homes and that society would recognize such an expectation as a reasonable one.

Conversely, our legal system does not find that a person has a reasonable expectation of

privacy in public areas or places accessible by members of the public.

The Fourth Amendment also places restrictions on “immigration subpoena power,”

which is the power immigration agencies have to gather physical evidence or testimony from

individuals for their immigration investigations. Under the Fourth Amendment, to be legally

valid an immigration subpoena must not be unreasonable. This means that immigration

subpoenas, which are formal written requests for information or witness testimony, must be

tailored in scope, relevant, and clear in describing what specific information is being sought,

why the request is being made, and for what purpose.

Thus, the Fourth Amendment functions as an important limit on both immigration

enforcement power and immigration subpoena power. Still, immigration agencies continue

to test the limits of Fourth Amendment protections by seeking new ways to conduct

enforcement activity and compel people to hand over sensitive information. Their most

common forms of doing so are through the increased use of immigration warrants and

immigration subpoenas and by inducing consent by presenting warrants or subpoenas to the

people they’re targeting for enforcement.

Key Differences between Judicial Warrants, Immigration Warrants,

Judicial Subpoenas, and Immigration Subpoenas

Terminology Basics

Immigration warrants and immigration subpoenas are administrative warrants and

administrative subpoenas, respectively, given that the issuing parties — ICE, CBP, and USCIS

— are administrative agencies. These terms encompass any warrant or subpoena issued by

any of the three agencies — e.g., “immigration warrant” encompasses ICE warrants and CBP

warrants, and “immigration subpoena” covers USCIS, ICE, and CBP subpoenas. To

distinguish between judicial warrants, immigration warrants, judicial subpoenas, and

immigration subpoenas, the basic terms and distinctions between judicial and administrative

documents must be carefully defined and understood:

Katz v. United States, 389 U.S. 347 (1967).

Under the Fourth Amendment’s reasonable requirement standard for administrative subpoenas, an

immigration subpoena may not be overbroad in scope, irrelevant and improper in purpose, or ambiguous

such that compliance is unreasonably burdensome. See v. City of Seattle, 387 U.S. 541, 544 (1967) (“[T]he

subpoena [must] be sufficiently limited in scope, relevant in purpose, and specific in directive so that

compliance will not be unreasonably burdensome”).

N ATIONAL I MMIGRATION L AW C ENTER | WWW. NILC. ORG

Warrants and Subpoenas: What to Look Out for and How to Respond PAGE 3 of 10

• A judicial warrant is a formal written order authorizing a law enforcement officer to

make an arrest, a seizure, or a search. A judicial warrant is issued by a judicial court.

Courts that issue judicial warrants include both state and federal courts, such as a

“Superior Court of California” or a “U.S. District Court,” and a judicial warrant is

signed by a judge or magistrate judge. Furthermore, judicial warrants must be

complied with, and there are serious consequences for refusing to comply with a

judicial warrant. N

OTE: A warrant signed by an immigration judge is not a judicial

warrant.

• An administrative warrant is a formal written document authorizing a law

enforcement officer from a designated federal agency, such as an ICE agent from DHS,

to make an arrest or a seizure. An administrative warrant is issued by a federal

agency such as DHS and can be signed by an “immigration judge” or an “immigration

officer.”

Unlike a judicial warrant, an administrative warrant does not authorize a

search. Therefore, an ICE agent who has only an administrative warrant may not

conduct a search based on the warrant, though, in certain circumstances, the

administrative warrant would authorize the agent to make a seizure or arrest.

Judicial Warrant Administrative Warrant

Issuing entity?

A judicial court; federal court judge or

magistrate; state court judge or

magistrate

Administrative agencies such as DHS,

USCIS, ICE or CBP; immigration judge or

immigration court

Compliance

required?

Yes — always, if it is a valid judicial

warrant

Depends. An administrative warrant

does not authorize a search, but, in

some circumstances, it may authorize a

civil arrest or seizure.

• A judicial subpoena is a formal written order directed at a person to compel

(1) his/her/their testimony as a witness in court or in a deposition or (2) the

production of evidence under a penalty for failure to comply. A judicial subpoena is

issued by a judicial court. Courts that issue judicial subpoenas include both state and

federal courts. Judicial subpoenas must be complied with, and there are serious

consequences for refusing to comply with a judicial subpoena. However, it’s possible

that not everyone who works for or is associated with a particular entity is authorized

to accept a judicial subpoena directed at the entity — for example, not all employees of

a city, school district, or business are authorized to accept judicial subpoenas issued to

that city, school district, or business. Therefore, it is important to check your entity’s

internal employment policies to understand how to respond to and comply with a

judicial subpoena. N

OTE: A subpoena signed by an immigration judge or issued by an

immigration court is not a judicial subpoena (see footnote 5).

An immigration judge (IJ) presides exclusively in immigration court over administrative deportation

proceedings, and an IJ’s authority to issue administrative warrants and administrative subpoenas exists only

in the immigration court context. See 8 C.F.R. § 1240.41. Warrants and subpoenas signed by or otherwise

issued by an immigration judge are not judicial warrants or judicial subpoenas.

“Immigration officer” is a term that designates employees and agents of U.S. Immigration and Customs

Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and U.S. Customs and Border

Protection (CBP). See INA § 101(a)(18).

N ATIONAL I MMIGRATION L AW C ENTER | WWW. NILC. ORG

Warrants and Subpoenas: What to Look Out for and How to Respond PAGE 4 of 10

• An administrative subpoena is a formal written document directed at a person to

compel (1) his/her/their testimony as a witness in an investigation or (2) the

production of evidence. However, an administrative subpoena is issued by a federal

agency such as DHS and can be signed by an “immigration judge” or an “immigration

officer.” Unlike a judicial subpoena, there is no immediate requirement to comply

with an administrative subpoena, even if the issuer was an “immigration judge”;

penalties for failure to comply may occur only if the issuer takes additional steps to

enforce the subpoena in federal district court.

Judicial Subpoena Administrative Subpoena

Issuing entity?

A judicial court; federal court judge or

magistrate; state court judge or

magistrate

Administrative agencies such as DHS,

USCIS, ICE or CBP; immigration judge or

immigration court

Compliance

required?

Yes — always if it is a valid judicial

subpoena

No. Compliance is not required unless a

separate and additional judicial court

order requires compliance with the

subpoena.

Distinguishing Between a Warrant and a Subpoena Generally

Because compliance with a either a warrant or a subpoena requires different action steps

and different time/deadlines apply to each, upon receiving or being served with a document

from ICE or CBP or USCIS, it is important to determine (1) what the received/served

document actually is and (2) whether the document is judicially enforceable such that

compliance with it is required. For guidelines on what your rights are and what to do if ICE

or immigration authorities come to your home or business with one of these documents, see

“How to Respond if ICE, CBP, or USCIS Comes to Your Door with a ‘Warrant’ or

‘Subpoena,’” below.

To determine what type of document you received, first scan the document for the word

“warrant” or “subpoena”; usually, the document will be titled or labeled as one or the other.

(Samples of each of these documents are included as appendices to this fact sheet.) Also,

skim through the document to confirm whether its content matches what the document

claims to be in its title. If the document seems to generally authorize the officer or agent from

ICE or CBP to conduct a search or make an arrest, the document is likely a warrant. If the

document says that a person must appear in court at some later date to give testimony as a

witness or that a person must produce or hand over certain papers, forms, materials,

information, etc., then the document is likely a subpoena.

After determining whether the document is either a warrant or a subpoena, try to

ascertain whether the document is a judicial warrant or subpoena that must be complied

with or whether it is an administrative warrant or subpoena, which is not immediately

enforceable.

Distinguishing Between a Judicial Warrant/Subpoena and an Immigration

Warrant/Subpoena

Judicial Warrant v. Immigration Warrant. An immigration officer from ICE or

CBP may not enter any nonpublic areas — or areas that are not freely accessible to the public

N ATIONAL I MMIGRATION L AW C ENTER | WWW. NILC. ORG

Warrants and Subpoenas: What to Look Out for and How to Respond PAGE 5 of 10

and hence carry a higher expectation of privacy — without a valid judicial warrant or

consent to enter. An immigration warrant is not the same as a judicial warrant; an

immigration warrant does not authorize a search of nonpublic areas. If an ICE or any other

immigration agency officer comes to your address demanding entry to search your premises

or seeking to obtain evidence and the officer has only an immigration warrant, you may

refuse the officer entry and refuse to comply with the warrant because it does not grant the

officer authority to enter or conduct a search.

Thus, if immigration authorities or other law enforcement agents present you with a

warrant, it is crucial to check for the following:

Judicial Warrant (see Appendix A) Immigration Warrant (see Appendix B)

To be valid, a judicial warrant must:

• be issued by a judicial court

• be signed by a state or federal judge or

magistrate

• state the address of the premises to be

searched — make sure the stated address is

your address or specifically pertains to you

• be executed within the time period specified

on the warrant

If the warrant includes all the above, then it is a

valid judicial warrant and you must comply.

However, if the judicial warrant is missing any of

the above, lists a different address, or is being

executed after the date specified on the warrant,

then it likely is not valid, and you may (a) refuse

to comply and (b) ask the agents to leave.

In contrast, an immigration warrant:

• is issued by a DHS agency (look for a DHS seal,

label, and/or the actual form number, i.e., DHS

Form I-200, “Warrant for Arrest”; or Form

I-205, “Warrant of Removal/Deportation”)

• is signed by an immigration officer or

immigration judge

• bears a title that will contain the word “Alien”

• states that the authority to issue the warrant

comes from immigration law, such as the

Immigration and Nationality Act — and does

not state that the issuing authority is a court

If the warrant has any of the above characteristics,

it likely is an immigration warrant and thus does

not authorize the agent(s) to enter the premises.

You may (a) refuse to comply with the warrant and

(b) ask the agents to leave.

Judicial Subpoena v. Immigration Subpoena. An immigration subpoena is not

the same as a judicial subpoena. An immigration officer from ICE, CBP, or USCIS may not

demand compliance with an immigration subpoena unless it is accompanied by an order

from a U.S. district court requiring that it be complied with. If an ICE agent or any other

immigration officer serves you with an immigration subpoena asking you to appear as a

witness or to produce certain documents, you do not have to honor the subpoena or comply

with it; you may refuse to respond. Thus, if immigration authorities or other law enforcement

agents present you with a subpoena, it is crucial to check for the following:

Judicial Subpoena (see Appendix C) Immigration Subpoena (see Appendix D)

To be valid, a judicial subpoena must:

• be issued by a judicial court

• be signed by a state or federal judge or

magistrate

An immigration subpoena:

• is issued by DHS (look for a DHS seal, label,

and/or the actual form number, i.e., DHS Form

I-138)

• is signed by an immigration officer or an

immigration judge (look for “CBP Official,” “ICE

N ATIONAL I MMIGRATION L AW C ENTER | WWW. NILC. ORG

Warrants and Subpoenas: What to Look Out for and How to Respond PAGE 6 of 10

• state the address of the target of the

subpoena — make sure the stated address is

your address or specifically pertains to you

If the subpoena includes all the above, then it is a

valid judicial subpoena and you must comply with

it. However, if the subpoena is missing any of the

above elements or is directed toward a different

address, then it likely is not a valid judicial

subpoena and, thus, you may refuse to comply

with the subpoena.

Official,” or “USCIS Official,” or a similar

phrase)

• bears a title such as “Immigration Enforcement

Subpoena” or something to that effect

• states that the authority to issue the subpoena

comes from immigration law, such as the

Immigration and Nationality Act (look out for a

citation to 8 U.S.C. § 1225(d), 8 C.F.R. § 287.4,

or a reference to “U.S. immigration laws”

If the subpoena shown to you has any of the

above characteristics, it likely is an immigration

subpoena and thus is not enforceable on its own,

unless a court orders you to comply with it. You

may refuse to comply with the subpoena.

If you refuse to comply with an immigration subpoena because it is not enforceable on its

own (see the table immediately above), the entity that issued the subpoena — either an

immigration agency (ICE, CBP, or USCIS) or an immigration judge — can seek an order from

a U.S. district court compelling you to comply with the subpoena.

This is called a subpoena

enforcement action, and the law requires a party initiating any action in U.S. district court to

notify the party against whom the action was initiated. If you receive notice or are served

with papers that state that a subpoena enforcement action has been initiated against you, you

can fight back in court and challenge the subpoena for violating the Fourth Amendment’s

limits on immigration subpoena power, but it’s best to consult first with an attorney about

your case. If you succeed in your challenge of the immigration subpoena, the

court will throw it out. But if the immigration agency succeeds in the case and

obtains a court order, the immigration subpoena becomes enforceable against

you. At that point, you must comply with the subpoena, since failure to obey a court order

may subject you to punishment for being in contempt of court.

How to Respond if ICE, CBP, or USCIS Comes to Your Door with a

“Warrant” or “Subpoena”

Below are guidelines for how to respond if immigration agents approach your residence

with a “warrant” or “subpoena.”

• Consent (Don’t!). Don’t open your door. Opening your door when a law

enforcement officer comes to it can be construed as your having consented to a search

and seizure that is permissible under the U.S. Constitution. Under the Fourth

Amendment, law enforcement and immigration enforcement officers may not enter

private areas unless they have either a valid judicial warrant or the consent of a person

who is authorized by the entity occupying those private areas to allow people to enter

them. If immigration authorities come to your door without a warrant and you open

the door and they search your house, they will argue that their search was lawful

Id. (“to that end may invoke the aid of any court of the United States”).

INA § 235(d)(4)(B).

N ATIONAL I MMIGRATION L AW C ENTER | WWW. NILC. ORG

Warrants and Subpoenas: What to Look Out for and How to Respond PAGE 7 of 10

because you “consented” to it by opening the door. Therefore, if they come to the place

you live with a warrant, subpoena, or some other document, ask them to slip it under

the door or hold it up to a window. If you can, take a photo of the document.

• Careful review of document. If immigration authorities bring a document they

claim is a warrant or subpoena, verify that it is indeed what they claim it to be and not

some other form or document. Next, assess whether the document is a valid, judicially

enforceable one. For example, if immigration authorities bring a subpoena, verify

whether it is a judicial subpoena or an immigration subpoena. If the immigration

authorities have a valid judicial warrant or valid judicial subpoena, they may enforce

it. If it’s a valid judicial warrant, this means that the immigration authorities may

enter or search the private areas indicated in the warrant and question anyone

present. Remind all guests, employees, and/or personnel on site that they have the

right to remain silent and refuse to answer any questions.

• Unenforceable documents. Remember, immigration warrants and immigration

subpoenas, on their own, are not enforceable. You are not required to allow an

immigration officer to enter or search your home or premises based on the officer

having an immigration warrant or subpoena. If immigration agents show up at your

door, immediately try to contact a lawyer or a community defense group for support

and advice as you are interacting with the agents. If immigration authorities present

you with an immigration warrant, refuse to honor it, ask them to leave, and do not

open the door. If immigration authorities present you with an immigration subpoena,

do not comply with it: do not hand over requested documents and do not appear as a

witness in their investigation. If, in response, immigration authorities say they will go

get a judicial warrant or, in the case of an immigration subpoena, initiate a subpoena

enforcement action, contact a lawyer. Try to get help from a legal professional before

the judicial warrant is served or before the subpoena enforcement action begins.

• Enforceable judicial warrants. Pay close attention to and document what is

happening during a search. Be ready to object if immigration authorities go beyond

the scope of their authority to search places or seize items specified in the warrant. For

example, if the warrant authorizes a search only of a particular office in your school or

business, immigration agents may not use it as a basis for searching other offices,

classrooms, storage rooms, etc.

• Probable cause. Immigration authorities and other law enforcement officers may

search other private areas and seize materials even without a warrant or outside of

what is specified in a warrant if they have “probable cause” to believe that the search

may reveal unlawful activity. An officer has “probable cause” if the facts and

circumstances justify a reasonable person’s conclusion that unlawful activity (or

evidence of unlawful activity) will likely be found in a particular place.

• Right to remain silent. Plead the Fifth Amendment and remain silent so

immigration authorities cannot use your words against you or coerce you into saying

something. Speak only when you have to in order to state that you object to something

the immigration agents are doing, to assert your rights (“I am exercising my right to

remain silent”),

to refuse consent, or to clarify instructions, such as asking

immigration authorities to slip their document under the door.

www.nilc.org/everyone-has-certain-basic-rights/.

N ATIONAL I MMIGRATION L AW C ENTER | WWW. NILC. ORG

Warrants and Subpoenas: What to Look Out for and How to Respond PAGE 8 of 10

• Legal and community support. Establish a relationship with a local attorney who

can be available for advice and counsel if immigration authorities come to your

address, whether that is your home, school, or place of business. In addition,

memorize the phone number (or hotline number) of a local raids-response network or

community group, or create a team of people whom you can call if immigration agents

show up at your home, school, or workplace. They can help to document what is

happening and follow up afterwards.

CASE STUDY: Liberty High and Lessons Learned in Blocking

Immigration Subpoenas

On Wednesday, July 21, 2010, immigration attorney Lauren Burke received a phone call

from a guidance counselor at New York City’s Liberty High School Academy for Newcomers

(Liberty High) who informed her that the school had just received a subpoena from the

Department of Homeland Security signed by an ICE special agent. Noting that the document

demanded the release of any and all records relating to the contact information, dates of

attendance, and class schedules of then-student O.C., the guidance counselor asked attorney

Burke, who represented O.C. in his immigration and family court matters, for advice on what

to do and how to respond.

Ideally, educators and education advocates would know and exercise their rights

under the law

As recognized under the law:

• An immigration subpoena is not a judicial subpoena or a court order.

• A school may refuse to respond to an immigration subpoena without fearing any

immediate civil, criminal, or legal liability.

• Schools have additional privacy requirements under federal law and may not release

students’ sensitive information freely. The Family and Educational Rights and Privacy

Act (FERPA), 20 U.S.C. section 1232(g), protects the personal information and

records of all students, regardless of immigration status.

What really happened: Educators yielded to the pressure of DHS’s coercive

tactics

After reviewing the document and confirming that it was an immigration subpoena and

not a judicial subpoena, attorney Burke advised the school not to do anything. However, two

days later, on Friday, July 23, 2010, she received a letter from a New York City Department

of Education (DOE) attorney informing her that the DOE, rather than challenging or refusing

to honor the immigration subpoena, would be requiring Liberty High to comply with it on

the following Tuesday, July 27. The DOE, unsure of the law and the legal rights of schools

and educators, yielded to the coerciveness of the immigration subpoena’s language.

Refusal to respond may lead DHS (or ICE or CBP) to initiate a subpoena enforcement action in court so it

can obtain a court order requiring compliance. See note 7, above, and accompanying text.

N ATIONAL I MMIGRATION L AW C ENTER | WWW. NILC. ORG

Warrants and Subpoenas: What to Look Out for and How to Respond PAGE 9 of 10

Attorney Lauren Burke’s response: Leverage legal tools and communications to

block compliance

Having been unable to secure the support of the city’s DOE or the Mayor’s Office —

because each believed it had to comply with DHS’s demands despite not wanting to — Burke

and O.C. had to push back against the immigration subpoena. On Monday, July 26, the day

before the DOE was set to comply with the subpoena, Burke and the Door’s Legal Services

Center sued in U.S. district court to block the immigration subpoena and won an emergency

restraining order against the DOE. The order, a legally enforceable judicial court order,

prohibited the DOE from releasing O.C.’s records and information in violation of FERPA

until the court could hold a full hearing at a later date (September 27). In effect, Burke used

the legal system to block the DOE and Liberty High from complying with the immigration

subpoena. This showed not only that refusal to comply with an immigration subpoena is

permissible under the law but also that it is sometimes required, especially to comply with

overarching federal privacy laws such as FERPA.

Moreover, the New York Times published an article ten days before the Sep. 27 hearing

highlighting O.C.’s case and how immigration enforcement authorities had recently stepped

up their use of immigration subpoenas in an alarming way.

After the article was published,

DHS dropped its investigation of O.C. and abandoned its effort to enforce the immigration

subpoena. The media coverage of O.C.’s case and the Liberty High incident provided a strong

pressure point to uplift and strengthen the legal win — the emergency restraining order — by

shining a light on DHS’s unscrupulous enforcement tactics.

Lessons learned from Liberty High and over the years since 2010

• While the law does not require a recipient of an immigration subpoena to honor or

comply with its demands, if the recipient does not understand the law and chooses to

comply (out of fear, coercion, or affirmative consent), legal advocates, organizers, and

the media can play an important role in pushing back against the subpoena.

• Greater outreach and community education efforts are needed to educate advocates,

educators, service providers, and community members about how to prepare for and

respond effectively to immigration subpoenas and warrants and to other aggressive

immigration enforcement tactics.

• Stronger partnerships between legal advocates and entities such as schools or local

government agencies are necessary to protect immigrant communities and ensure that

DHS, ICE, CBP, and USCIS are held accountable to federal and state laws as well as to

the U.S. Constitution.

• Attempts by DHS or an immigration agency to enforce an immigration subpoena

through the court system can be defeated by involving the public and the media.

Engaging the media, in conjunction with broader communications strategies, is vital

in combatting aggressive immigration enforcement activity.

• Legal action to address aggressive immigration enforcement can take a variety of

forms, including drafting a strongly worded letter or memorandum to the school

district (or local department of education) as well as filing for relief in federal court.

Kirk Semple, “Immigration Agency’s Tactic Spurs Alarm,” New York Times, Sept. 17, 2010,

https://www.nytimes.com/2010/09/18/nyregion/18subpoena.html.

N ATIONAL I MMIGRATION L AW C ENTER | WWW. NILC. ORG

Warrants and Subpoenas: What to Look Out for and How to Respond PAGE 10 of 10

Understanding what type of legal action to file and when to file it is critical to securing

and defending the rights of immigrant students.

• By leveraging the law, legal tools, public advocacy, and media strategies, individuals

and advocates have power to defend and support immigrant communities.

OMMUNITY MEMBERS, ADVOCATES, lawyers, and allies all play a role in keeping our

neighborhoods, schools, worksites, and communities safe from DHS’s increasingly aggressive

enforcement tactics. Understanding the key differences between the various documents that

immigration agencies rely on to coerce compliance with their tactics can act as a critical

intervention, empower individuals to exercise their rights in an informed manner, and

ultimately defend our immigrant communities from government overreach and unlawful

policing.

APPENDICES

Appendix A: Sample Judicial Warrant – AO 93 (Rev. 11/13) Search and Seizure Warrant

Appendix B: Sample Immigration (DHS) Warrant – Form I-200 (Rev. 09/16)

Appendix C: Sample Judicial Subpoena – AO 88B (Rev. 02/14) Subpoena to Produce

Documents, Information, or Objects or to Permit Inspection of Premises in a

Civil Action

Appendix D: Sample Immigration Subpoena – DHS Form I-138 (6/09)

Appendix E: PowerPoint Slides: Judicial Warrants v. Immigration Warrants & Judicial

Subpoenas v. Immigration Subpoenas

AO 93 (Rev. 11/13) Search and Seizure Warrant

UNITED STATES DISTRICT COURT

for the

__________ District of __________

In the Matter of the Search of

)

(Briefly describe the property to be searched

or identify the person by name and address)

Case No.

SEARCH AND SEIZURE WARRANT

To: Any authorized law enforcement officer

An application by a federal law enforcement officer or an attorney for the government requests the search

of the following person or property located in the District of

(identify the person or describe the property to be searched and give its location):

I find that the affidavit(s), or any recorded testimony, establish probable cause to search and seize the person or property

described above, and that such search will reveal

(identify the person or describe the property to be seized):

YOU ARE COMMANDED to execute this warrant on or before

(not to exceed 14 days)

’ in the daytime 6:00 a.m. to 10:00 p.m. ’ at any time in the day or night because good cause has been established.

Unless delayed notice is authorized below, you must give a copy of the warrant and a receipt for the property taken to the

person from whom, or from whose premises, the property was taken, or leave the copy and receipt at the place where the

property was taken.

The officer executing this warrant, or an officer present during the execution of the warrant, must prepare an inventory

as required by law and promptly return this warrant and inventory to .

(United States Magistrate Judge)

’ Pursuant to 18 U.S.C. § 3103a(b), I find that immediate notification may have an adverse result listed in 18 U.S.C.

§ 2705 (except for delay of trial), and authorize the officer executing this warrant to delay notice to the person who, or whose

property, will be searched or seized

(check the appropriate box)

’ for days (not to exceed 30) ’ until, the facts justifying, the later specific date of .

Date and time issued:

Judge’s signature

City and state:

Printed name and title

AO 93 (Rev. 11/13) Search and Seizure Warrant (Page 2)

Return

Case No.: Date and time warrant executed: Copy of warrant and inventory left with:

Inventory made in the presence of :

Inventory of the property taken and name of any person(s) seized:

Certification

I declare under penalty of perjury that this inventory is correct and was returned along with the original warrant to the

designated judge.

Date:

Executing officer’s signature

Printed name and title

Save As...

Reset

Form I-200 (Rev. 09/16)

U.S. DEPARTMENT OF HOMELAND SECURITY Warrant for Arrest of Alien

File No. ________________

Date: ___________________

To: Any immigration officer authorized pursuant to sections 236 and 287 of the

Immigration and Nationality Act and part 287 of title 8, Code of Federal

Regulations, to serve warrants of arrest for immigration violations

I have determined that there is probable cause to believe that ____________________________

is removable from the United States. This determination is based upon:

 the execution of a charging document to initiate removal proceedings against the subject;

 the pendency of ongoing removal proceedings against the subject;

 the failure to establish admissibility subsequent to deferred inspection;

 biometric confirmation of the subject’s identity and a records check of federal

databases that affirmatively indicate, by themselves or in addition to other reliable

information, that the subject either lacks immigration status or notwithstanding such status

is removable under U.S. immigration law; and/or

 statements made voluntarily by the subject to an immigration officer and/or other

reliable evidence that affirmatively indicate the subject either lacks immigration status or

notwithstanding such status is removable under U.S. immigration law.

YOU ARE COMMANDED to arrest and take into custody for removal proceedings under the

Immigration and Nationality Act, the above-named alien.

__________________________________________

(Signature of Authorized Immigration Officer)

__________________________________________

(Printed Name and Title of Authorized Immigration Officer)

Certificate of Service

I hereby certify that the Warrant for Arrest of Alien was served by me at __________________________

(Location)

on ______________________________ on _____________________________, and the contents of this

(Name of Alien) (Date of Service)

notice were read to him or her in the __________________________ language.

(Language)

________________________________________ __________________________________________

Name and Signature of Officer Name or Number of Interpreter (if applicable)

______________

(Printed Name and Title)

SAMPLE

This page left blank on purpose

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT

for the

__________ District of __________

)

Plaintiff

v. Civil Action No.

Defendant

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS

OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION

To:

(Name of person to whom this subpoena is directed)

’

Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following

documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the

material:

Place: Date and Time:

’

Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or

other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party

may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

Place: Date and Time:

The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;

Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to

respond to this subpoena and the potential consequences of not doing so.

Date:

CLERK

OF COURT

Signature of Clerk or Deputy Clerk Attorney’s signature

The name, address, e-mail address, and telephone number of the attorney representing (name of party)

, who issues or requests this subpoena, are:

Notice to the person who issues or requests this subpoena

If this subpoena commands the production of documents, electronically stored information, or tangible things or the

inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before

it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)

I received this subpoena for

(name of individual and title, if any)

on (date) .

’ I served the subpoena by delivering a copy to the named person as follows:

(date) ; or

’ I returned the subpoena unexecuted because:

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also

tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:

Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc.:

0.00

Save As...

Add Attachment

Reset

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)

(1) For a Trial, Hearing, or Deposition. A subpoena may command a

person to attend a trial, hearing, or deposition only as follows:

(A) within 100 miles of where the person resides, is employed, or

regularly transacts business in person; or

(B) within the state where the person resides, is employed, or regularly

transacts business in person, if the person

(i) is a party or a party’s officer; or

(ii) is commanded to attend a trial and would not incur substantial

expense.

(2) For Other Discovery. A subpoena may command:

(A) production of documents, electronically stored information, or

tangible things at a place within 100 miles of where the person resides, is

employed, or regularly transacts business in person; and

(B) inspection of premises at the premises to be inspected.

(d) Protecting a Person Subject to a Subpoena; Enforcement.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney

responsible for issuing and serving a subpoena must take reasonable steps

to avoid imposing undue burden or expense on a person subject to the

subpoena. The court for the district where compliance is required must

enforce this duty and impose an appropriate sanction—which may include

lost earnings and reasonable attorney’s fees—on a party or attorney who

fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required. A person commanded to produce

documents, electronically stored information, or tangible things, or to

permit the inspection of premises, need not appear in person at the place of

production or inspection unless also commanded to appear for a deposition,

hearing, or trial.

(B) Objections. A person commanded to produce documents or tangible

things or to permit inspection may serve on the party or attorney designated

in the subpoena a written objection to inspecting, copying, testing, or

sampling any or all of the materials or to inspecting the premises—or to

producing electronically stored information in the form or forms requested.

The objection must be served before the earlier of the time specified for

compliance or 14 days after the subpoena is served. If an objection is made,

the following rules apply:

(i) At any time, on notice to the commanded person, the serving party

may move the court for the district where compliance is required for an

order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the

order must protect a person who is neither a party nor a party’s officer from

significant expense resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court for the district where

compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person to comply beyond the geographical limits

specified in Rule 45(c);

(iii)

requires disclosure of privileged or other protected matter, if no

exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a

subpoena, the court for the district where compliance is required may, on

motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research,

development, or commercial information; or

(ii) disclosing an unretained expert’s opinion or information that does

not describe specific occurrences in dispute and results from the expert’s

study that was not requested by a party.

described in Rule 45(d)(3)(B), the court may, instead of quashing or

modifying a subpoena, order appearance or production under specified

conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be

otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(e) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically Stored Information. These

procedures apply to producing documents or electronically stored

information:

(A) Documents. A person responding to a subpoena to produce documents

must produce them as they are kept in the ordinary course of business or

must organize and label them to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified.

If a subpoena does not specify a form for producing electronically stored

information, the person responding must produce it in a form or forms in

which it is ordinarily maintained or in a reasonably usable form or forms.

person responding need not produce the same electronically stored

information in more than one form.

(D) Inaccessible Electronically Stored Information. The person

responding need not provide discovery of electronically stored information

from sources that the person identifies as not reasonably accessible because

of undue burden or cost. On motion to compel discovery or for a protective

order, the person responding must show that the information is not

reasonably accessible because of undue burden or cost. If that showing is

made, the court may nonetheless order discovery from such sources if the

requesting party shows good cause, considering the limitations of Rule

26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information

under a claim that it is privileged or subject to protection as trial-preparation

material must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or

tangible things in a manner that, without revealing information itself

privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a

subpoena is subject to a claim of privilege or of protection as

trial-preparation material, the person making the claim may notify any party

that received the information of the claim and the basis for it. After being

notified, a party must promptly return, sequester, or destroy the specified

information and any copies it has; must not use or disclose the information

until the claim is resolved; must take reasonable steps to retrieve the

information if the party disclosed it before being notified; and may promptly

present the information under seal to the court for the district where

compliance is required for a determination of the claim. The person who

produced the information must preserve the information until the claim is

resolved.

(g) Contempt.

The court for the district where compliance is required—and also, after a

motion is transferred, the issuing court—may hold in contempt a person

who, having been served, fails without adequate excuse to obey the

subpoena or an order related to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).

This page left blank on purpose

Appendix E

Department of Homeland Security Immigration

Enforcement Subpoena (Form I-138)

SAMPLE

This page left blank on purpose

JUDICIAL WARRANTS v. IMMIGRATION WARRANTS

Is this the

right address?

Is it still current?

Is it actually

signed by a judge?

Note: only

the person,

property, &

areas

specified may

be searched

IF THE ANSWER TO ALL OF THESE IS YES, THEN

IT IS LIKELY A VALID JUDICIAL WARRANT

THESE ARE VISUAL CUES THAT THIS

IS AN IMMIGRATION WARRANT

JUDICIAL SUBPOENAS v. IMMIGRATION SUBPOENAS

THESE ARE VISUAL CUES THAT THIS

IS AN IMMIGRATION SUBPOENA

Is this directed to you?

IF THE ANSWER TO THESE IS YES, THEN

IT IS LIKELY A VALID JUDICIAL SUBPOENA

Is it signed by a clerk

of court?

Does it

specify

what

documents

are being

sought?