** LEGAL UPDATE **
As people across the United States have mobilized to raise their voices against racially motivated violence and inequities, immigrants have joined in, whether they are undocumented, on temporary visas (nonimmigrants), or holding green cards (U.S. lawful permanent residents. The U.S. Constitution backs one’s right to peacefully assemble and hold protests, with no distinction made between immigrants and others.
Joining a protest march or event is not risk-free, however.
For one thing, the Trump administration has authorized officers of U.S. Immigration and Customs Enforcement (ICE) as well as Customs and Border Protection (CBP) to join local police and law enforcement in monitoring or controlling the protests. Although both ICE and CBP have stated they don’t plan to make immigration arrests during protests, media reports suggest they are nevertheless profiling and targeting immigrants. This is despite the fact that civil protests are on the list of sensitive locations where the normal ICE policy is to avoid entry or enforcement action.
It can be difficult to distinguish ICE and CBP officers from regular law enforcement, as they have reportedly not been wearing insignia designating which agency they come from. The number of immigration agents deployed to U.S. cities remains unknown, but leaked documents show that in Washington, DC alone, 770 personnel from the Department of Homeland Security have been ordered to assist in enforcement, including sniper-trained tactical response units, such as CBP’s elite BORTAC unit.
Also realize that arrest by local police or law enforcement can ultimately land you in immigration proceedings, potentially resulting in deportation. If law enforcement arrests you and suspects that you are undocumented or even a nonimmigrant or a green card holder, it might contact ICE. Depending on your status and the nature of your arrest, ICE could then file what’s known as a detainer. That means the agency would ask that you be held in jail for 48 hours, possibly after your intended release time, so that it can pick you up for transfer to an immigration detention center for removal proceedings.
The basis for removal would likely be unlawful entry if you’re undocumented, or criminal behavior if you’re charged and later convicted (or plead to) one of the criminal grounds of removal. (Learn more about what happens in removal proceedings.)
Not all local law enforcement agencies comply with ICE detainer requests, particularly if ICE is late in making the pickup. It depends a great deal on where you live. Nevertheless, the risk is there.
If you choose to attend a protest, plan ahead. Line up an attorney whom you can call, and go with friends who can make contact with your family or attorney if you do get arrested. Try to stay well clear of police and immigration officers, and follow curfews and other rules, such as staying behind any boundary or “do-not-cross” lines and not engaging in illegal activity such as looting, or even helping someone escape arrest.
If stopped by immigration enforcement officers, remember that you have the right to remain silent, but you’ll need to state out loud that you are exercising this right. You do not need to tell the immigration officer any information about your immigration status or show them your papers, but also should not tell actual lies or show false documents. An immigration officer has the authority to do a “pat down” based on a suspicion that you’re carrying a weapon, but you can refuse a more thorough search of your person or possessions.
Effective Date: June 8, 2020