What to do if questioned by Police, FBI, Customs Agents or Immigration Officers
Also see Deportation Information
What if the police or FBI contact me?
What if I am not a citizen and the US DEPARTMENT OF HOMELAND SECURITY contacts me?
What are my rights at airports?
I. What rights do I have?
Whether or not you’re a citizen, you have these constitutional rights:
The Right to Remain Silent.
The Fifth Amendment to the U.S. Constitution gives every person the right not to answer questions asked by a 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, police or government agents may not search your home or office without your consent, and you have the right to refuse to let them in. They can enter and search without a warrant in an emergency. New laws have expanded the government’s authority to conduct surveillance. It is possible that your e-mail, cell and other telephone calls, and conversations in your home, office, car or meeting place are being monitored without your knowledge.
The Right to Advocate for Change.
The First Amendment to the U.S. Constitution protects the rights of groups and individuals who advocate changes in laws, government practices, and even the form of government. However, the US DEPARTMENT OF HOMELAND SECURITY can target non-citizens for deportation because of their First Amendment activities, as long as it could deport them for other reasons.
CONSTITUTIONAL RIGHTS CANNOT BE SUSPENDED- EVEN DURING A STATE OF EMERGENCY OR WARTIME– AND THEY HAVE NOT BEEN SUSPENDED BY THE “USA PATRIOT ACT” OR OTHER RECENT LEGISLATION!
II. What if the police or FBI contact me?
What if agents come to question me?
YOU DO NOT HAVE TO TALK TO THE POLICE, FBI, US DEPARTMENT OF HOMELAND SECURITY, OR ANY OTHER LAW ENFORCEMENT AGENT OR INVESTIGATOR. You can’t lawfully be arrested for refusing to identify yourself on the street, although this may make the police suspicious, and police and other agents do not always follow the law. If you are driving a vehicle, you must show your license and registration. Otherwise, you do not have to talk to anyone. Only a judge has the legal authority to order you to answer questions.
Do I need a lawyer?
IF YOU ARE CONTACTED, TELL THE AGENT YOU WANT TO TALK TO A LAWYER. Once you say this, they should stop trying to question you and should make any further contact through your lawyer. You have the right to say that you want to talk to a lawyer even if you do not already have one. Remember to get the name, agency, and telephone number of any investigator who calls or visits you, and call the Emerald Isle, or an experienced criminal or immigration lawyer, before deciding whether to answer questions. If you do agree to be interviewed, you have the right to have a lawyer present. The government does not have to provide you with a free lawyer unless you are charged with a crime, but the Emerald Isle or another organization may be able to find you a lawyer for free or a reduced rate.
If I refuse to answer questions or if I say I want a lawyer, won’t it seem like I have something to hide?
TALKING TO THE FBI OR OTHER AGENTS CAN BE DANGEROUS. You can never tell how a seemingly harmless bit of information might be used to hurt you or someone else. That is why the right not to talk is a fundamental right under our Constitution. The FBI is not just trying to find terrorists, but is gathering information on immigrants and activists who have done nothing wrong. And keep in mind that even though they are allowed to and do lie to you, 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.”
Can agents search my home, apartment or office?
YOU DO NOT HAVE TO LET POLICE OR OTHER LAW ENFORCEMENT AGENTS INTO YOUR HOME OR OFFICE UNLESS THEY HAVE A SEARCH WARRANT. However, your roommate or guest can legally consent to a search of your house if the police believe that person has the authority to give consent and your employer can consent to a search of your office. Do not try to physically interfere with the police or agents, even if the search is illegal, or you will likely be arrested. Say “I do not consent to a search.” Do not answer any questions. Call the Emerald Isle, or an experienced criminal or immigration lawyer.
If agents come to arrest me in my home, can they search my home?
They can search the area near where you are arrested but not your entire house, unless they have a search warrant.
What if I am not at home?
Under the new “USA Patriot Act”, under certain circumstances agents may surreptitiously search and not notify you until afterward, perhaps a long time afterward. It is uncertain whether this provision will stand up in light of the Fourth Amendment. If you suspect your home or office has been searched or that you are being surveilled, contact the Emerald Isle or an experienced criminal or immigration lawyer.
What if they do have a search warrant?
DEMAND TO SEE THE WARRANT. The warrant must tell in detail the places to be searched and the people or things to be seized. If the police have a 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 search only where the warrant authorizes. Ask if you are allowed to watch the search and if so, watch and take notes including names, badge numbers, and what agency the officers are from. Have friends act as witnesses. Give this information to your lawyer. If the officers ask you to give them documents, your computer, or anything else, look to see if the item is listed in the warrant. If it is not, do not consent to them taking it without talking to a lawyer. Even if they have a search warrant, you still do not have to answer any questions. Call the Emerald Isle for help getting a criminal lawyer.
What if the police stop me on the street?
ASK IF YOU ARE FREE TO GO. If they say yes, walk away. If you are not free to go, you are being detained, but this 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. Do not consent to any further search. But if they continue, or in some other way violate your rights, stay calm and don’t physically resist police or agents. You will only be hurt and arrested. Stick to “I don’t consent, I want to speak to my lawyer”; get the officer’s name, badge number, and agency; and call a lawyer or the Emerald Isle at your first opportunity. You do not have to answer questions or give a statement if you are detained or even if you are arrested.
Do I have to give my name?
Legally, you do not have to give your name unless they suspect you of a crime, but refusing to give your name is likely to arouse suspicion. Be aware that police/ agents may be carrying a list of deportable aliens. Giving a false name could be a crime. If you are driving a car, you must show them your license, registration and proof of insurance, but you do not have to consent to a search, although the police may have legal grounds to search your car anyway.
What if the police or FBI threaten me with a grand jury subpoena if I refuse to talk?
A grand jury subpoena is a written order for you to go to court and testify about information you may have. It is common for the FBI to threaten you with a subpoena to get you to talk to them. Don’t be intimidated. This is frequently an empty threat, and if they are going to subpoena you, they will do so anyway. Receiving a subpoena to testify before a grand jury doesn’t mean that you are suspected of a crime. And you may have legal grounds to stop the subpoena or to refuse to answer questions before the grand jury. If you do receive a subpoena, call the Emerald Isle or an experienced criminal lawyer right away.
What if I am treated badly by the police or FBI?
Try to remember the officer’s badge number and/or name. You have the right to ask the officer to identify himself. Write down everything as soon as you can and try to find witnesses. If you are injured, see a doctor and take pictures of the injuries as soon as possible. Call the Emerald Isle as soon as possible.
III. What if I am not a citizen and the US DEPARTMENT OF HOMELAND SECURITY contacts me?
Assert your rights. If you do not demand your rights or if you sign papers waiving your rights, the US DEPARTMENT OF HOMELAND SECURITY may deport you before you see a lawyer or an immigration judge.
Talk to a lawyer. Always carry with you the name and telephone number of an immigration lawyer who will take your calls. You must carry your immigration papers such as a “green card”,
I-94, or work authorization with you as well. The immigration laws are hard to understand and there have been many changes since September 11. More changes are likely. US DEPARTMENT OF HOMELAND SECURITY will not explain your options to you. As soon as you encounter a US DEPARTMENT OF HOMELAND SECURITY agent, call your attorney. If you can’t do it right away, keep trying.
Always talk to an immigration lawyer before leaving the U.S. Even some legal permanent residents and applicants for LPR can be barred from returning.
Based on today’s laws, non-citizens usually have the rights below, no matter what your immigration status. However, this information may change, which is why it’s important to talk to an immigration lawyer. Also, foreign nationals trying to enter the U.S. at the border or airport do not have all of these same rights.
You usually have the right to talk to a lawyer before answering any questions or signing any papers. 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 any hearing before an immigration judge. You do not have the right to a government-appointed attorney, so you must hire one or find someone who will represent you for free.
You do not have to answer questions about your immigration status or any other
questions. You are better off talking to a lawyer first.
If you are arrested or detained, the US DEPARTMENT OF HOMELAND SECURITY 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. However, under new laws, the US DEPARTMENT OF HOMELAND SECURITY has an “additional reasonable period of time” past 48 hours in the event of “an emergency or other extraordinary circumstance” to decide whether to keep you in custody. Make sure your attorney talks to national immigration rights organizations if the US DEPARTMENT OF HOMELAND SECURITY is keeping you in detention on the basis of these new laws.
In most cases, you have the right to ask for release from detention by paying a bond, or to ask for a bond hearing before an immigration judge. You have these rights even if you have not been charged by the US DEPARTMENT OF HOMELAND SECURITY. The law does not say when an immigration judge must hear your case. The judge may order you to stay in detention if he or she finds that you are a danger to society or might try to get away. In some cases, the law says you can’t be released if you are charged with terrorism or have certain criminal convictions.
In most cases, you have the right to a hearing before an immigration judge before you can be deported. But if you waive (give up) your rights or take “voluntary departure” (agree to leave), you could be deported without a hearing. If this happens, you may never be able to enter the U.S. legally again or get legal immigration status. If you have criminal convictions, were arrested at the border, 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.
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.
IV. What are my rights at airports?
You gave airport personnel permission to scan you and your bags by buying a ticket and going to the airport. They can do additional random searches of persons and property regardless of whether the initial scan turns up anything suspicious. If the scan does disclose something that might be a weapon, the law is unclear whether you have the right to leave the airport rather than being searched. The airplane pilot can refuse to fly a passenger if he or she believes the passenger is a threat to the safety of the flight. And if you are entering the country, the U.S. Customs Service has the right to stop and search every person and item. But you should not be barred from flying or subjected to special searches or harassment on the basis of your race, sex, religion, national origin, or political beliefs. If you believe this is the case, call the Emerald Isle or an experienced criminal or immigration lawyer.
What if I am under 18? Do I have to answer questions?
No. Minors too have the right to remain silent. You do not have to talk to the police, probation officers, or school officials.
What if I am detained?
If you are detained at a community detention facility or Juvenile Hall, you normally must be released to a parent or guardian. If charges are filed against you, you have the right to have a lawyer appointed to represent you at no cost.
Do I have rights at school?
Public school students have the First Amendment right to politically organize at school by passing out leaflets, holding meetings, publishing independent newspapers, etc., just so long as those activities do not disrupt classes. Students can be suspended or expelled from school only if they violate the law or disrupt school activities. You have the right to a hearing, with your parents and an attorney present, before being suspended or expelled.
Students can have their backpacks and lockers searched by school officials without a warrant, if they suspect that you are involved in criminal activity or carrying drugs or weapons. Do not consent to the police or school officials searching your property, but do not physically resist or you may face criminal charges. Students can be stopped and questioned by school officials at school, for example if you are not in class. However, they should not stop and question you for engaging in political activity or because of your ethnicity or religion. If you think your rights have been violated, call the Emerald Isle or an experienced attorney.
DEPORTATION
Attention Non-Citizens!
Individuals who enter the United States under the Visa Waiver Program (VWP), as visitors for 90 days, are subject to certain restrictions. Most notably, an individual who entered under the VWP has no right to a hearing before an immigration judge if they become deportable by overstaying their 90 day status or by committing certain crimes. If such an individual comes to the attention of the Department of Homeland Security, they will be detained and removed without further ado. No hearing, no waiver, no rights!
You Are At Risk of Deportation If You Have…
ANY CRIMINAL CONVICTIONS,
You may be deported even if the conviction happened years ago, you have a greencard, or you never went to jail. Consult a lawyer specializing in immigration deportation before you go to the immigration office, leave the country, or try to adjust your status.
NO PAPERS,
You may have no papers or be undocumented if you crossed the border to enter the country, overstayed your visa, came on a false passport, or are in the process of adjusting your status.
OLD ORDER OF DEPORTATION,
Sometimes immigration does not tell you that you have an old deportation order. You may have one if you lost your asylum case, skipped a marriage/adjustment interview or skipped an immigration hearing.
To find out if you have an old order of deportation follow these steps:
- Find your “Alien Registration Number.” It is on most immigration papers, including the I-94 card on your passport, greencard, or any other document that immigration gives you. The A# looks like: A99 999 999
- Call 1-800-898-7180. This is the hotline for the immigration court (EOIR).
- Press “1” for English or “2” for Spanish.
- Enter the 8 digits of your A-number and listen for instructions. If your number is in the system, then this means that an immigration case existed against you at some time.
- Press “3” to find out if an immigration judge decided your case, including if there is an order of deportation (“removal”) against you.
- If the hotline says you have a deportation/removal order, consult a lawyer specializing in immigration deportation before you go to the immigration office, leave the country, or try to adjust your status.
You May Be Detained If…
YOU LEAVE THE COUNTRY AND TRY TO RE-ENTER,
When you re-enter the US at an airport, seaport, or at the border, immigration agents may do a background check. If you have an old conviction, false papers or a deportation order, you may be detained, charged for trying to enter illegally, and deported.
POLICE STOP YOU,
Police officers do immigration checks often, even if you are not being charged with a crime. They may arrest you and send you to Immigration if you have a prior conviction or old deportation order.
If police stop or arrest you:
- Ask for a warrant if officers seek to enter your home. You have the right
to see this document if any officer seeks to enter your home. The warrant
lists the areas that the officers can search. Note if they enter any other
areas. - Record who arrested you. Write down the officer(s) name, agency (FBI,
NYPD, INS), and badge number. Find this information on the officers’ business
cards, uniforms, and cars. - Remain silent. You do not have to answer any questions.
- DO NOT LIE! Say nothing or say, “I need to speak with a lawyer first.”
- Do NOT sign any papers without talking with a lawyer first. Officers will try to scare or trick you. Don’t be fooled.
- Do not give any immigration information. You do not have to tell officers your status in
the US or your country of origin. By giving this information, you may help
the government deport you faster. - Do NOT take a guilty plea without speaking
to a lawyer specializing in deportation. Defense lawyers, prosecutors and
judges are not required to tell you the immigration consequences of a conviction. - Make sure your family has your Alien Registration Number. It is on most immigration
papers and looks like: A99 999 999.
…YOU FINISH SERVING A CRIMINAL SENTENCE
You may be sent to immigration after you complete jail time, probation, a rehabilitation program, boot camp (including NY Shock program). Officers running the jails or programs are not trained in immigration laws, and often give people incorrect information. Do NOT rely on their word. If you have been visited by any immigration officer, or are not a citizen, you may have an immigration detainer.
…YOU GO TO ANY IMMIGRATION OFFICE
If you are at risk of deportation and go to Federal Plaza (or any other immigration office), you risk being detained.
People have been deported when they go to pick-up a work permit or greencard, inquire about their citizenship application, or respond to an appointment letter. If you have an order of deportation or past conviction and decide that you must go to an immigration office, call a deportation specialist before you go and follow these tips:
- Tell a family member or close friend where you are going, and set a time to call them after the visit. If you do not call because you are detained, they should start looking for you (follow steps below).
- Do NOT take your passport, work permit, travel documents, or greencard. If you must take them, leave items not necessary at home. Give a copy of everything you take to a relative or friend.
- If you are going in response to an appointment letter, leave a copy of the letter with a relative or friend.
TIPS! If Immigration Detains You or Your Loved One…
DETAINEES
Do NOT sign any statements or documents, especially ones giving up your right to an immigration hearing in front of an immigration judge.
If you have an old order of deportation, you will not see a judge and can be deported immediately. Ask for a Notice of Reinstatement of Deportation Order.
Make sure your family members have a copy of your immigration paperwork, including your Notice to Appear (NTA).
If you are able to see an immigration judge and you do not have an attorney, tell the judge that you need more time to find someone to represent you. Do NOT concede or admit to the Immigration Services charges against you. Do NOT go into detail about your case. Anything you say can and will be used against you – even your nationality.
If you think you may be transferred to a detention center far from your home, and you already have a lawyer, have them file an immigration form with DHS saying that they are representing you. This form is called a G-28. You can download it from DHS at http://www.immigration.gov/graphics/formsfee/forms/g-28.htm. Fax the form to the Deportation Officer immediately. This form may convince the officer to stop your transfer.
FAMILY MEMBERS ON THE OUTSIDE
Keep the following information about your detained loved one:
- Full name and aliases “Alien Registration Number.” It is on most immigration papers, including the I-94 card on your passport, greencard, or any other document that immigration gives you. The A# looks like: A99 999 999.
- Date person entered the U.S. and how (visa, cross border, greencard through marriage, etc.)
- Criminal Record. You must have a list of the precise criminal convictions (e.g. 4th degree Criminal possession of a controlled substance, NYPL §220.09). Include the date of arrest, the place of arrest (City, State), date of conviction, and the sentence. If possible, get a copy of the rap sheet. Get a Certificate of Disposition for each conviction from the court clerk’s office in the courthouse where the criminal case was heard.
- A copy of your Notice to Appear (NTA) and all other immigration paperwork.
- Favorable Factors: collect documents showing that the person facing deportation has family, community ties and a “good character” (see Favorable Factors).
If you do not know where your detained loved one is:
Contact the Bureau of Immigration and Customs Enforcement Deport Office (see Phone List below). Ask to speak with a supervisory deport officer. Give them your loved one’s full name and A#. (Note: Deportation officers may be mean and not speak to anyone besides an attorney or the person being deported. You should still try.)
If you need a lawyer…
Hire someone specializing in deportation. Do not get cheated! If the person does real estate, business and immigration, they are most likely not deportation specialists.
Keep with you the full name and contact information of EVERY lawyer that has ever represented you. Get a written contract before you give the lawyer money. The lawyer must give you a “retainer agreement.” Read it thoroughly. Make sure you understand it. Does it make the same promises that the lawyer is telling you? Make sure your family receives a copy of everything your lawyer files. File a complaint with the Attorney Grievance Committee if your lawyer cheated you (see Phone List).