Even though you are not a citizen or permanent resident of the United States, you are guaranteed most of the same rights during your time in the U.S. Some of these rights include:
If immigration officers, police officers, or other law enforcement officials detain you, you are not under any obligation to speak to them about your immigration or citizenship status, and no one can threaten to deport you without a court hearing and deportation order by a judge. The American Civil Liberties Union (ACLU) provides more information on your rights in the United States and how to handle different scenarios, including dealing with immigration questions when detained by law enforcement or other government officials.
The Fifth Amendment of the U.S. Consitution guarantees you the right to remain silent. It is not illegal to refuse to answer questions, and you’re under no obligation to answer any questions that make you uncomfortable or could be used against you. You may wish to speak with a lawyer before you agree to answer any questions law enforcement poses. Only a judge can order you to answer questions, and you do not have to speak to anyone, even if you have been arrested. NOTE: The only exception, which varies from state to state, is that refusing to give your name to law enforcement if they have detained you can be a crime. You still are not obligated to provide other information, such as your address or immigration status.
You have the right to speak with a lawyer before deciding to answer questions from law enforcement or government agents. You also have the right to have a lawyer present if you agree to be interviewed and to consult with that lawyer before answering questions posed during an interview. Once you tell an agent that you want your lawyer present, they should stop asking questions and should instead make further contact with you through your lawyer. It is the lawyer’s job to protect your rights. You do not have to have a lawyer ahead of time. If you do not have one, you can ask to speak with a lawyer before answering questions and have one assigned to you (note: the government does not have to provide a lawyer free of charge unless you are charged with a crime, but you may be able to obtain one for free or at a reduced rate through various organizations and legal resources).
As spelled out in the Miranda rights that law enforcement is required to read when arresting someone, anything you say to law enforcement, no matter how innocent or harmless it may seem, could be used against you or others during the prosecution of a crime. This is why the right to remain silent is such a fundamental Constitutional right — to protect you and others from being legally harmed by something misspoken or misconstrued. It is far better to stay silent than to lie to law enforcement — government agents are allowed to lie to you, but lying to a government agent is a crime. It’s far safer to say, “I choose to remain silent,” “I want to speak to a lawyer,” or “I don’t consent to a search.”
Unless an agent has a warrant issued by a judge, you are not obligated to allow them to search your home, office, or any other property. A search warrant is a court order authorizing law enforcement to conduct a search under specific circumstances. If the officer approaching you and asking to perform a search does not have a warrant, you should say, “I do not consent to a search,” and call a lawyer. If an officer conducts a warrantless search, do not interfere. Interfering likely will not stop the search from happening, and you could be arrested. Instead, make it clear that you do not consent to the search and speak to your lawyer.
Keep in mind that other occupants of your home, such as a guest or roommate, can consent to a search if the agent believes that person has the authority to do so. Your employer can grant officers consent to search your office/workspace without your permission.
If agents come to conduct a search and you’re present, you can ask to see the warrant. The warrant must detail the places to be searched and the items (or people) they can remove from the premises. Tell the agents that you don’t consent to the search, so they cannot go beyond what the warrant authorizes. You should also ask if you can watch the search as it’s conducted. While agents are not obligated to allow this, you should do so if they allow it. You will want to take notes of each officer’s name, badge number, and government agency, specifics of where they searched, and what (if anything) they took. Other people present should also observe the search as witnesses to what is happening. If an agent asks you to give something to them (such as documents or your laptop), check the warrant to see if the requested item is listed. Do not consent to officers taking anything not listed on the warrant without speaking to a lawyer. If asked questions during the search, you can remain silent and choose not to answer.
No, you are not obligated to answer questions if you’re arrested. You should immediately ask to speak to a lawyer and repeat this request to any officers/agents who try to question you. It’s best to always talk with a lawyer before answering any questions.
You can refuse to answer questions at any time. Even if you’ve already answered some questions, you can refuse to answer further until speaking with a lawyer.
First, ask if you’re free to go. If you are, consider walking away without answering questions. If the officer says you’re not under arrest but not free to go, they are detaining you. Police have the right to pull down your exterior clothing if they suspect you might be armed and dangerous. If officers try to search beyond this, assert your rights by clearly stating you don’t consent to a search. They may continue searching anyway; if they do, do not resist. You’re not obligated to answer any questions.
In some states, it may be considered illegal not to give your name, and law enforcement may view it suspiciously and lead to arrest. Use your best judgment; if you feel sharing your name could be incriminating, you can assert your right to remain silent. While you may be arrested, asserting your right to silence may help you in the long run. Do not give a false name, which may be considered a crime.
If stopped in your vehicle, keep both hands where officers can see them. If you’re driving, you must provide your license, car registration, and proof of insurance. If the police attempt to search your vehicle, state clearly that you don’t consent to a search. They may still have legal grounds to search your car and do so anyway. Do not interfere; ensure you are clear in not consenting to the search. Police may try to question vehicle passengers individually, but no one is obligated to answer any questions.
A grand jury subpoena is a court order that compels you to testify in court about the information you might have regarding an investigation (though, in some cases, you might have legal grounds to stop a subpoena). While it is common for FBI agents to make such a threat to convince you to talk to them, if they wish to subpoena you, they will do so regardless of whether you speak to them. You should talk to a criminal lawyer immediately if you receive a subpoena. Receiving a subpoena does not mean you’re a criminal suspect, but anything you say might be used against you or others while prosecuting a crime.
Make sure to write down any identifying information about the officer, such as their name or badge number. It is your right to ask for this information. Find any witnesses to the mistreatment and get their names and contact information. If mistreatment has led to injury, seek medical attention and take photos of your injuries. Call a lawyer as soon as you can.
Be informed of your rights and assert them when contacted by an agent. If you don’t demand your rights or sign documents waiving your rights, DHS may deport you before you can speak to a lawyer or see an immigration judge. Never sign documents without reading and understanding them completely and knowing the consequences that may come with signing them.
Assert your right to speak to a lawyer. If possible, carry at all times the name and phone number of an immigration lawyer you can talk with. Immigration laws are complex and change often, so it’s important to speak to a lawyer specializing in this area of law.
Based on the current laws, regulations, and guidelines, you have the right to call your lawyer or family while detained, regardless of your immigration status. You also have the right to see a lawyer while being held by DHS. You have the right to have your lawyer present at any hearings before an immigration judge. While you don’t have the right to a government-appointed attorney, immigration officials must provide you with a list of free or low-cost lawyers if you’ve been arrested.
The above information may change as laws and regulations change, so it’s important to contact a lawyer.
You must carry with you any documents authorizing you to be in the U.S. Items like an I-94, Employment Authorization Card, or a current I-20 showing you’re in legal status will meet this requirement. Always keep these documents with you, as failure to do so could lead to being charged with a crime. Further, presenting fake or expired documents when requested by DHS could lead to deportation or criminal charges. You should always keep a copy of your immigration documents with a family member or friend you trust who can fax them to you if needed. You may need to show your identification to the police or border patrol agents if asked; consult your immigration lawyer about your specific case.
You don’t need to talk to any officers beyond proving your legal status. Once showing evidence that you’re in the United States legally, it may be in your best interests to remain silent and speak with your lawyer. Given the complexities of immigration law, your lawyer is best suited to protect your rights and help avoid you giving answers that could harm you. If DHS asks questions about your religious affiliations, political views, groups you’re part of, where you’ve traveled, or any other questions that don’t seem appropriate, you do not need to answer them. Officers can’t ask you for proof of your immigration status in private locations, such as your home, without a valid warrant. However, being asked for this information and failing to provide it may lead to the officer arresting you.
Yes. Under most circumstances, only an immigration judge can order your deportation. However, if you waive your rights or accept “voluntary departure,” you can be deported without a hearing in front of an immigration judge. You can also be deported without a hearing if you’ve been deported previously, have criminal convictions, came to the U.S. through a visa waiver program, or were arrested at the border. Consult with an immigration lawyer to discuss your options.
Yes. If you’re arrested in the U.S., you can call your consulate or have police inform the consulate of your arrest. If your consulate’s officials wish to speak or meet with you, law enforcement must allow them to do so.
Waiving your right to a hearing or leaving before the hearing’s complete can lead to you being barred from entering the United States for several years. You can also become ineligible for some immigration benefits. Before leaving prematurely or waving your right to a hearing, speak with an immigration lawyer to determine if doing so is your best course of action.
You shouldn’t contact DHS directly, even by phone, without consulting an immigration lawyer. Your lawyer’s job is to protect your rights and ensure you have all available information to make informed decisions. DHS agents may be more focused on enforcement than explaining to you every option available.
Yes. Customs officers have the right to stop and search any item or person entering the country from a port of entry. This applies to both citizens and non-citizens of the U.S.
Yes. The individuals screening you and your luggage are authorized to conduct further searching even if an initial screening doesn’t indicate anything suspicious.
Airline pilots have the right to refuse any passenger on their flight if they believe the passenger poses a threat to the safety of the flight. Their decisions must be reasonable and based on their observations; they cannot base their decisions on ethnic or cultural stereotypes.
Everyone in the United States, regardless of age, gender, culture, race, citizenship status, etc., has the right to remain silent. Even if you are a minor (in the United States, this is anyone under 18 years old), you are not obligated to answer any questions posed to you by law enforcement during detainment.
You will typically be released to a parent or guardian if you’ve been detained in Juvenile Hall or a community detention facility. If you’re charged with a crime, you have the right to have an attorney appointed at no cost.
Students at public institutions, such as UMFK, have the same general First Amendment rights to express political views, hold meetings, pass out fliers, etc., as long as their activities don’t pose a threat or disruption nor violate legitimate school policies. You cannot be singled out because of your political or religious views or based on your ethnicity.
If a school official has justifiable suspicion that you’re involved in criminal activities or carrying prohibited items (such as weapons or illegal drugs, for example), they can search your backpack without a warrant. As with any warrantless search, clearly state that you don’t consent to the search but do not resist or attempt to interfere with it; doing so could lead to criminal charges.
Remember: it is illegal for law enforcement officers to perform stops, arrests/detainments, removals, or searches based solely on your race, ethnicity, religion, gender, or nation of origin.
Adapted from Know Your Rights, produced by The National Lawyers Guild, S.F. Bay Area Chapter, the ACLU of Northern California, and the American Arab Anti-Discrimination Committee (ADC-SF), available online through Pace University.