ImmigrationTALKTM…What are my rights when dealing with Immigration (Part 1 of 2)?

Aug 28, 2011 News

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By: Attorney Gail S. Seeram

In the United States, non-citizens are persons who do not have U.S. citizenship, including lawful permanent residents, refugees and asylum seekers, persons who have permission to come to the U.S. for reasons like work, school or travel, and those without legal immigration status of any kind. Non-citizens who are in the United States—no matter what their immigration status—generally have the same constitutional rights as citizens when law enforcement officers stop, question, arrest, or search them or their homes.
However, non-citizens being questioned by an Immigration Officer or who are trying to enter the U.S. do not have all the same rights.  Note, law enforcement officer refers to an officer enforcing state criminal laws, whereas Immigration Officer refers to an officer enforcing federal immigration laws.
Q. What can I do if law enforcement officers want to question me?
A: You have the same right to be silent that U.S. citizens have, so the general rule is that you do not have to answer any questions that a law enforcement officer asks you. However, there are exceptions to this at ports of entry, such as airports and borders.
Q: Do I have to answer questions about whether I am a U.S. citizen, where I was born, where I live, where I am from, or other questions about my immigration status?
A: You do not have to answer any of the above questions if you do not want to answer them. But do not falsely claim U.S. citizenship. It is almost always a good idea to speak with a lawyer before you answer questions about your immigration status. Immigration law is very complicated, and you could have a problem without realizing it. A lawyer can help protect your rights, advise you, and help you avoid a problem.  Always remember that even if you have answered some questions, you can still decide you do not want to answer any more questions.
Immigration Officers can require non-immigrants to provide information related to their immigration status. However, even if you are a non-immigrant, you can still say that you would like to have your lawyer with you before you answer questions, and you have the right to stay silent if your answer to a question could be used against you in a criminal case.
Q: Do I have to show officers my immigration documents?
A: The law requires non-citizens who are 18 or older and who have been issued valid U.S. immigration documents to carry those documents with them at all times. (These immigration documents are often called “alien registration” documents. The type you need to carry depends on your immigration status. Some examples include an unexpired permanent resident card (“green card”), I-94, Employment Authorization Document (EAD), or border crossing card.) Failure to comply carry these documents can be a misdemeanor crime.
If you have your valid U.S. immigration documents and you are asked for them, then it is usually a good idea to show them to the officer because it is possible that you will be arrested if you do not do so. Keep a copy of your documents in a safe place and apply for a replacement immediately if you lose your documents or if they are going to expire.
If you are arrested because you do not have your U.S. immigration documents with you, but you have them elsewhere, ask a friend or family member (preferably one who has valid immigration status) to bring them to you. It is never a good idea to show an officer fake immigration documents or to pretend that someone else’s immigration documents are yours. If you are undocumented and therefore do not have valid U.S. immigration documents, you can decide not to answer questions about your citizenship or immigration status or whether you have documents.
If you tell an Immigration Officer that you are not a U.S. citizen and you then cannot produce valid U.S. immigration documents, there is a very good chance you will be arrested.
Q: What should I do if there is an immigration raid where I work?
A: If your workplace is raided, it may not be clear to you whether you are free to leave. Either way, you have the right to remain silent—you do not have to answer questions about your citizenship, immigration status or anything else. If you do answer questions and you say that you are not a U.S. citizen, you will be expected to produce immigration documents showing your immigration status. If you try to run away, the Immigration Officers will assume that you are in the U.S. illegally and you will likely be arrested.
The safer course is to continue with your work or calmly ask if you may leave, and to not answer any questions you do not want to answer.
Q: What can I do if immigration officers are arresting me and I have children in my care or my children need to be picked up and taken care of?
A: If you have children with you when you are arrested, ask the officers if you can call a family member or friend to come take care of them before the officers take you away. If you are arrested when your children are at school or elsewhere, call a friend or family member as soon as possible so that a responsible adult will be able to take care of them.
More importantly, when confronted by an Immigration Officer, ask for his/her name or ask for their card.  Immigration Officers tend to be aggressive, but assert your right to be silent and ask to call your family member or attorney if you are in custody.  Next week, we continue to discuss your rights when arrested by an Immigration Officer.

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