- Nothing here should be taken as legal advice. Consult a trusted attorney for information specific to your case.
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A NOTE FROM MIJENTE
We are excited about the actions taking place in San Diego this July 2nd, as part of the #FreeOurFuture actions. We believe that it is a key moment to resist white supremacy and the government’s law enforcement agencies that uphold it (e.g., ICE, police). It is an opportunity for Latinx people to take a stand.
We recognize that for undocumented and criminalized attendees who are traveling to be part of this action, this will mean a harder travel process and an assessment of risk that others might not have to consider. We are providing this information with the purpose of making the process of researching risk and minimizing risk more accessible.
We strongly believe in the right of people to choose the kinds of risks they want to take in their lives and in our responsibility to support them through this process. This document could be helpful for everyone taking part in the July 2nd #FreeOurFuture actions, but is written with the needs of those who are not U.S. citizens, those who have had past contact with the criminal punishment system, and/or gender non-conforming people in mind.
If you don’t fall into any of these categories but will be traveling with people who do, it’s a good idea to read through this document, so you can be prepared to support your friends.
Preparing to Travel
Have a solidarity plan
- Create a solidarity plan amongst travelers in the event that your vehicle is stopped by police or immigration. You should make agreements about what – if any – information or documentation you wish to share with border patrol/ICE/police if stopped. You can make these agreements based on the level of risk members of your group are comfortable taking. Solidarity plans are strongest when everyone makes agreements in advance about what they want to share or not share.
Consult with your attorney
- If you have legal representation for an immigration or criminal case, now would be a great time to check in with your lawyer for advice about your specific situation. Even people with very similar immigration statuses may face different risks, so talking to someone with particular knowledge about your situation will be very helpful. Your conversation should be confidential and protected by attorney-client privilege.
Fill out helpful forms
- Sign a DHS Privacy Waiver & G-28 Form: If you are not a citizen, make sure a trusted person or a legal worker/ lawyer has DHS privacy waivers signed by you and a witness. The privacy waiver allows a third party such as an organization, Congressional office, a trusted individual, or media to ask questions to ICE officers about a person’s arrest, immigration case, or deportation. If you have an immigration lawyer, make sure you have signed a current Form G-28. The G-28 is a government form that identifies that you are represented by a lawyer. Here are links to privacy waivers and here is the link to the G-28 form and instructions.
Review your rights
- You have the right to remain silent and contact an attorney. Instead of talking to an officer, you can share this card. Distribute cards to everyone in the group.
- San Diego falls within 100 miles from the border, so Customs and Border Patrol (CBP) has more access than in other parts of the country. That does not mean do you don’t have rights.
- Check out Mijente’s Know Your Rights guide for an overview of your rights anywhere in the country.
- There are also some additional protections under California law, including:
- You do not have to share your name, provide any documents, or answer any questions from local law enforcement.
- In California, it is illegal for Border Patrol or local law enforcement to rely on a driver or passenger’s race to justify pulling a car over.
- California specific Know Your Rights guides are available from NILC, the ACLU, Dream Team LA, and the ILRC.
Decide what to bring and what to leave at home
- Forms of ID
- Documents that are not yours: If you are stopped by law enforcement and you give them or they find on your person identification documents on that are not yours or not valid, you may face more serious criminal charges.
- ID/Passports from another country: For some , bringing an ID or passport from another country may put you at risk if you are detained. If immigration finds your non-U.S. identity document, it may provide them with information that may make it easier to bring charges against you.
- OJO: if you are flying, you may have to bring that ID with you for your flight if you have no other qualifying documents – see below for more information.
- Different rules apply in terms of having to present ID to immigration enforcement for people on visas; US citizens; Legal Permanent Residents, people with TPS, and people with other immigration statuses. Before deciding what documents to present, it will be best to talk to an attorney to determine what choice works best for you.
- Where possible, consider bringing other forms of ID instead, such as a school ID or a community ID, a library card, etc.
- Controlled substances
- Remember that San Diego is an area where CBP is active and where they sometimes use drug-sniffing dogs. Although marijuana is legal at the state level in many states, it is still criminalized at the federal level. If the smell of marijuana causes a drug-sniffing dog to alert, it may give the CBP or another federal agency probable cause to detain and question your group.
Protect your digital information
- Your devices (laptops, tablets, phones) can have a lot of information that you may not wish to share. CBP and ICE have gotten increasingly technologically sophisticated. Consider whether you need to do a privacy and security check-up with your devices before you travel. Here are some more resources on how to do a digital check-up before you travel – one short guide, and a longer guide. At a minimum, make sure your devices (particularly your cell phone) are password-protected and opt for a memorable but unpredictable password and not for a fingerprint ID (the law around your privacy with those fingerprint IDs is less clear and may not protect you).
Traveling by bus/car/van:
Pick a driver who has a valid license, registration and insurance. The driver is the person most likely to have to interact with law enforcement or immigration if the vehicle is stopped. Selecting a driver who is a citizen or lawful permanent resident (someone with a green card) will be likely to reduce your risk. You do need a valid license (for Californians, an AB 60 license will be acceptable for state law enforcement), vehicle registration and proof of insurance to drive a car.
Checkpoints do exist in this area. This is an area where the CBP has fixed checkpoints that don’t move and “tactical” checkpoints that do move. You should be aware that it is very likely that you will run into checkpoints while driving to or from San Diego. Major fixed checkpoints include a checkpoint on cars going north on the 5 towards Los Angeles; on the 15 coming from Riverside towards San Diego; and on both the west and east-bound sides of the 8 (the highway coming from Arizona to San Diego). Although the checkpoints do not operate all the time, it is not possible to reliably predict when they will be operating. A libertarian think tank has compiled a map of some fixed checkpoints here; however, that list is not exhaustive and doesn’t include “tactical” checkpoints. If you want a really deep dive into how the CBP thinks about checkpoints and how it uses them, see this 2017 GAO report.
- Local resident tip: Sometimes undocumented people who must drive those highways will send ahead a car driven by citizen or legal permanent resident allies who will check and see if the checkpoint is operating or not.
In addition to fixed checkpoints, CBP often has its officers posted in vehicles along the side of major highways and smaller roads, and will pull over vehicles that they deem “suspicious”.
- Local resident tip: CBP often uses very arbitrary criteria to stop people. They will claim that many different behaviors are suspicious enough to justify that they must stop people and subject them to additional questioning. Prepare to be stopped and questioned. It’s likely that the CBP will detain you if they decide to question you and then determine that you have no documentation showing you have a legal right to live in the U.S.
Traveling by Plane
The security screening and type of identification required is the same as traveling to other states. After getting a boarding pass, the next step is to go to a Transportation Security Agency (TSA) agent and show them an identification and Boarding Pass, followed by the security body scans.
International airports are considered “ports of entry,” or places where people can enter the U.S. from abroad. Both the TSA and Customs and Border Protection (CBP), two agencies under the Department of Homeland Security (DHS), are present at the airport, and both agencies have the authority to ask for immigration documents should they suspect that someone is in the country without status or is using false documents.
- Tip from a local resident: CBP does not typically inspect travelers coming into or leaving the San Diego Airport in the domestic terminals. They have been present in the international terminal.
Types of Identification You May Present to the TSA
According to the TSA, documents that are acceptable forms of identification to show at an airport include (see website for a full list):
- Driver’s licenses or other state photo identity cards issued by Department of Motor Vehicles
- Permanent resident cards
- Border crossing card
- Foreign government-issued passport
- USCIS Employment Authorization Card (work permit)
- Notice to Appear along with another identification with full name (see “Traveling While in Deportation Proceedings” below for more details)
ID Considerations For Non-US Citizens
- State-issued ID or Driver’s License: A state-issued driver’s license or state ID is the document that is considered acceptable by TSA and does not identify the traveler as a non-US citizen or as a citizen of another country, which is particularly important for undocumented immigrants.
- A note on “limited purpose” IDs: There are a few states that have been able have identifications or driver’s licenses that are not approved by TSA, particularly those from states that have changed their laws and regulations to make these available for undocumented immigrants. These are IDs or driver’s licenses that usually do not require a social security number, such as the limited purpose IDs or driver’s licenses in Washington D.C. and Temporary Visitor Driver’s Licenses in Illinois. According to DHS, these are IDs that “must clearly state” that they are not acceptable for federal purposes, and are not alone acceptable identification for purposes of flying. Although DHS “cautions against assuming that possession of a noncompliant card indicates the holder is an undocumented individual, given that several states issue noncompliant licenses for reasons unrelated to lawful presence,” it’s still not a good idea to travel with one of these forms of ID. Places that have these types of identification include: Washington D.C., New York City, and most recently Phoenix, Arizona. More information from DHS here.
- Foreign Passports: For undocumented immigrants who do not have access to a state-issued ID or driver’s license, a “foreign government-issued passport” is the only other option listed on the TSA website as acceptable. If your only form of ID is a foreign passport, and that passport doesn’t include a valid visa stamp permitting you to be in the US, you may be subject to extra questioning by CBP or TSA that could lead to your detention.
ID Considerations For Transgender and Gender Non-conforming People
- IDs that do not match gender presentation
- TSA is required to check that the name, gender and date of birth included in the flight reservation match the type of identification an individual provides at the airport. This means that the security check is supposed to be about whether the ID matches your flight, not your gender presentation.
- According to the NCTE, “It does not matter whether your current gender presentation matches the gender marker on your ID or your presentation in your ID photo, and TSA officers should not comment on this.”
- OJO: This doesn’t mean that a traveler won’t encounter transphobic or heterosexist TSA agents who may direct an individual whose ID does not match gender presentation to a secondary screening, which may be riskier for undocumented travelers.
- Tip from a gender queer traveler: It’s their job to only verify the ID is valid, not to question your life. Often they would question whether it really was my ID, probing into my personal business. I’ve always just answered, ‘yes, it’s mine.’ They often inspect my ID for 5-10 minutes longer than everyone else, but they don’t have a right to question any aspect of my gender. I just don’t engage beyond that and just wait for them to approve my ID.
Navigating the Airport Security Process
Packing Tips
- Tip from an undocumented traveler: Know the screening process well. If you are not used to traveling by plane, learn what you can put in your carry-on baggage and what you are required to take out of your bag and pockets when you go through the screening.
- For transgender and gender non-conforming people: Check out the information from the National Center for Transgender Equality for travelers, especially for information such as packing medicine and syringes, medical prosthetics, etc.
- Gel-filled prosthetic items, such as used for breast augmentation, are not included in the 3-ounce limit for liquids, “as they are considered medically necessary” but their presence “may result in extra screening.” They recommend packing these items in checked luggage, or calling the “TSA Cares Hotline” to speak with a trained representative, at 1-855-787-2227.
Body Scanners: Most airports use “Advanced Imaging Technology” that scans the profile of a person’s body and catch an “anomaly” or “alarm” including items that may be hidden under a person’s clothing. The NCTE notes that in some cases the scanners “can register body contours not typical for a person’s gender as anomalies. Foreign objects such as prosthetics, binding garments, or even paper or change left in a pocket will commonly register as anomalies requiring further screening. Often this consists of a limited pat-down of the area(s) where an anomaly was detected, however it can potentially involve a complete pat-down.” You can opt-out of scans at any time, but will be then required to undergo the pat-down.
The pat-down: A pat down may take place when there is additional information needed after the body scan or as an alternative, and can be very invasive. The pat-down must be performed by an officer of the same gender as the traveler, based on your gender presentation or identity. NCTE says that “transgender women should be searched by female officers, and transgender men should be searched by male officers. The gender listed on your identification documents and boarding passes should not matter for pat-downs, and you should not be subjected to personal questions about your gender. If TSA officers are unsure who should pat you down, they should ask you discreetly and respectfully.”
- Tip from transgender traveler: Prepare yourself mentally that there will be uncomfortable moments. Like being asked if you are male or female, and how or who should pat you down. If people prefer a man or woman, be vocal about it. For people who have not had surgeries, clothing can also be an issue, and they may be asked if they are wearing something under their clothes or if they have something hidden under their shirt. A lot of pressure is put on the passenger, be confident, direct and honest in our interaction with agents.
Communicating Securely While Traveling
The TSA and CBP sometimes use advanced technologies. These technologies include Stingray technology, which can mimic a cell phone tower and access the texts and calls you are making. If you use an encrypted communication service like Signal, it will be harder to access your texts and calls using this technology. See above for ways conduct a digital security check prior to traveling.
Know Your Rights in San Diego
The ACLU has put together a basic overview of the rights someone has in a border area.
Are there limitations to immigration officials’ power?
The Fourth Amendment to the U.S. Constitution protects against arbitrary searches and seizures of people and their property, even in the border area. Furthermore, as a general matter, these agents’ jurisdiction extends only to immigration violations and federal crimes. And, depending on where you are in this area and how long an agent detains you, agents must have varying levels of suspicion to hold you. What does this mean in practice?
- You have the right to remain silent or tell the agent that you’ll only answer questions in the presence of an attorney, no matter your citizenship or immigration status. You do not have to answer questions about your immigration status. You may simply say that you do not wish to answer those questions. If you choose to remain silent, the agent will likely ask you questions for longer, but your silence alone is not enough to support probable cause or reasonable suspicion to arrest, detain, or search you or your belongings.
- A limited exception does exist: for people who do have permission to be in the U.S. for a specific reason and for, usually, a limited amount of time (a “nonimmigrant” on a visa, for example), the law does require you to provide information about your immigration status if asked. While you can still choose to remain silent or decline a request to produce your documents, people in this category should be aware that they could face arrest consequences. If you want to know whether you fall into this category, you should consult an attorney.
- Generally, an immigration officer cannot detain you without “reasonable suspicion.” Reasonable suspicion is less robust than probable cause, but it is certainly not just a hunch or gut feeling. An agent must have specific facts about you that make it reasonable to believe you are committing or committed a violation of immigration law or federal law.
- If an agent detains you, you can ask for their basis for reasonable suspicion, and they should tell you.
- An immigration officer also cannot search you or your belongings without either “probable cause” or your consent. If an agent asks you if they can search your belongings, you have the right to say no.
- An immigration officer cannot arrest you without “probable cause.” That means the agent must have facts about you that make it probable that you are committing, or committed, a violation of immigration law or federal law.
- Your silence alone does not trigger “reasonable suspicion” or “probable cause.” Nor does your race or ethnicity alone suffice – although in practice, you may be subjected to more questioning if you are a person of color (but we bet you knew that already).
Participating in direct action
During the action, there will be very clear zones (green, yellow and red) marking the area. Green zones will be areas where arrest is unlikely (although possible, because police are police). Yellow areas are medium-risk areas, where arrest might happen. Red areas are high-risk areas – areas where it’s likely arrests will take place. You should make the choices that work best for you about what area you’d like to join.
Here are some things to consider while deciding what zones work best for you:
Considerations for Non-US Citizens
- Potential risks of arrest
- Getting arrested can result in immigration consequences if you are undocumented. Your risk of being detained, put in removal proceedings, or charged with federal crimes increases if you have multiple deportations on your record; if you have prior criminal convictions; or if there are already removal proceedings against you.
- OJO: even if you do not have a record and are undocumented you could still be targeted by law enforcement or immigration agents.
- If you are arrested, you typically must give an address to law enforcement. Even if the arresting agency doesn’t collaborate directly with ICE, ICE may still be able to access their databases of arrestees and find out what information you have provided.
- While in theory the San Diego police are not supposed to collaborate with ICE, in practice they have been known to offer information about persons they are holding to ICE, and sometimes notify ICE when they are releasing people from police custody.
- Getting arrested can result in immigration consequences if you are undocumented. Your risk of being detained, put in removal proceedings, or charged with federal crimes increases if you have multiple deportations on your record; if you have prior criminal convictions; or if there are already removal proceedings against you.
- Deciding whether to talk about your status during the event
- People make different choices about whether they discuss their immigration status publicly at protests. If you talk about your immigration status publicly, it is more likely that CBP/ICE may determine that they have probable cause to detain you under the suspicion that you are committing, or committed, a violation of immigration law or federal law.
- OJO: even if CBP/ICE don’t seem to be visibly present, they also sometimes use surveillance equipment – so if you’re speaking publicly, there’s no guarantee that CBP/ICE might not get that information.
- People make different choices about whether they discuss their immigration status publicly at protests. If you talk about your immigration status publicly, it is more likely that CBP/ICE may determine that they have probable cause to detain you under the suspicion that you are committing, or committed, a violation of immigration law or federal law.
Consider doing the following if approached by an immigration officer:
If an immigration officer approaches you in a public area, such as a parking lot, do not run. You may be arrested if it looks like you are trying to escape.
Do not answer any questions from immigration officers. Do not tell the immigration officer where you were born, your nationality, or what your immigration status is. Do not sign any papers. Do not show the agent your papers, any immigration documents, or any kind of identification documents that state what country you are from. If the agent asks you for your papers, tell the agent, “I wish to talk to a lawyer.” Also, be aware that lying to an immigration officer may subject you to criminal charges, if your lie is discovered. Do not claim being a citizen, as that could also result in higher charges.
An immigration officer cannot force you to answer any questions. Even if you are arrested and taken into custody, you have a right to be silent and to ask for a lawyer. If the officer tries to ask you questions, tell him or her that you want to talk to a lawyer. If he or she keeps trying to ask questions, keep repeating that you want to talk to a lawyer.
Ask the officer, “Am I free to leave?” If the officer says yes, walk away (don’t run). If the officer says no, ask the officer “am I being detained?” If the officer says so, repeat “Am I free to leave?” You can ask these same questions repeatedly. However, if the officer says yes, continue to answer each question by stating that you want to talk to a lawyer. If the officer begins to pat you down, do not resist but say outloud “I do not consent to this search.” Then again, continue to answer each question by stating that you want to talk to a lawyer. Even if they still search you or detain you, making these statements clear can help your defense later in court.
Considerations for Transgender and Gender Non-conforming People
- During the action
- The National Center for Transgender Equality has a helpful guide for transgender and gender non-conforming people who are planning on participating in direct action. This link has the guide, which is available in both Spanish and English. Also, be aware that in California, you have the right to refuse to show an ID to California law enforcement unless you are stopped while driving, or have been arrested (although refusing to show your ID may cause the law enforcement officer to escalate and detain you for longer, even though they are not supposed to).
- If you are arrested by California law enforcement
- The San Diego Sheriff’s policy is to individually assess people who have been arrested to determine where they should be housed. There is not a guarantee that you will be housed with other people who share your gender identity. However, the Sheriff’s offices is also supposed to “consider whether, based on the information before them, a detainee may be at a high risk of being sexually abused and, when appropriate, take necessary steps to mitigate any such danger to the detainee.” If you’re detained and believe that being held in a particular space may put you at risk of assault, you may want to share that information with the law enforcement officers who are detaining you. The sheriff’s manual is here.
Information sourced from the following places, as well as from conversations:
Sourced from: https://www.nilc.org/wp-content/uploads/2015/12/imm_enfrcmt_know_rts_CA.pdf
https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/your-rights-border-zone
https://mijente.net/2016/10/01/undocumented-traveling-puerto-rico-lanzate/#program
https://nipnlg.org/PDFs/community/2017_12Jan_8ways.pdf
https://nipnlg.org/marchAct.html
https://transequality.org/know-your-rights/airport-security
https://www.nilc.org/get-involved/community-education-resources/know-your-rights/othimmenf/
https://www.nilc.org/wp-content/uploads/2015/11/drivers-license-access-table.pdf