Immigration enforcement operations carried out by agencies such as U.S. Immigration and Customs Enforcement (ICE) to detain immigrants are becoming increasingly intense.
During these operations, agents often have their faces covered and are heavily armed, and nearby there may be community observers and bystanders documenting their actions.
As public tensions continue to rise due to what many see as excessive tactics by agents, confrontations can occur at any moment. These encounters can turn violent and, in the worst cases, tragic—such as in Minnesota, where two U.S. citizens who were acting as observers and filming immigration operations were shot and killed by ICE agents.
Enlace Latino NC consulted Roy Heroy, a prominent Charlotte-based attorney and partner at the Goodman Carr law firm. Heroy is an expert in criminal defense and immigration law, and his cases have been featured in major outlets such as The New York Times, the BBC, the L.A. Times and CNN, among others.
Heroy said he has represented more than 100 protesters in state and federal courts.
“I currently represent an ICE protester in federal court and have been involved in litigation on behalf of other protesters,” he said.
The Case of Miguel Ángel García Martínez
Heroy said that while he does not represent Miguel Ángel García Martínez, he is familiar with the case and has commented on it publicly. García Martínez, a 24-year-old Hispanic U.S. citizen, faced charges of assaulting federal officers, resisting arrest and interfering with an operation carried out by Border Patrol agents in Charlotte in November.
García Martínez was accused of using his vehicle as a “deadly weapon” after allegedly following agents and livestreaming them on social media. Agents then pursued him for more than a mile before a crash occurred. In December, a judge dismissed the deadly weapon charge.
The young man was released on bond in December, but in late January a grand jury indicted him on charges of assaulting Border Patrol agents, resisting arrest and interfering with the operation.
According to the U.S. Attorney’s Office for the Western District of North Carolina, the charges could carry a sentence of up to eight years in federal prison and a maximum fine of $250,000. García Martínez is scheduled to appear in court again this month.
What to Know When Observing an Immigration Operation
Below are Heroy’s responses to a series of questions regarding the rights and responsibilities of civilians—particularly community observers, as well as activists and bystanders—during an immigration operation.
How can civilians exercise their rights without putting their safety at risk during an immigration operation?
“It’s harder than it used to be because Border Patrol or ICE agents are not following the law, and the government is doing nothing to stop it. They are being very aggressive with people who attempt to observe or document agents by following them in vehicles.”
What actions are legally considered ‘obstruction’ of an immigration operation?
“If someone gets too close to a person being arrested, they are considered an obstruction. ICE also demands that people stop and answer questions, and if they leave or flee, they are often charged with obstruction. These charges generally do not hold up in court, but that doesn’t stop agents from filing them. This is especially dangerous for someone without legal status.”
Under what circumstances can a civilian be detained during an immigration operation?
“The government and the Supreme Court have given them broad latitude to conduct investigations. They can detain civilians if they suspect an immigration violation. This could include simply being Hispanic in a certain area of a city or in a workplace where undocumented immigrants are present.”
What constitutional rights protect civilians in these situations?
“The right to due process protects civilians. Even if Border Patrol or ICE bring false charges, the judicial system generally works as it should. Most judges and prosecutors want to do the right thing, and many illegal charges—such as those brought by Border Patrol—have been dismissed.”
Do civilians have the right to observe, film or photograph an immigration operation from a public space?
“You have a constitutional right to observe and record the conduct of police officers or immigration agents in public spaces. They do not have the right to tell someone not to do so.”
How close can a civilian be without interfering with an immigration or police operation?
“There is no specific rule. Generally, in police investigations, people must keep a safe distance so officers do not feel they are in danger of being attacked or grabbed.
“If there is an operation or if agents are speaking with someone, they can say you can’t be that close. For example, if you are about one meter away and an agent tells you to move back, it doesn’t mean you have to leave the area entirely. They are entitled to a buffer of about five or 10 meters. That applies to both police and immigration agents. Being present as an observer does not, by itself, constitute interference.”
Can an agent order a civilian to leave the area, and on what legal basis?
“No. This is America. We have just as much right to be in an area as they do. The only exception would be something like blocking the entrance to a government facility or causing a major disturbance on government property.”
What rights does a civilian have if an agent requests identification without apparent cause?
“The law generally allows agents to request identification. You do not have to answer questions from an immigration agent, but they do have the right to ask for your name and identification. If you refuse to identify yourself, they can arrest you for that.”
Under what circumstances can an agent ask someone to stop recording?
“That should never happen in this state. They also do not have the right to tell you to delete anything that was recorded.”
Can an agent confiscate or search a cellphone without a warrant?
“If they have reasonable suspicion that it was used in the commission of a crime or contains evidence of a crime. Unless someone gives them a password, they must obtain a search warrant. If a person gives them the password, they can search the phone. A person should never give law enforcement their password.
“You should never, ever unlock your phone for an immigration agent. They must have a warrant from a judge. The only exception is when entering the United States through an airport. In those cases, agents have the right to search a phone or computer, and if you refuse, they can deny you entry into the country.”
What legal standards govern the use of force during immigration operations?
“Unreasonable and excessive force is illegal. However, the government is not enforcing the law, nor are they investigating or filing charges for illegal use of force.”
What can a civilian do if they believe an agent acted abusively?
“For lawsuits, they should speak with a civil rights attorney. Several organizations, such as the ACLU, have filed lawsuits and will continue to pursue litigation related to ICE’s treatment of protesters and immigrants.”
PODCAST
Después de la tormenta
Hace un año, el huracán Helene golpeó al oeste de Carolina del Norte. La comunidad latina respondió con algo más fuerte que la tormenta: solidaridad.
🎧 En este episodio, conoce cómo las organizaciones latinas transformaron la crisis en resiliencia.
▶️ ¡Dale play para escuchar!
Republique gratuitamente nuestras historias en su website o periódico. Seguimos la licencia de Creative Commons. Dele clic al recuadro, y siga las instrucciones.
