Week 35: Special Edition — ICE and CBP redeployed for crowd control, immigrants face risks if arrested
Immigration news, in context.
This is the thirty-fifth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
There have been a lot of questions over the exact scope of immigration agents’ powers in non-immigration enforcement settings, owing to the fact that Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) agents are being deployed to perform crowd control and general protest-related activities alongside a mishmash of other federal agents from different departments. (Many of whom have been roaming the streets in ill-assorted uniforms and without identification).
Further, at a time when there are indiscriminate beatings and arrests in New York and other cities, sometimes for the crime of merely being outside, many have questions as to how this type of contact with law enforcement can affect immigrants. We will attempt to briefly break down both of these queries. DISCLAIMER: This is intended as a useful analysis for those attempting to generally understand the issues at play. None of the following is intended as legal advice and should not be construed as such. If you have any specific or case-related questions, please direct them to an attorney.
Powers of immigration agents
The Trump administration has dispatched a number of federal officers, including some employed by ICE and CBP, to quell protests over the last week. In Minneapolis, protesters spotted a CBP predator drone flying over a demonstration. “The unmanned aircraft system provides live video feed to ground law enforcement, giving them situational awareness, maximizing public safety, while minimizing the threat to personnel and assets,” a CBP spokesperson told NBC News. In El Paso, Washington, DC, and other cities, CBP and ICE have been patrolling the streets alongside municipal police forces, raising questions about their enforcement powers.
The powers and duties of immigration agents are laid out in both law and regulation. Their authorities are generally defined by statute in 8 U.S.C. § 1357. Most of it is about what you’d expect: among their “powers without a warrant” are the abilities to interrogate people about their right to be in the United States, arrest those who are suspected of immigration violations, and patrol the borders, among others. The relevant bit here is subsection (a)(5)(A), which gives these agents arrest authority for “any offense against the United States, if the offense is committed in the officer’s or employee’s presence.” (Subsection (a)(5)(B) also gives agents the power to arrest if they witness someone commit any “cognizable felony,” but this can only occur if they are in the process of performing their immigration duties, a point emphasized by a federal judge in the 2001 decision of United States v. Perkins.)
In this context, “offense against the United States” essentially means any crime as defined in the U.S. Code, i.e. federal crimes. Federal agents are not authorized to enforce state laws, obviously, but the scope of offenses against the United States is broad enough that most protest activity could probably be contorted to constitute such an offense.
The regulation implementing this is 8 CFR § 287.5(c)(3), which notes that the agents authorized to perform arrests for such offenses are Border Patrol agents; air and marine agents; special agents (part of ICE’s Homeland Security Investigations); deportation officers (part of ICE’s Enforcement Removal Operations); CBP officers; supervisory and managerial personnel; and other immigration officers as designated by ICE or CBP (which can technically include everyone from pilots to attorneys to even asylum officers).
Beyond a need to have completed basic immigration law enforcement training, any of these officers have free rein to perform these arrests. Separately, 287.5(f) vests immigration officers with the power to carry firearms, and 287.8 sets out standards for questioning, interrogations, arrests, and the use of deadly and non-deadly force.
Among other provisions, (b)(2) states that immigration officers may “briefly detain the person for questioning” if they have “a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States.” When conducting an arrest, as with any other federal law enforcement officer, immigration agents must identify themselves as such and state a reason for the arrest.
A separate statute — 40 U.S.C. § 1315— also gives the Secretary of Homeland Security the responsibility to “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government.” This task is typically handled by the Federal Protective Service, but the statute specifies that the secretary can designate other DHS employees, including potentially ICE and CBP.
When performing these functions, agents are able to “enforce Federal laws and regulations for the protection of persons and property;” carry firearms; make warrantless arrests for offenses against the United States and “any felony cognizable under the laws of the United States;” “conduct investigations, on and off the property in question, of offenses that may have been committed against property owned or occupied by the Federal Government or persons on the property;” and “carry out such other activities for the promotion of homeland security as the Secretary may prescribe.”
These expansive authorities can be used not only on federal property itself, but in “areas outside the property to the extent necessary to protect the property and persons on the property.” The statute also prescribes that, to protect federally owned or operated facilities, Homeland Security may “may enter into agreements with Federal agencies and with State and local governments to obtain authority for officers and agents designated under this section to enforce Federal laws and State and local laws.”
This could be stretched pretty far. Particularly in a city like Washington, D.C., a huge part of the territory could conceivably be designated as necessary to secure for the protection of federal property and employees within. Elsewhere, if states and localities agree with a broad interpretation of what’s necessary to protect federal property, they could easily allow DHS agents to basically simultaneously function as federal, state, and local law enforcers.
All of this is to say that it’s not a particularly murky legal question whether federal immigration agents can be deployed for non-immigration purposes, and perform at least some standard law enforcement functions unrelated to their primary tasks. That raises the question of whether they can concurrently perform immigration and non-immigration enforcement, i.e. can officers who are deployed for crowd control or to secure federal buildings conduct administrative immigration arrests?
The short answer is yes; there’s nothing in the law or the regulations that precludes immigration agents from engaging in immigration enforcement just because they’re temporarily detailed to something else. However, that doesn’t mean they can go around randomly detaining people to check their immigration status. They’re still bound by rules requiring a reasonable and articulable suspicion that someone is breaking the law in order for a detention to occur. That said, an arrest for a non-immigration purpose can easily have immigration consequences, as we will explain below.
A note about jurisdiction: there has been a lot of confusion about the scope of ICE and CBP’s jurisdiction. Many people are under the assumptions that one or both agencies lack the authority to arrest a U.S. citizen, or that CBP’s authority stops at a certain distance from the country’s borders. Neither of these are correct. U.S. citizens legally cannot be arrested for immigration violations, but they certainly can be arrested for suspected criminal conduct. While CBP has enhanced authority within certain ranges of the border, it never loses its law enforcement powers at a particular point.
Briefly, 8 U.S.C. § 1357(a)(3) specifies that immigration officers can access private lands for patrolling purposes within 25 miles from any external boundary; within “a reasonable distance,” they can board and search vehicles. The reasonable distance is not defined in law, so it’s defined in regulation: 8 C.F.R. 287.1(b) describes it as “100 air miles” from the border, which is a little over 100 ground miles. Within this space, agents have the ability to conduct checkpoints and question people about their immigration status, a power that has been upheld by the Supreme Court. Past that point, they lose that ability, but not the rest of their powers.
The potential immigration consequences of being arrested at — or near — a protest
More than 9,300 people have been arrested across the country in connection to the nationwide Black Lives Matter protests, according to the Associated Press. The three cities with the highest arrest tallies — Los Angeles, New York City, and Houston — all have large immigrant populations, though it’s currently impossible to estimate how many demonstrators present or arrested in each city were non-citizens. Moreover, there are several reports of officers in certain cities arresting people unrelated to the protests, including essential workers such as food couriers, for being out past curfew. (In New York City, the NYPD arrested a different man immediately after he stepped out the door; he was later interrogated about his political beliefs by the FBI, The Intercept reports.)
Given these indiscriminate and often violent arrests, there’s a non-zero chance that immigrants in cities that have imposed curfews could be arrested for either protesting or simply being outdoors at night, even if their jobs require them to do the latter. For non-citizens, being charged with or convicted of a crime can have serious consequences — in some cases, it could even hurt their ability to stay in the United States, regardless of their legal status.
The specific consequences of arrest and conviction depend on a host of factors, including the jurisdiction where the non-citizen is charged.
Broadly speaking, coming in contact with the criminal justice system can put immigrants at risk of being arrested and deported by ICE, even if they’re later cleared of all criminal charges. Under a DHS program called Secure Communities, fingerprints are automatically forwarded to federal databases after an arrest, allowing DHS to see if a noncitizen has been arrested. ICE can, in some cases, ask jails to hold people for an additional 48 hours after they’re supposed to be released so they can be transferred into immigration custody. This is called an “ICE detainer” request. Many jurisdictions have stopped honoring ICE detainers in recent years, often as part of broader “sanctuary” policies intended to protect immigrants — but even if a detainer isn’t honored, a brush with the criminal justice system can land a non-citizen on ICE’s radar.
Whether criminal charges can trigger an immigration arrest (and deportation proceedings) depends on the charges in question. As we’ve covered in the past, the Notice to Appear in immigration court, the first step in deportation proceedings that is often issued as part of an immigration arrest, is supposed to say whether ICE is apprehending the non-citizen on the basis of “inadmissibility” or “deportability." Inadmissibility means the person was never given permission to enter the U.S. in the first place, or, in some cases, that they lawfully re-entered the country after committing certain crimes that made them inadmissible. Deportability means a non-citizen was lawfully admitted into the country — either with a non-immigrant visa or an immigrant visa (or visa waiver)— but has jeopardized their status in the U.S. in some way, typically by being charged with a crime. (Being charged with certain crimes can also subject a non-citizen to mandatory detention in ICE custody, which means they aren’t eligible for bond. As the legal arguments regarding the ongoing detention of immigrants amid the Covid-19 pandemic, mandatory detention does not mean ICE can’t exercise its discretion to release the people in its custody.)
Again, the offenses protesters and bystanders are being charged with vary from city to city, and there’s nothing in the law specifically requiring ICE to try to deport someone for, say, staying out past curfew or unlawful assembly. That said, the law itself is very nebulous and gives the government a lot of latitude. Specifically, there are two categoriesof offenses that can put immigrants in particular trouble: aggravated felonies and crimes of moral turpitude. Aggravated felonies aren’t always felonies and don’t just include “violent” offenses — filing a false tax return, for example, is an aggravated felony. (You can find a list of crimes considered aggravated felonies here.) It’s unlikely that demonstrators would be charged with any of the offenses considered aggravated felonies at a protest, but it’s worth noting that re-entering the country after having been deported is on the list, as are crimes of violence as defined under 18 U.S.C. § 16 that result in at least one year of imprisonment. Crimes of moral turpitude are an even vaguer concept. There’s no precise definition for what constitutes a crime of moral turpitude, and the offenses that can be considered as such vary across jurisdictions.
Being put in deportation proceedings after being charged with a crime at a protest is the worst-case scenario, but it’s not the only thing non-citizens have to worry about. Criminal charges, particularly for moral turpitude offenses, can affect a legal permanent resident’s ability to obtain U.S. citizenship. In order to be approved for naturalization, green card holders have to prove they have “good moral character.” Being charged with, convicted of, or even admitting to an offense considered a crime of moral turpitude could prevent them from meeting this bar. Additionally, for people with DACA, any criminal conviction could lead to their status being revoked.
These aren’t just hypotheticals. There are already anecdotal examples of immigrants being arrested by both local and federal law enforcement at Black Lives Matter demonstrations. Police in Phoenix, Arizona arrested Máxima Guerrero, a DACA recipient who was serving as a legal observer at a protest, AZCentral reports. Four others — including a bystander — were also arrested.