Exploring Rights and Risks for Witnesses During ICE Arrests Amid Trump’s Immigration Crackdown

As the U.S. government intensifies its efforts to identify and deport unauthorized immigrants, dramatic videos of immigration arrests from coast to coast have sparked a range of reactions, from applause to criticism, across the nation’s political spectrum.

The Department of Homeland Security (DHS) has received over 100,000 applications in recent weeks from individuals wishing to join Immigration and Customs Enforcement (ICE) and aid in removing the most dangerous criminal undocumented immigrants from the United States, according to Secretary Kristi Noem.

Noem stated that this is a pivotal moment in U.S. history. However, DHS has faced significant criticism and legal challenges over its enforcement tactics, which have become a key component of the Trump administration’s broader and contentious immigration strategy.

Despite these issues, DHS, which oversees ICE and Customs and Border Protection (CBP), is planning to increase arrests, often in areas where unauthorized immigrants traditionally felt safe and within view of anyone armed with a cell phone camera.

CNN reached out to immigration experts, legal authorities, and Trump administration officials to clarify the rights of witnesses and immigrants during an ICE encounter. Here’s what we discovered:

Witnesses generally have the right to record an encounter with ICE in public so long as they are not interfering with the arrest, according to CNN’s sources. However, some states have passed buffer zone laws that mandate bystanders maintain a certain distance from police activity. These laws are currently facing legal challenges based on First Amendment grounds.

Even without these laws, recording an ICE encounter is not without risks. Austin Rose, managing attorney at the Amica Center for Immigrant Rights, stated that while filming can be helpful, it might make some bystanders feel less inclined to intervene, and in most situations, they would not prevent the arrest.

Secretary Noem has suggested apps that crowdsource ICE activity or flag ICE sightings could obstruct federal law enforcement and potentially face punishment. However, any attempt to prosecute someone for warning of a potential arrest would likely contravene a substantial body of legal precedent upholding the First Amendment right to freedom of speech.

If someone witnesses an ICE arrest, it may be beneficial to learn the detainee’s biographical information – name, date of birth, and country of origin – if the witness intends to track the case using public databases or assist a reporter, lawyer, or relative in doing so, according to Michael Lukens, executive director of the Amica Center.

“Try and get someone’s name,” he suggested. “Ask if there’s someone you can call.” However, bystanders should also consider their own safety, especially if they are undocumented, and remember that no one has the right to interfere directly with an ICE operation.

Bystanders may ask ICE agents questions as long as they’re not interfering, but they are under no obligation to respond, Rose said. He added that it’s important to ask if they have a warrant.

The Trump administration considers being an undocumented immigrant in the United States a crime. According to border czar Tom Homan, “We’re going to enforce the immigration law. It’s not OK to be in this country illegally. It’s not OK to enter this country illegally. It’s a crime.”

However, when it comes to how immigration arrests are conducted and the rights of a detained person, the legal basis for the arrest is crucial, immigrant rights and legal experts told CNN. Crossing the border and being undocumented in the United States generally constitutes a civil offense, not a criminal one.

This distinction affects how ICE agents interact with the people they have apprehended, according to Lukens. For instance, agents “do not have to Mirandize someone because it’s not a criminal arrest,” he said, referring to the practice of informing someone of their legal rights once they are in custody.

The civil offense also affects the type of judge who will hear the case, whether an arrestee is entitled to legal representation, and how quickly the Department of Homeland Security can remove someone from the United States. Re-entering the United States after being deported is a felony, with penalties including fines and up to two years in prison, according to the U.S. Criminal Code. These penalties increase if the person is also charged with a drug-related or other criminal offense.

Everyone is entitled to protection from unreasonable search and seizure and excessive use of force under the Fourth Amendment of the U.S. Constitution, according to Jenn Borchetta, deputy director of the ACLU’s Criminal Law Reform Project.

“There needs to be a reasonable basis to believe the person they’re stopping is either in the country illegally or otherwise committing some kind of immigration violation,” she told CNN. Meanwhile, “the unnecessarily aggressive conduct we’ve seen from immigration agents is really concerning and puts everyone at risk.”