Can Green Card or DACA Holders Get Deported (Removed) for Attending Peaceful Protests?

Non-citizens or immigrants living in the United States are covered by the U.S. Constitution, the First Amendment to which protects the right of peaceful assembly. However, the practical reality of taking part in street protests or marches, even if they are legal and peaceful, is a bit more complicated. You could, whether you have a green card, some other legal status, or DACA (Deferred Action for Childhood Arrivals), be risking your right to remain in the U.S. if you are singled out or arrested by immigration or law enforcement authorities.

Protesting Is Not, By Itself, a Ground of Deportability

U.S. immigration law (I.N.A. Section 237) sets forth numerous grounds upon which a non-citizen may be deported (removed) to their country of origin. Taking part in lawful, peaceful protests is not on that list.

But other grounds of deportability can be used against protesters, for example the one making foreign nationals who endorse or espouse terrorist activity deportable. The second Trump administration has used this to define pro-Palestinian protesters as terrorists and then seek to deport them. (See for example, the case of Mahmoud Khalil.) What's more, various U.S. states' legislatures are considering anti-protest bills. (See US intensifies crackdown on peaceful protest under Trump.)

Also, if a protest were to get unruly or violent, you could find yourself committing or being arrested for acts that ARE specified on the list of deportability grounds or crimes of the sort that cause DACA holders to lose status. Both of these possibilities are discussed below.

Acts Committed During Protests Could Become Bases for Deportation

The following are grounds of deportability that could be used against any non-citizens, whatever their immigration status, if they're arrested or picked up by police or immigration officials during a protest:

• having committed a crime involving moral turpitude (CIMT) committed within five years after the date of U.S. admission (or ten years if the person received a green card as a criminal informant), and the crime is punishable by a sentence of at least one year
• having committed two or more crimes involving moral turpitude at any time after U.S. admission, where the two crimes did not arise out of a single scheme of misconduct, or
• having committed an aggravated felony any time after U.S. admission
• having participated in a protest whose topic the U.S. government defines as espousal of terrorism.

The tricky thing is that the federal-law definitions of what makes someone deportable are meant to encompass a wide range of crimes, many of them found in various states' criminal laws. No one is ever convicted of a "crime of moral turpitude," for example. But people convicted of crimes such as aggravated assault, theft (such as looting), and mayhem have been found by U.S. immigration authorities to have committed crimes of moral turpitude and to thus be deportable from the United States.

Of course, if you are in the United States with no lawful status in the first place, you are already considered deportable, with only a few potential defenses available to you. U.S. immigration authorities (Immigration and Customs Enforcement, or ICE) have been known to show up at public protests. If they decide to question or arrest you, you could land in removal proceedings.

The Risks of Protesting Are Higher for DACA Holders

DACA holders can lose their immigration status or be denied DACA renewal and face possible deportation for:

• any "significant misdemeanor"
• any felony, or
• any three misdemeanors, whether significant or not, if they took place on different dates.

The term "significant misdemeanor" covers a variety of criminal convictions. Most notably for would-be protesters, these include crimes where a sentence of more than 90 days was imposed, or involving firearms, trespass, or disturbing the peace.

Take particular caution if you are in the United States with no right to remain here other than DACA.

If Attending a Protest, Plan for the Possibility of Arrest

You have a legal right to have your voice heard in the United States. But be realistic, and don't go to any protest without a plan for how you will stay safe and in communicate with others who can help you if the worst happens.

This might include, for example, surrounding yourself with friends, letting family members know where you'll be, carrying a cell phone with which to take videos, and memorizing the phone number of a criminal attorney and an immigration attorney to contact if things go wrong. Make yourself aware of how the protest is organized. In some cases, the organizers will specifically look for volunteers to put themselves forward for arrest. You probably don't want to volunteer for that.

Also review your rights in the event of arrest, such as the rights to remain silent and to refuse to show identity documents that say what country you are from.