Can Protesting Get Green Card or DACA Holders Deported?

The right to peacefully assemble is enshrined in the United States Constitution; theoretically, immigrants as well as U.S. citizens should have the right to protest. However, for some immigrants, in practice even this simple act can put their status at risk.

As the U.S. has seen an upswing in people protesting racially driven violence and systemic racism, many immigrants might wish to make their voices heard. Peaceful protesting in and of itself is not a ground of deportation for a lawful permanent resident (green card holder) or Deferred Action for Childhood Arrivals (DACA) recipient; however, some immigrants who have attended protests are now at risk of deportation or removal.

Immigration Officers and Other Law Enforcement at Protests

Compounding the risk for immigrant protesters, the Trump administration has authorized U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), as well as other federal agencies, to assist local law enforcement during the protests. And even if immigration officers are not present, you could still be at risk of being placed in immigration proceedings if you are arrested by local law enforcement. If law enforcement arrests you and suspects that you are undocumented or even an immigrant, they may contact ICE. Depending on your status and the nature of your arrest, ICE may file a detainer, seeking to have you held in jail for 48 hours until it can transfer you to an immigration detention facility.

Whether local law enforcement chooses to comply with an ICE detainer is highly dependent on the individual jurisdiction. Even if you are not picked up by ICE and placed in immigration detention, depending on your arrest and/or conviction, you could be served with a Notice to Appear (NTA) and placed in removal proceedings in the future.

Protest Risks for Green Card Holders

The Immigration and Nationality Act (INA) Section 237 discusses the grounds of deportability for green card holders. Many of these charges do not directly apply to protesting.

However, there are some possible charges that could cause problems for green card holders. You are at risk of deportation if you:

1. are convicted of a crime involving moral turpitude (CIMT) within five years of U.S. admission and punishable by a sentence of at least one year
2. have been convicted of two or more CIMTs at any time after admission to the U.S., or
3. have been convicted of an aggravated felony. What qualifies as a CIMT or aggravated felony is dependent on the statutory definition of the crimes, and can become quite complicated, as state laws vary by jurisdiction. In general, though, a CIMT involves some aspect of mens rea, or intent.

Rioting has repeatedly been held by courts not to be a CIMT. Disorderly conduct is likewise not a CIMT.

Simple assault is typically not a CIMT; however, assault with intent to commit robbery (such as in a looting situation) could be considered a CIMT. Other types of assault, such as assault with a deadly weapon could easily be deemed an aggravated felony. Burglary, theft, attempted theft, or robbery would likely either be considered CIMTs or aggravated felonies, depending on the specific charges.

Resisting arrest, which many protesters are being charged with, is complicated. It is an aggravated felony in some jurisdictions, a CIMT in other jurisdictions, and neither in yet other jurisdictions.

Another, less common ground of deportability for green card holders is engaging in terrorist activity of any kind. If you are in any way affiliated with a group that the government considers to have terrorist connections, this could be a quick path to deportation.

If you are a green card holder with a prior criminal record, protesting and getting only minor charges could nonetheless put you at risk of deportation. If you have a criminal record, protesting could be very risky.

Overall, there is a significant risk to green card holders who choose to protest. Consult a qualified immigration attorney prior to taking action.

Protest Risks for DACA Recipients

Unlike green card holders who have only a rather narrow range of charges that put them at risk deportation, DACA recipients can lose their status (and thus be at risk of deportation) for a huge variety of criminal convictions. Some are as minor as traffic stops.

If you are a DACA holder and are convicted of either a felony (which is defined as any offense with a possible prison term of more than one year), a significant misdemeanor, or three or more other non-significant misdemeanors, you will be at risk of losing your DACA status.

What convictions qualify under these rules depends on how state law defines specific offenses. However, as an example, a disorderly conduct charge would qualify as a misdemeanor (though likely not a significant misdemeanor). Trespassing, which many protesters have been charged with, even if only unwittingly stepping on private property, would be another regular misdemeanor.

Other charges that we are seeing people face in protests, such as resisting arrest, could be a felony depending on the jurisdiction and specific charge. Any sort of assault or theft charge could be a significant misdemeanor or felony, and result in deportation.

Protesting is unfortunately a risky proposition for DACA recipients, since even a single conviction could result in loss of status and deportation. Even though protesting is your legal right, in the current climate, exercising that right can be dangerous.

Know Your Rights If You Protest

If you do decide to exercise your right to protest, there are steps you can take to increase your chances of safety. Keep this information in mind to better protect yourself (though there is, unfortunately, no guarantee of safety):

• If possible, do not attend protests alone. Go with friends, preferably those who have U.S. citizenship and cell phones to take recordings, if need be. If your rights are violated, it might help to have that moment captured on camera.
• If stopped by immigration enforcement officers, you have the right to remain silent. First, however, make sure to say out loud that you are exercising your right to remain silent. You do not need to tell the immigration officer any information about your immigration status.
• Do not lie to law enforcement or immigration officers or provide false documents. However, you can refuse to show identity documents.
• You have the right to refuse a search by an immigration officer. However, the officer is allowed to “pat you down” if the officer suspects you’re carrying a weapon (and this loophole is frequently exercised by law enforcement).
• Keep away from police and immigration officers as much as possible, and follow curfews and other rules. If the situation seems to be escalating, move away. Even if you are only protesting peacefully, law enforcement have sometimes arrested people indiscriminately, simply for being at the scene when the situation worsens.
• If you are arrested, you will have the right to speak to an attorney. For a criminal matter, you have the right to an attorney, even if you cannot afford one. For an immigration matter, you have the right to an attorney, but you will have to pay out of pocket for one. If you are placed in ICE detention, you can ask an ICE officer for a list of nonprofit immigration services in your area, if you cannot afford an attorney. However, it is a good idea to plan ahead and establish a relationship with an attorney if you believe your status is at risk. Memorize the attorney’s phone number, as well.

As a final reminder, regardless of your immigration status, you have a right to freedom of speech and a right to attend protests and marches, enshrined in the U.S. Constitution. However, you need to be mindful of risks, especially under the current administration.