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Posted September 28, 2001
THE FOLLOWING INFORMATION EXPLAINING AN
INDIVIDUAL'S LEGAL RIGHTS IS BEING PROVIDED
COURTESY OF THE NATIONAL LAWYERS GUILD. ALL
RECOMMENDATIONS AND OPINIONS EXPRESSED HEREIN
WERE DRAFTED BY THE NATIONAL LAWYERS GUILD,
WHICH IS SOLELY RESPONSIBLE FOR ITS CONTENT.
What rights do I have?
THE RIGHT TO REMAIN SILENT.
The Fifth Amendment of the Constitution gives
every person the right to remain silent in the
face of questions posed by any police officer or
government agent.
THE RIGHT TO BE FREE FROM "UNREASONABLE
SEARCHES AND SEIZURES." The Fourth
Amendment is supposed to protect your privacy.
Without a warrant, government agents are not
allowed to search your home or office and you
can refuse to let them in. Know, however, that
it is easy for the government to monitor your
telephone calls, conversations in your office,
home, car, or meeting place, as well as mail.
E-mail is particularly insecure. The government
has already begun stepping up its monitoring of
e-mails.
THE RIGHT TO ADVOCATE FOR CHANGE.
The First Amendment to the U.S. Constitution
protects the rights of groups and individuals
who peacefully advocate changes in laws,
government practices, and even the form of
government. However, the Supreme Court says that
it is not illegal for INS to target non-citizens
for deportation because of their First Amendment
activities, as long as it could deport them for
other reasons. This means INS could specially
target a student who worked without
authorization or a visitor who overstayed a visa
because it dislikes his or her speech, views or
associations with individual and groups.
CONSTITUTIONAL RIGHTS CANNOT BE
SUSPENDED - EVEN DURING A STATE OF EMERGENCY OR
WARTIME.
What should I do if agents come to
question me?
1. YOU DO NOT HAVE TO TALK TO THE
POLICE, FBI, INS, OR ANY OTHER LAW ENFORCEMENT
AGENT OR INVESTIGATOR.
Other than providing your name and address to a
police officer who is investigating a crime, you
are not legally obligated to talk to anyone: on
the street, at your home or office, if you've
been arrested, or even if you're in jail. If you
are driving a motor vehicle, you are required to
show your license and registration. Only a judge
has the legal authority to order you to answer
questions.
2. YOU DO NOT HAVE TO LET POLICE OR
OTHER LAW ENFORCEMENT AGENTS INTO YOUR HOME OR
OFFICE UNLESS THEY HAVE A SEARCH WARRANT OR
ARREST WARRANT.
Demand to see the warrant. A search warrant
must specifically describe the place to be
searched and the things to be seized. If they
have a search warrant, you cannot stop them from
entering and searching, but you should still
tell them that you do not consent to a search.
This will limit them to the scope of the search
authorized by the warrant. An arrest warrant
does not allow them to search your home or
office unless you consent to it. Say “I do not
consent to a search” loud and clear. Consider
having the person named on an arrest warrant go
outside rather than letting the police into your
home or office.
3. IF THEY DO PRESENT A SEARCH WARRANT,
YOU HAVE THE RIGHT TO MONITOR THEIR SEARCH AND
ACTIVITIES.
You have the right to observe what they do. You
have the right to ask them for their names and
titles. Take written notes including their
names, badge numbers, and what agency they are
from. Have your friends who are present act as
witnesses. Give this information to your lawyer.
A search warrant does not obligate you to answer
questions. Do not give them permission to enter
any part of your home or office, but remember
that actually interfering with the search is
unlikely to stop the search and likely to result
in your arrest. This is true even if the search
is not legal.
4. IF THE POLICE OR FBI OR INS OR ANYONE
ELSE TRIES TO ENTER YOUR HOME WITHOUT A WARRANT,
JUST SAY NO!
Police and other law enforcement agents are very
skilled at getting information from people. Many
people are afraid that if they refuse to
cooperate, it will appear as if they have
something to hide. Don't be fooled. The police
are allowed to (and do) lie to you. Although
agents may seem nice and pretend to be on your
side, they are probably seeking information
about the habits, opinions, and affiliations of
people not suspected of wrongdoing, with the end
goal of stopping political activity with which
the government disagrees. Trying to answer
agents' questions, or trying to "educate them"
about your cause can be very dangerous. You can
never tell how a seemingly harmless bit of
information that you give them might be used and
misconstrued to hurt you or someone else. And
keep in mind that lying to a federal agent is a
crime. The safest things to say are “I am going
to remain silent,” “I want to speak to my
lawyer,” and “I do not consent to a search.”
5. IF YOU ARE STOPPED ON THE STREET, ASK
IF YOU ARE FREE TO GO.
If you are stopped by the police, ask them why.
Remember that their answers may not be truthful
because they are allowed to lie to you. Ask “Am
I free to go?” If they say yes, then tell them
that you do not want to talk to them and that
you are going to walk away. Then do so. If they
answer no, then you are being detained. Being
detained does not necessarily mean you will be
arrested. They are entitled to frisk you. A
frisk is a pat down on the outside of your
clothing. If they search any further than this,
say clearly, “I do not consent to a search.”
They may continue anyway. You do not need to
answer any questions if you are detained or even
if you are arrested.
6. ANYTHING YOU SAY TO THE POLICE, FBI,
INS, ETC. CAN BE USED AGAINST YOU AND OTHERS.
Once you've been arrested, you cannot talk your
way out of it! Don't try to engage the cops in
dialogue or respond to their accusations.
Remember that it is common for them to tell you
things that are not true I order to get you to
talk to them. They may pressure you by saying
it’s unpatriotic not to answer, or that people
with nothing to hide would talk. Remember,
however, that even innocent people who have done
nothing wrong may say things that the government
will use against them or other people. This is
why the right not to talk is a fundamental
right. Lying to the government is a criminal
offense so, whatever you do, do not lie. Repeat
“I want to talk to my lawyer” to any officer
that questions you.
7. IF YOU ARE NERVOUS ABOUT SIMPLY
REFUSING TO TALK, TELL THEM TO CONTACT YOUR
LAWYER.
They should stop trying to question you once you
announce your desire to consult a lawyer. You do
not need to already have one. Remember to get
the name, agency, and telephone number of any
investigator who visits you, and contact the
National Lawyers Guild for help getting a
lawyer.
What is a "subpoena"?
A subpoena is an order from a judge requiring a
witness to come to court to testify. A grand
jury subpoena requires someone to testify in
front of a grand jury, the body that decides
whether or not to proceed against someone who
has been charged with a crime. Receiving a
subpoena does not mean that you are suspected of
a crime. It does mean that someone else has been
charged with a crime and that they believe you
have some relevant information. If you receive a
subpoena, contact a lawyer. It is common for
police to threaten you with a subpoena in order
to get you to talk to them. Don't be intimidated
by this because even if it does happen, you are
better off talking to the court after a subpoena
has been issued than talking to any law
enforcement officer without one.
What is a "material witness warrant"?
A material witness is a person believed to have
information that is important to the outcome of
a case. Usually, a witness is issued a subpoena
requiring them to testify in a court. A material
witness warrant is issued when there is reason
to believe that the witness will not comply with
a subpoena. An example of this is if the judge
believes that the person may hide from police or
leave the country. This type of warrant allows
the potential witness to be held in jail even
though he or she has not been charged with a
crime. Even a material witness warrant does not
require you to talk to law enforcement agents.
If you are being threatened with a material
witness warrant, contact a lawyer.
How should I respond to threatening
letters or calls?
If your home or office is broken into, or
threats have been made against you, your
organization, or someone you work with, share
this information with everyone affected. Take
immediate steps to increase personal and office
security. You should discuss with your
organization and with a lawyer whether and how
to report such incidents to the police and the
advisability of taking other legal action. If
you decide to make a report, do not do so
without a lawyer present. See the contact
information below for groups you can call if you
are receiving any threats.
What if I suspect surveillance?
Prudence is the best course, no matter who you
suspect, or what the basis of your suspicion. Do
not hesitate to confront suspected agents
politely, in public, with at least one other
person present, and inquire about their
business. If the suspect declines to answer, he
or she at least now knows that you are aware of
the surveillance. If you suspect government
agents are monitoring or harassing you, report
this to the National Lawyers Guild.
WHAT IF I AM NOT A CITIZEN?
The most important thing to do is carry with you
ALL THE TIME the name and number of an attorney
who will take your calls. If you are a legal
permanent resident, you should carry your green
card as well. Navigating the immigration system
by yourself is extremely difficult. Congress is
considering new laws that will give INS extra
power to swiftly deport people it thinks are
“terrorists.” There also are many laws on the
books that INS could decide to use against
people it wishes to arrest or detain. As soon as
you encounter an INS agent, call your attorney.
If you can’t do it right away, keep trying.YOU
must assert these rights; INS will not do it for
you. If you do not demand these rights or if you
sign documents waiving your rights, the INS may
deport you before you see either an attorney or
a judge. Leaving the U.S. in this way may have
serious consequences for your ability to later
enter or to gain legal immigration status in the
U.S.
I. KNOW AND ASSERT YOUR RIGHTS!
The immigration laws are complex and many
changes are being proposed in response to
September 11, the following information may
change. You must consult an attorney to know
your rights.
Based on existing laws, regulations and INS
guidelines, non-citizens generally have the
following rights, regardless of your immigration
status:
a.
You have the right to speak to an attorney
before answering any questions or signing any
documents.
You have the right to call an attorney or your family if you are
detained and you have the right to be visited by
an attorney in detention. You have the right to
have your attorney with you at immigration
hearings with INS. You do not, however, have the
right to a government-appointed attorney, so you
must hire one or find someone who will represent
you for free. If you need help finding an
attorney, contact the organizations at the end
of this document and they will try to find
attorneys to help you.
b.
If you are arrested or detained, the INS must
decide in 48 hours whether to put you into
immigration proceedings and whether to keep you
in custody or to release you on bond. Under a new regulation issued on September 17, the INS has an
“additional reasonable period of time” in the
event of “an emergency or other extraordinary
circumstance” to make the decisions whether to
keep you or release you. This regulation may be
illegal. It is very new, so make sure your
attorney talks to national immigration rights
organizations if this is the reason INS is
keeping you in detention (see the end of the
document for organizations).
c.
You have the right to request release from
detention even if INS hasn’t said why it wants
to deport you. In most cases you have the right to request release from detention by
paying a bond if necessary, or to request a bond
hearing before an immigration judge - even if
you have not been formally charged with an
immigration violation. However, the law does not
set a specific period of time by which an
immigration judge must hear your case. In some
cases, the law mandates detention. These
circumstances include persons charged with
terrorism or with certain criminal convictions.
The law also authorizes the continued detention
of persons who an immigration judge finds are
dangers to society or a flight risks.
d.
In most cases, you have the right to a hearing
before an immigration judge to determine whether
you have violated the immigration laws.
If you have criminal convictions, were picked up
by INS when you came into the U.S., or have been
ordered deported in the past, you must talk to
an attorney about whether you have this right
and what other legal alternatives you might
have.
e.
TALK TO AN IMMIGRATION LAWYER BEFORE LEAVING THE
U.S.
Non-citizens may be barred from coming back to
the U.S. if they fall into certain categories of
people barred from entering. This includes some
lawful permanent residents and applicants for
green cards. Some Non-citizens who have been in
the U.S. without INS permission may be
permanently barred from re-entering. In
addition, some Non-citizens who leave the U.S.
and return without INS permission may be swiftly
removed from the U.S. if they end up in
immigration proceedings.
II. IN GENERAL:
ALWAYS TRY TO CONSULT WITH AN ATTORNEY
BEFORE TALKING TO THE INS (EVEN ON THE PHONE).
Many INS officers view “enforcement,” meaning
deporting people, as their primary job. They do
not believe that explaining immigration options
is part of their job, and most will readily
admit this. (Non-citizens who are victims of
domestic abuse should speak with an expert in
both immigration law and domestic violence.) A
non-citizen should always speak with an
immigration law expert before speaking to the
INS either in person or by telephone.
YOU DO NOT HAVE TO REVEAL YOUR
IMMIGRATION STATUS. If you have legal
immigration status, you may wish to explain this
to an INS agent. But even this you are better
off doing only if an attorney is with you. The
questioning may end at this point. BUT, if INS
asks anything about your political views,
organizations you belong to, things you have
said, where you have traveled, or other
questions that seem inappropriate, you do not
have to answer them.
IF YOU ARE A FOREIGN NATIONAL ARRESTED
IN THE U.S., YOU HAVE THE RIGHT TO CALL YOUR
CONSULATE or to have the police inform
the consulate of your arrest. The police must
allow your consul to visit or speak with you.
Your consul might assist you in finding a lawyer
or offer other help, such as contacting your
family. You also have the right to refuse help
from your consulate.
IMPORTANT NOTE: The rights
outlined above apply to Non-citizens who are
inside the United States. Foreign nationals at
the border (air or land) who are seeking to
enter the United States are subject to
additional restrictions and do not have all the
same rights.
CONTACT INFORMATION
National Lawyers Guild
National office: (212) 627-2656,
www.nlg.org
National Immigration Project of the
National Lawyers Guild
(617) 227-9727,
www.nationalimmigrationproject.org
National Immigration Law Center
www.nilc.org
American-Arab Anti-Discrimination Committee
(ADC)
(202) 244-2990
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