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Immigrant’s Rights in United States

Every person has Constitutional rights that must be respected regardless of race, ethnicity, national origin or religion. These rights have their origin in the Constitution of the United States and the Bill of Rights.

Immigrants, regardless of their immigration status, also have the same Constitutional rights when the person is inside United States. At the United States border, including airports and ports of entry, the individual rights are limited.

Person‘s rights when stopped by the police or immigration agent

  1. The right to remain silent. – There is a constitutional right to remain silent. If you decide to exercise this right, let the police officer or immigration agent know that you want to remain silent. You cannot be punished in any way or have an adverse treatment for exercising your right to remain silent.
  2. The right to refuse to consent to a search. – The police have the right to “pat down” your clothing if they suspect that you have a weapon, or search your car if they believe it contains evidence of a crime. For any other search of yourself, your home or your car, the police must have either a court order or your consent. Usually the police will ask for your consent. Remember that you have the right to refuse to consent to a search.
  3. The right to leave, if you are not under arrest. – If you are not under arrest, you have the right to leave. Make sure you ask the police officer or immigration officer whether you are under arrest. If the answer is no, then you have the right to leave. Let the officer know that you are leaving and do so calmly and silently.

Person‘s rights when questioned about the immigration status

  1. The right to remain silent. – If you are not a U.S. citizen, and you are over 18 years of age, carry your immigration documents with you at all times. If the police, immigration agents or other officials ask you for your immigration documents, you must show them if you have them. If you do not have them, you can exercise your right to remain silent, let the officer know you are exercising your right and do not answer any questions. However, if you decide to answer questions, do not lie and do not provide false documents.

Person‘s rights if the police or immigration agents come to your home

The police or immigration agents do not have the right to enter a home unless they have a search warrant or consent.

  1. The right to refuse consent to search your home. – You have the right to ask the officer or immigration agent to show you the search warrant. A valid search warrant allows the police to enter your home. Make sure the address listed on the warrant is your address. In addition, the search is limited to the areas and for the items listed in the search warrant.

An arrest warrant allows the police officer or immigration agent to enter the home of the person listed on the warrant if they believe the person is inside.

A warrant of removal or deportation does not allow officers to enter a home without consent.

If the officer or immigration agent does not have a warrant, the only way they are allowed to enter your home is if you consent to it. Remember, when asked by the officer “may we come in” or “may we look inside your home” or something similar, you have the right to say NO.

  1. The right to remain silent. – Even if the officer has a search warrant, you still have the right to remain silent.

Person‘s rights under arrest

  1. The right to remain silent. – Exercise your right to remain silent and let the officer or immigration agent know that you are exercising this right. After you tell the officer or agent that you wish to remain silent, do not answer any question, do not provide explanations, do not make comments. Just remain silent.
  2. The right to have an attorney present. – To exercise this right you have to let the officer or immigration agent know that you want to have an attorney present. In any criminal matter, a person has the right to be represented by an attorney at no cost, if you cannot afford to pay one. In an immigration case, a person has the right to be represented by an attorney, but the person must cover the expenses associated with that representation. Do not answer to any question, do not make any comments, do not provide any explanations, do not sign anything and do not make any decision without having your attorney present.
  3. The right to make a local phone call. – provide your family or attorney with your “A” number. The “A” number would allow them to locate where you are detained.

Person‘s rights when taken into custody by an immigration agent

  1. You have the right to an attorney. – Let the immigration agent know that you want to have your attorney present and contact one immediately. You are responsible for the legal fees associated with representation.
  2. You have the right to remain silent. – Let the immigration agent know that you want to remain silent. Do not answer any more questions, do not make any comments, do not give any explanations, do not say anything. Just remain silent until you talk to your attorney.
  3. Do not sign anything. – Ask to have your attorney present. Do not sign anything without consulting first with your attorney.

Person‘s rights at U.S. Borders

At United States borders, including airports and ports of entry, immigration agents may ask questions about a person‘s citizenship and what they are bringing into the country.

Even at the border, a person has the right to remain silent. However, if a person exercises the right to remain silent, the immigration officer may deny entry to the U.S. or detain the person for further search and/or questioning.

Immigration agents may search any person, any vehicle, and passenger belongings.   Agents do not need a warrant or consent. Agents do not even need a suspicion to conduct a search.

U.S. Customs and Border Protection (CBP) requires that searches be “conducted in a manner that is safe, secure, humane, dignified and professional.”

Final Notes

The best approach when being stopped, questioned, arrested or taken into custody by a police officer or immigration agent is to stay calm, be polite, be respectful, do not run, do not argue, do not resist or obstruct the police. Just exercise your rights in a peaceful way but out loud and in a clear voice, making sure the officer or agent can hear you.

Once you have expressed your decision to exercise your rights, do not say anything else, do not answer any questions, do not provide any explanations, remain silent and do not sign any document.

If you need an interpreter, let the officer or agent know. If you decide to answer questions, and you do not understand what is being asked, request an interpreter or ask the officer or agent to repeat the question. If you decide to sign documents, make sure you read all papers completely, and if necessary, ask for an interpreter to translate them to you. Remember, anything you say can and will be used against you in a court of law, and anything you sign could have a negative impact in your case.

If you feel your rights have been violated, do not argue, challenge or threaten the officer or agent. The correct way to handle police misconduct or violation of rights is to file a written complaint with the appropriate authority. For this purpose, make a note of everything that happened, the agency name, the officer‘s name, badge and patrol car numbers, and any details you could remember. If possible, get contact information of any witnesses.

Special immigration considerations for family of U.S. Armed Forces‘ members and enlistees

Family members of U.S. military service members and veterans as well as family members of people seeking to enlist in the U.S. Armed Forces can be the recipients of parole-in-place and deferred action.

These benefits can be granted to the spouse, children and parents of the active duty member, veteran or person seeking to enlist in the U.S. Armed Forces who can either be a U.S. citizen or a Lawful Permanent Resident.

Parole-in-place can be granted to aliens who are present in the United States without admission or parole. After parole-in-place is granted, the beneficiary could file a petition to adjust status to that of a lawful permanent resident while in the United States, without having to go through the consular processing and without having to leave United States in order to receive an immigrant visa.

On the other hand, Deferred Action can be granted to aliens who were inspected and lawfully admitted to the United States but overstayed their visas. A grant of deferred action allows the beneficiaries to apply for an Employment Authorization Document.

DACA – The U.S. policy that has helped thousands of illegal immigrants.

On June 15, 2012, the Secretary of the Department of Homeland Security (DHS) announced a new initiative that allows undocumented immigrants, who entered the United States before their 16th birthday, who are low enforcement priorities and meet certain requirements to request consideration of deferred action.

Deferred Action is an exercise of prosecutorial discretion where the Department of Homeland Security agrees to defer removal action against an individual for a certain period of time.

DACA, the Deferred Action for Childhood Arrivals does not confer a substantive right, immigration status or pathway to citizenship in United States. However, the beneficiary of a DACA petition could be authorized to work and obtain an employment authorization document. This deferred action is granted for a period of two years and could be renewed.

Beneficiaries of DACA have been able to attend post-secondary institutions of education, improving their economic opportunities and social well-being.