Can You Protest Peacefully in the USA even if You are Not a US Citizen?

According to ICE Spokesperson Danielle Bennett:

“U.S. Immigration and Customs Enforcement fully respect the rights of all people to peacefully express their opinions. In light of civil unrest taking place across the country, ICE personnel and Special Response Teams have been deployed to protect agency facilities and assets in support of the Federal Protective Service and assist local, state and federal law enforcement partners, as needed,”

Details about the context can be found here.

Learn About Your Rights to Protest:

Everyone living in the United States, including immigrants, has certain constitutional rights.

But If you are not a U.S. citizen and you want to join a protest, follow these guidelines:

  1. You have the right to remain silent if an immigration officer stops you
    • Say it loud if you choose to do so
    • You do not need to disclose your country of birth to the immigration officer
    • Use a know-your-rights card instead
  2. Do not lie or provide false documents
    • You have the right to refuse to show ID to prove your nationality
  3. You Can Refuse a Search
    • If an immigration officer stops you but does not arrest you, you can say no to you or your belongings being searched
    • However, the officer is permitted to “pat you down” if he or she suspects you’re carrying a weapon
  4. You have a right to talk to your lawyer
    • If you are taken into custody, you have the right to speak to a lawyer
    • If you don’t have one, you may ask the immigration officer for a list of pro bono lawyers
    • Refrain from signing anything until your lawyer is present
  5. You have the right to free speech
    • The First Amendment of the U.S. Constitution protects the rights of all persons, regardless of immigration status, to attend protests and marches
  6. Keep a safe distance from violent protesters and peace officers
    • Do not get yourself into a situation where you could be charged for attacking a federal employee, or a peace officer
    • Move away from a heated situation
  7. If you believe your rights have been violated
    • Note the detail of the encounter
    • Write down the name of the agency the officer works for, and their patrol car and badge numbers
    • Get the contact information for witnesses
    • Take photographs of any injuries
    • You may then file a complaint with the relevant agency

The Difference Between Constitutional Rights and Rights in Removal Proceedings:

  • If you are not a U.S. citizen, your right to remain in the U.S. is conditioned upon various things, most importantly – avoiding criminal convictions
  • If you are in removal proceedings (where the government tries to deport you), you have the right to have an attorney represent you in those proceedings
  • However, the government is not required to pay for an immigration attorney, unlike in criminal cases
  • 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
  • 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

Special note: A conviction for a “crime involving moral turpitude” (CIMT)

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

What Counts as CIMT in This Context?

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

Are There Any Restrictions on Political Activity by Foreign Students?

Political activities such as picketing, rallies, leafleting, demonstrations, etc., are forms of expression and free association, which are protected for foreigners in the U.S. (including foreign students with visas) as they are for U.S. nationals

Will my Union Membership or Union Activity Effect Visa Applications that I Might Make in the Future?

  • It is against the law for U.S. Citizenship and Immigration Services (USCIS) to ask you questions about your union membership
  • Your legal union activities or to take them into account when reviewing your visa application
  • It is against the law for the university to retaliate against you for union activities

What Rights Do Immigrant Workers have to Engage in Protest Actions?

  1. Right to protest during non-work hours
    • You have the right to engage in political protests during nonwork hours—for example, on your day off or on a day you are not scheduled to work
    • In most cases, your employer may not discipline you, fire you, or otherwise retaliate against you for engaging in political activity during your free time
  2. Right to protest to improve collective working conditions
    • The National Labor Relations Act also provides protection to workers who act together and participate in a political activity designed to improve working conditions for all workers, depending on the form that action takes
    • Actions taken during work hours may be subject to restrictions imposed by lawful work rules that are applied equally by the employer to all employees
  3. Your state’s laws may provide greater protection
    • Some state laws afford greater protections to workers who engage in political activity
    • Workers should ask local immigrants’ rights advocates or their local American Civil Liberties Union (ACLU) office for information about additional protections available under the laws of the state where they reside
  4. Pros and Cons of union contracts
    • Collective bargaining agreements that cover unionized workers may provide them better protection for engaging in political activity than other workers have
    • However, many union contracts include “no-strike” provisions that prohibit union members from engaging in strikes
  5. The employer may not ask you to reverify your authorization to work
    • If you take time off from work, that does not give your employer the right to ask that you reverify your employment eligibility by showing them your documents again
    • Nor may your employer single you out for re-verification because you appear to be an immigrant or have participated with other immigrants in protests

May Workers be Disciplined or Fired for Engaging in Protests?

Workplace Rules Apply

  • While the First Amendment protects workers’ right to free speech, employees are also subject to workplace rules
  • Missing work in violation of a workplace rule, or having an unexcused absence, is generally a legitimate reason for your employer to fire you

At-will Employment May Apply

  • In addition, most workers are subject to “at-will” employment policies that give employers the right to fire employees without reason, subject to very limited exceptions

Pros and cons of union contracts

  • Workers who are covered by union collective bargaining agreements have greater protections, in that employers can fire them only for “just cause”.

Special Note on DACA recipients: For beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program, commonly known as “Dreamers,” an arrest might mean losing their work permit and deferral from deportation

If You Do Not Have Any 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, depending on the state you live
  • Even if you pay a bond or complete your jail time, you may be detained longer until ICE can come and arrest you

Always consult a reliable attorney if you have complex immigration issues. You can also fill out this contact form and schedule your consultation with one of our attorneys, or  Schedule a Consultation 469-994-9407