June 9, 2020

Jing Feng Law Group wishes to empower you in your decision to participate in a Black Lives Matter protest by providing a checklist of issues to consider and address. After the George Floyd murder by the Minneapolis police, mass demonstrations have taken place around the country to protest police brutality in the United States and it is especially critical to know your rights as a noncitizen. We know that noncitizens face additional risks when protesting and are often forced to make decisions without enough knowledge of the relevant risks so we are providing the below general guidance.

This newsletter covers what factors to consider when protesting, strategies to lower your risk of questioning or arrest if you choose to attend, and critical information to know if you encounter law enforcement.

If you have no legal immigration status in the U.S. and are thinking about protesting:

• Although you have a right to protest, there is a risk when you attend a protest because you are undocumented.
• If ICE agents are present (and aware of your status), they may arrest you for immigration violations (for example, being in the country with no immigration status).
• Any interaction with law enforcement can lead to ICE being informed and possibly picking you up – even if you did not commit a crime, are not charged with a crime, or are picked up in a protest with a lot of other people.
• Even if you pay a bond or complete your jail time, you may be detained longer until ICE can come and arrest you.

If you are not a U.S. citizen but have lawful immigration status and are thinking about protesting:

• If you have been convicted of certain crimes in the past, police contact, or an arrest at a protest may prompt immigration authorities to place you in removal proceedings. This may happen even if the conviction is from many years ago.
• If you are arrested, charged, and convicted of a crime arising out of your presence at a protest, the conviction may lead to immigration consequences. That is why it is very important for you not to accept any plea agreements until you or your criminal defense attorney has consulted with an immigration attorney. A conviction for a “crime involving moral turpitude” (CIMT) can land you in removal proceedings, or jeopardize your chances of becoming a green card holder or U.S. citizen. The following crimes have been found to be CIMTs:
  • Aggravated assault against a police officer
  • Disorderly Conduct, in some circumstances
  • Obstruction of justice
  • Fleeing (Aggravated) a police officer

If you choose to attend a physical protest, here are strategies to lower your risk of questioning or arrest by law enforcement:

• Everyone, including noncitizens, has a right to remain silent when interacting with police. Noncitizens arrested at a protest usually should not disclose their immigration status, their birth country, or how they entered the country. They should not falsely claim U.S. citizenship or provide fake documents. Noncitizens can carry an ILRC red card and show it to law enforcement if they are questioned or arrested.
• It is generally not advisable for most noncitizens to carry any foreign ID card or any other document that would show that they are a noncitizen at a protest. Instead, they should carry state, local, or student identification if they have it. In some circumstances, noncitizens showing immigration identification may alert law enforcement to a noncitizen’s status.
• Noncitizens attending protests should take digital privacy precautions in advance. It may be best to leave cell phones at home given that the police may confiscate them and try to search for incriminating evidence. However, if you bring their phone, it is strongly recommended to turn off fingerprint or Face-ID unlock features, add a strong password, and turn off location tracking, Bluetooth, and Wi-Fi.
• Noncitizens attending protests should make sure they have contact information for their immigration attorney, an emergency contact, and any support networks they may need to contact urgently at the demonstration.
• Noncitizens should take significant precautions and learn about the possible consequences of posting about the action on social media, even after it is over. Social media activity may be monitored and draw the attention of immigration enforcement authorities.

Critical Tips For When You Encounter Law Enforcement:

What to do

• You have the right to remain silent in both criminal and immigration custody. Tell the officer, “I do not want to answer any questions. I want to speak to my lawyer.” In immigration proceedings, the government can use your silence to decide whether or not to start deportation proceedings against you.
• Carry the card of an immigration attorney with you when you go to a protest. Write the phone number on your arm in case you get arrested and your things are taken away.
• If you are not a U.S. citizen, you have no “right” to stay in the United States. Even if you have a green card, your right to remain in the U.S. is conditioned upon various things, most importantly – avoiding criminal convictions.
• Even if you pay a bond or complete your jail time, you may be detained longer until ICE can come and arrest you.
• If you are charged criminally, you will be provided with a criminal defense attorney free of charge. Ask this lawyer about the effect of the criminal conviction or plea on your immigration status. Ask this lawyer to talk to an immigration lawyer.

What not to do

• Do not lie about your immigration status.
• Do not provide fake documents.
• Do not sign anything in immigration custody even if immigration officials tell you that you don’t have options to stay in the country, it will be easier if you sign, and you will be locked up in jail longer if you don’t sign. Whatever they tell you to convince you to sign – DO NOT SIGN ANYTHING WITHOUT TALKING TO A LAWYER.
• Do not plea unless you understand the immigration consequences of your plea.
• Do not discuss your immigration status with anyone but your lawyer. If you are arrested and charged criminally and an immigration officer visits you in jail, do not answer questions or sign anything before talking to a lawyer.
• Do not challenge the cops on the street, even if you think they are violating your rights—wait for court.

For more detailed information, please do visit https://www.aclu.org/know-your-rights/protesters-rights/#im-attending-a-protest

Our attorneys have years of experience and can help you understand the relevant factors that may weigh into your decision to attend a physical protest or demonstration. Please contact Attorney Jing Amy Feng at jfeng@fengvisa.com if you have any questions.