Should US Citizens Carry Their Passports?

More than 170 American citizens have been detained during raids by U.S. Immigration and Customs Enforcement, as well as during protests, according to an October investigation by ProPublica.

Among the detained were nearly 20 children. In some cases, citizens have been held for 24 hours without being able to call a lawyer or a loved one.

Regardless of potential legal recourse, the threat of mistakenly being taken into ICE detention — and potentially disappearing into labyrinthine immigration custody — has some U.S. citizens wondering online if they should carry their passport or other documents with them to prove their citizenship.

Of the 50 American citizens ProPublica found who were held after immigration agents questioned their citizenship, almost all were Latino. This fall, a Supreme Court decision allows immigration agents to consider race during sweeps in Los Angeles.

So amid the efforts of President Donald Trump’s administration to ramp up immigration enforcement across the country this year, what do legal experts and advocates say about how U.S. citizens can protect themselves — and whether carrying proof of citizenship is a good idea?

Do U.S. citizens have to carry their documents?

Richard Boswell, law professor at UC Law School, San Francisco, called it “most troubling” that U.S. citizens should be considering carrying proof of citizenship in this context, and that “there is no reason why government officers can or should be questioning people about their citizenship without any reason to suspect that they are non-citizens who are here unlawfully.”

“At the same time, I understand the practical warning about carrying the original of one’s passport as a way of making it less likely that you will be arrested,” Boswell said.

But “if they have evidence that I have broken the law or that I am a non-citizen in the US in violation, the law places the burden on [an immigration officer] to have that evidence before they arrest me,” Boswell said. “I don’t have the legal obligation to give them that information in advance.”

This very question — of whether U.S. citizens should need to prove their status — highlights the gulf between what should happen according to the law and what’s actually happening on the ground, said Bree Bernwanger, a senior attorney at ACLU NorCal.

“There is no legal requirement that U.S. citizens carry papers or have proof of their citizenship on them,” Bernwanger said. “There shouldn’t be a reason to have to carry your papers, because immigration agents aren’t supposed to stop people or detain them,” unless they have reasonable suspicion that the individual is unlawfully in the U.S., she said.

Nonetheless, citizens may choose to make practical decisions around carrying documentation anyway, Bernwanger said, because of “our immigration agencies that are violating the law here and that are causing this anxiety and concern and confusion.”

“People just kind of have to make their own decisions about what they’re comfortable with in the face of this lawless enforcement,” Bernwanger said. “And that’s not fair.”

Saira Hussain, a senior staff attorney at the Electronic Frontier Foundation, told the Huffington Post that U.S. citizens picked up by ICE “have a very strong civil rights suit because of the racial profiling involved and the detention that would be involved.”

The Department of Homeland Security did not respond to KQED’s request for comment. When contacted for comment by the reporters of October’s ProPublica investigation, DHS claimed that agents do not racially profile or target Americans.

“We have said it a million times: ICE does NOT arrest or deport U.S. citizens,” Assistant Secretary Tricia McLaughlin said in response to a New York Times that featured stories of detained Americans.

What kind of documentation could someone potentially use to prove their citizenship?

Proof of citizenship documents include:

• U.S. passport
• U.S. passport card
• U.S. birth certificate that has been issued by the city, county, or state of birth
• Consular Report of Birth Abroad
• Certificate of Naturalization
• Certificate of Citizenship

A Real ID does not prove citizenship, but it does prove your identity, and only immigrants with legal status in the U.S. can obtain one. However, there have been reports of ICE agents refusing to accept this form of ID.

If a person does decide to carry their actual, original documentation with them — like a passport — Bernwanger warned there’s a risk that ICE or CBP officers may confiscate it, or that your document could be otherwise lost in the confusion.

“There is a real risk that if you are stopped, if you’re detained, if you were arrested — even if it’s unlawful — that your documents will be held,” she said.

An alternative that’s being discussed online could be carrying a legible copy of your passport or other proof of citizenship. Even a black and white photocopy of your passport’s photo page or your passport card should be able to accomplish that, Bernwanger said.

What about having a photo of your documentation on your phone, to potentially show an immigration officer? Again, Boswell stressed the need for that officer to have evidence that a person is unlawfully present in the U.S. — and cautioned that even just unlocking your phone to show your proof of citizenship “could be viewed as permission [for an officer] to go rummaging through it in search of other things.”

Do non-citizens have to carry documentation with them?

Unlike citizens, U.S. law said that non-citizen immigrants should actually carry documentation of their legal status in the country with them at all times.

Immigrants with work authorization should carry documentation like a green card or an I-94 with them — and this should be their actual, original documentation, Bernwanger said.

Should I have multiple copies of my documentation anyway?

Given what Bernwanger called the “real risk that documents will be confiscated during encounters with immigration agents just based on what we’ve seen elsewhere,” she recommended that citizens and non-citizens alike should make multiple, clear copies of their immigration documentation and store them securely at home in a place they can be quickly located.

Bernwanger also advised you to “leave copies with your trusted family members,” who could then provide them in the event that you are detained by immigration enforcement.

This story has been updated to reflect that of the 50 American citizens ProPublica found who were held after immigration agents questioned their citizenship, almost all were Latino.