Immigrants and immigration rights have been in focus during the first couple of months of President Trump’s term in office. In one of his first executive orders, Trump barred nationals of certain countries from entering the United States. He also ordered immigration raids across the United States. The Immigration and Customs Enforcement (ICE), the federal law enforcement agency under the United States Department of Homeland Security (DHS), has conducted arrests and scheduled foreign nationals for deportation.
Concerns over the rights of the legal and undocumented immigrants during the arrests conducted by the ICE have arisen. Many arrested foreign nationals do not know that they have rights when they are arrested. But immigrants, including the undocumented, do have rights.
First, every person has the right to remain silent. Everyone has the right not to answer questions from the arresting officer or other government agents. Remaining silent is the best way to respond to the questions asked by the arresting officer and other government agents. Any information that the immigrant gives may be used against him or someone else by the government.
Immigrants must also be aware that arresting officers and government agents sometimes use trickery or lie to them in order to obtain information. Again, the best response is to remain silent. In addition, the immigrant must never lie to the arresting officer or any government agent because this would be a crime.
Next, every person arrested is entitled to speak to a lawyer, especially before speaking to any government officer. This is true regardless of the person’s guilt or innocence. Hence, the best course of action would be to ask to speak to a lawyer at the time of arrest. The foreign national does not have the right to a government-appointed attorney and must therefore hire his own attorney.
For all persons, even those who entered or stayed in the United States illegally, the United States Constitution provides rights which can be exercised.
First, under the Bill of Rights, undocumented immigrants are entitled to equal protection of the law. The constitutional guarantee of equal protection of the law does not distinguish between citizens or foreign nationals. The fact that one is an undocumented immigrant does not diminish or remove one’s right to seek redress for any wrongdoing by another.
Secondly, the Fifth Amendment guarantees the right of persons to remain silent. This means one may not be compelled to answer questions by a government agent. If the immigrant refuses to answer questions pertaining to his immigration status, for example, said immigrant may not be arrested or detained purely for such refusal.
Thirdly, the Fourth Amendment guarantees the right against unreasonable searches and seizures. No government agent may search one’s home or office without consent unless the agent has a valid search warrant issued by a judge. A valid search warrant must state in detail the places to be searched, and the things to be seized as these details indicate the limits of the warrant. The search or seizure cannot legally extend to places or things not stated in the warrant. Without such warrant, one may refuse to let the government agent in their house. A valid search warrant does not obligate one to answer the questions of the government agents enforcing such warrant. An exception is made in an emergency such as when a person inside is heard asking for help.
A foreign national may, of course, waive his right to a hearing and agree to leave the United States. In such case, such foreign national may lose the right to apply for immigration status and may find it difficult to re-enter the United States in the future.