Undocumented Immigrants’ Constitutional Rights

Noncitizens or aliens, including undocumented immigrants, enjoy certain constitutional rights when they have come within the territory of the United States and voluntarily developed substantial connections with this country.^[1] But the constitutional rights do not apply to an alien who seeks initial admission to the United States.^[2]

The constitutional rights include those under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments.

The First Amendment to the United States Constitution guarantees the people’s rights to free speech, association, and religion, and to petition the government for a redress of grievances.

The Fourth Amendment protects the people against unreasonable searches and seizures by the government. But a Terry investigatory stop is allowed if it is based on reasonable suspicion supported by objective facts that the individual being stopped is engaged in criminal activity.^[3]

The Fifth Amendment creates several rights relating to both criminal and civil legal proceedings. In criminal cases, the Fifth Amendment guarantees the accused the right to a grand jury and not to be tried twice for the same offense (double jeopardy), and protects the accused against self-incrimination (or the right to remain silent).  It also requires due process of law (fair procedure and trials) when a person is denied “life, liberty or property” and just compensation when the government takes private property for public use.  

The Sixth Amendment guarantees people accused of crimes the right to a speedy and public trial, the right to an impartial jury, the right to confront with adverse witnesses and present their own witnesses, the right to a lawyer, and the right to be informed of the offense charged. 

The Fourteenth Amendment says: “Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In addition, although there is no right to “public education” under the Constitution, the landmark case, Plyler v. Doe Texas v. Certain Named and Unnamed Undocumented Alien Children, 457 U.S. 202 (1982), has nonetheless established that undocumented school-age children are entitled to free public education under the Equal Protection Clause of the Fourteenth Amendment. The Plyler Court reasoned that the minor children of illegal immigrants “can affect neither their parents’ conduct nor their own status,” and thus, exclusion of them from public schools would run afoul of the basic concept of the US system that “legal burdens should bear some relationship to individual responsibility or wrongdoing.” Id., at 220.   

In a word, know your constitutional rights and exercise them when you can and so desire.^[4]

What are your rights if an Immigration & Customs Enforcement (ICE) officer visits your home in the US?

If you are undocumented and ICE agents knock on your door, do not panic. Keep in mind that a person’s home receives special protection under the Fourth Amendment because it is the very core guarantee of the Amendment that a man has the right to “retreat into his home and there be free from unreasonable governmental intrusion.”^[5]   

• You do not have to open the door.
  • ICE agents cannot legally come inside your home unless they have a valid search or arrest warrant signed by a judge, your valid consent, or the existence of a justified exigency.
  • If the officers say they have a warrant in their possession, ask them to slide it under the door or hold it up to a window so you can see it.
  • Make sure that the warrant has your correct name and address on it and has been signed by a judge. Otherwise, you do not have to open the door or let the officers inside your home.
  • If at any point you decide to speak with the officers, you do not need to open the door to do so. You can speak to them through the door or step outside and close the door.^[6] Keep them outside the entrance of your home.

• You have the right to remain silent.
  • You do not need to speak to the immigration officers or answer any questions.
  • When asked questions such as where you were born or how you entered the United States,^[7] you may refuse to answer or remain silent.^[8]
  • If you choose to remain silent, tell the officer clearly and loudly that you want to invoke the Fifth Amendment right to remain silent. Simply remaining silent does not amount to express invocation of the right as required.
  • You may refuse to show identity documents that say what country you are from.^[9]
  • Do not lie or show any false documents. It is a federal crime to lie to federal officers.[10]

• You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer.
  • If you have a lawyer, you have the right to talk to them.
  • If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers.
  • You also have the right to contact your consulate which may be able to assist you in locating a lawyer.
  • You can refuse to sign any paperwork until you have had the opportunity to speak to a lawyer.
  • If you choose to sign something without speaking to a lawyer, make sure you fully understand what the document exactly says and means before you sign it.
    

What are your rights if an ICE officer stops you on the street or in a public place?

• You have the right to remain silent. You do not need to speak to the immigration officers or answer any questions.
  • You may ask if you are free to leave. If the officer says no, which means you are seized by the officer,^[11] you may exercise your right to remain silent.
  • You do not need to speak to the officers or answer any questions.
  • When asked questions such as where you were born or how you entered the United States, you may refuse to answer or remain silent.
  • If you choose to remain silent, tell the officer clearly and loudly that you want to invoke the Fifth Amendment right to remain silent. Simply remaining silent does not amount to express invocation of the right as required.
  • You may refuse to show identity documents that say what country you are from.
  • Do not lie or show any false documents.

• You may refuse a search. If you are stopped for questioning but are not arrested, you do not have to consent to a search of yourself or your belongings, but an officer may “pat down” (also known as “stop and frisk” ) your clothes if the officer suspects you have a weapon.

• You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer.
  • If you have a lawyer, you have the right to talk to them.
  • If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers.
  • You also have the right to contact your consulate which may be able to assist you in locating a lawyer.
  • You can refuse to sign any paperwork until you have had the opportunity to speak to a lawyer.
  • If you choose to sign something without speaking to a lawyer, make sure you fully understand what the document exactly says and means before you sign it.

What are your rights if an ICE officer comes to your workplace (employee)?

• Do not panic and do not run away. If you are frightened and feel like you need to leave, you can calmly walk toward the exit.^[12]
  • If you are stopped, you may ask if you are free to leave. If the officer says no, do not try to exit the building.
  • If you are questioned, you may tell them you want to remain silent.
  • If you choose to remain silent, tell the officer clearly and loudly that you want to invoke the Fifth Amendment right to remain silent. Simply remaining silent does not amount to express invocation of the right as required.

• You have the right to remain silent. You do not need to speak to the immigration authorities or answer any questions.
  • When asked questions such as where you were born or how you entered the United States, you may refuse to answer or remain silent.
  • If you choose to remain silent, tell the officer clearly and loudly that you want to invoke the Fifth Amendment right to remain silent.  Simply remaining silent does not amount to express invocation of the right as required.
  • If you are asked to stand in a group according to immigration status, you do not have to move, or you can move to an area that is not designated for a particular group.^[13]
  • You may refuse to show identity documents that say what country you are from.
  • Do not lie or show any false documents.

• You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer.
  • If you have a lawyer, you have the right to talk to them.
  • If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers.
  • You also have the right to contact your consulate which may be able to assist you in locating a lawyer.
  • You can refuse to sign any paperwork until you have had the opportunity to speak to a lawyer.
  • If you choose to sign something without speaking to a lawyer, make sure you fully understand what the document exactly says and means before you sign it.

Consider the possible adverse consequences of invocation of the right to remain silent in immigration proceedings

The right against self-incrimination or the right to remain silent can be invoked in civil proceedings where the answers might incriminate a party asserting the right in future criminal proceedings.^[14]  Yet unlike in criminal proceedings, the trier of fact, the jury or the judge in a bench trial, in a civil case is permitted to draw an adverse inference based on the refusal to testify by a party in response to probative evidence proffered against the party.^[15]  And immigration court proceedings are determined as civil in nature.^[16]

Immigration court proceedings begin when the DHS mails or delivers the charging document to an alien and files it with the immigration court. On or after April 1, 1997,  Form I-862, Notice to Appear, is used by DHS as the charging document to commence the removal proceedings instead of the previous forms I-221 (Order to Show Cause) in deportation proceedings and I-122 (Notice to Applicant Detained for Hearing) in exclusion proceedings.

In immigration court proceedings, an alien’s silence alone, without more, cannot be used as the basis to draw an adverse inference against the alien.  If there is other evidence such as alienage, prior admission of alien, adverse testimony of others, or the circumstances of the alien’s entry, however, remaining silence may leave the alien open to adverse inferences, which may result in a finding of deportability against the alien.^[17]

Footnotes:

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[1]      United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).

[2]    Bridges v. Wixon, 326 U.S. 135, 161 (1945) (Justice Murphy’s concurring opinion, “The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores.”)

[3]    See Terry v. Ohio, 392 U.S. 1 (1968);  Brown v. Texas, 443 U.S. 47, 51 (1979) (internal citations omitted).

[4]    Regarding your rights at home, at work, and in public places when encountering immigration officers, you may also go to National Immigration Law Center at https://www.nilc.org & American Immigration Lawyers Association at https://www.aila.org for relevant information.

[5]    See Payton v. New York, 445 U.S. 573, 585 (1980) (“As the Court reiterated just a few years ago, the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’”) (internal citation omitted.)  Searches and seizures inside a home without a warrant are by and in themselves unreasonable absent exigent circumstances. Id. at 586.  The breach of the entrance to an individual’s home is a fundamental intrusion of the individual’s privacy because “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion.” Id. at 589-590.

[6]     It is recommended that you do not say anything about where you were born or how you entered the United States because these statements can be used against you in deportation (or removal) proceedings.

[7]     An alien’s entry into the United States without inspection or without a valid entry document such as a green card is a federal criminal offense.

[8]     Matter of Carrillo, 17 I&N Dec. 30, 33 (BIA 1979) (The respondent “could therefore refuse to answer, on Fifth Amendment grounds, any question he reasonably believes might have a tendency to incriminate him or furnish proof of a link in a chain of evidence”) (citing Matter of R-, 4 I&N Dec. 720, 721 (BIA 1952)).

[9]    Identification documents such as a foreign passport can establish alienage, which is initially the government’s burden to prove in removal proceedings.

[10]   See 18 U.S.C. § 1001 (2012) (Laying forth the penalties for the United States government if it partakes in falsifying information).

[11]   Terry v. State of Ohio, 392 U.S. 1, 16 (1968) (“W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person.”)

[12]   Do not make the immigration officers reasonably believe that you have a flight risk.

[13]   See, for example, Plyler, 457 U.S. at 201 (“[T]he Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government.”) (internal citation omitted).

[14]   An individual may refuse to answer questions “put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Baxter v. Palmigiano Enomoto v. Clutchette, 425 U.S. 308, 316 (1976) (internal citation omitted).

[15]   Baxter, 425 U.S. at 318. (“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them[.]”)

[16]   INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).

[17]   Matter of Guevara, 20 I&N Dec. 238, 242 (BIA 1991).

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This blog does not, and is not intended to, constitute legal advice; instead, it is for general informational purposes only.  The information presented in this blog may not reflect the most up-to-date legal developments and is subject to change at any point in time.   The information presented in this blog does not create an attorney-client relationship.  Readers of this blog should contact their attorney to obtain advice regarding any particular legal matter.  No readers should act or refrain from acting based on the information presented in this blog without first seeking legal advice from counsel in the relevant jurisdiction.  No representations are made that this blog is error-free.  Altaffer & Chen PLLC expressly disclaims all liabilities arising from any actions taken or refrained from based on the information presented in this blog.

11/10/2022