By Attorney Gail S. Seeram
Last week, we started to explain your rights when confronted by law enforcement officers and immigration officers. This week, we continue the discussion by focusing on your rights when in immigration custody and in removal/deportation proceedings.
Note, 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. The term “law enforcement officer” refers to an officer enforcing state criminal laws, whereas “immigration officer” refers to an officer enforcing federal immigration laws.
Q: What should I do if immigration officers arrest me?
A: Assert your rights. Non-citizens have rights that are important for their immigration cases. You do not have to answer questions. You can tell the officer you want to speak with a lawyer. You do not have to sign anything giving up your rights, and should never sign anything without reading, understanding and knowing the consequences of signing it.
If you do sign a waiver, immigration agents could try to deport you before you see a lawyer or a judge. The immigration laws are hard to understand. There may be options for you that the immigration officers will not explain to you.
You should talk to a lawyer before signing anything or making a decision about your situation. If possible, carry with you the name and telephone number of a lawyer who will take your calls.
Q: Do I have the right to talk to a lawyer before answering any law enforcement officers’ questions or signing any immigration papers?
A: Yes. You have the right to call a lawyer or your family if you are detained, and you have the right to be visited by a lawyer in detention. You have the right to have your attorney with you at any hearing before an immigration judge. You do not have the right to a government appointed attorney for immigration proceedings, but immigration officials must give you a list of free or low-cost legal service providers. You have the right to hire your own immigration attorney.
Q: If I am arrested for immigration violations, do I have the right to a hearing before an immigration judge to defend myself against deportation charges?
A: Yes. In most cases only an immigration judge can order you deported. But if you waive your rights, sign something called a “Stipulated Removal Order,” or take “voluntary departure,” agreeing to leave the country, you could be deported without a hearing. There are some reasons why a person might not have a right to see an immigration judge, but even if you are told that this is your situation, you should speak with a lawyer immediately—immigration officers do not always know or tell you about exceptions that may apply to you; and you could have a right that you do not know about.
Also, it is very important that you tell the officer (and contact a lawyer) immediately if you fear persecution or torture in your home country—you have additional rights if you have this fear, and you may be able to win the right to stay here.
Q: Can I be detained while my immigration case is happening?
A: In many cases, you will be detained, but most people are eligible to be released on bond or other reporting conditions. If you are denied release after you are arrested for an immigration violation, ask for a bond hearing before an immigration judge. In many cases, an immigration judge can order that you be released or that your bond be lowered.
Q: Can I call my consulate if I am arrested?
A: Yes. Non-citizens arrested in the U.S. have the right to call their consulate or to have the law enforcement officer tell the consulate of your arrest. Law enforcement must let your consulate visit or speak with you if consular officials decide to do so. Your consulate might help you find a lawyer or offer other help.
Q: What happens if I give up my right to a hearing or leave the U.S. before the hearing is over?
A: If you are deported, you could lose your eligibility for certain immigration benefits, and you could be barred from returning to the U.S. for a number of years or, in some cases, permanently.
The same is true if you do not go to your hearing and the immigration judge rules against you in your absence. If the government allows you to do “voluntary departure,” you may avoid some of the problems that come with having a deportation order and you may have a better chance at having a future opportunity to return to the U.S., but you should discuss your case with a lawyer because even with voluntary departure, there can be bars to returning, and you may be eligible for relief in immigration court.
You should always talk to an immigration lawyer before you decide to give up your right to a hearing.
Q: What should I do if I want to contact immigration officials?
A: Always try to talk to a lawyer before contacting immigration officials, even on the phone. Many immigration officials view “enforcement” as their primary job and will not explain all of your options to you, and you could have a problem with your immigration status without knowing it. Avoid making “InfoPass” appointments at the local immigration office if you are out of status or illegal in the U.S.- these officers do have the authority to detain illegal immigrants.
Q: What if I am charged with a crime?
A: Criminal convictions can make you deportable. You should always speak with your lawyer about the effect that a conviction or plea could have on your immigration status. Do not agree to a plea bargain without understanding if it could make you deportable or ineligible for relief or for citizenship. Also, if you are a permanent resident or “green card” holder, speak with an immigration lawyer before departing the U.S. if you have a criminal record as you may have issues with re-entry into the U.S.
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