Being stopped by the police or an immigration officer is an unnerving experience if you are out of status. The actions you take at that moment can impact your right to remain in the United States. Therefore, you should be well aware of your rights and how to protect yourself.
The United States grants certain rights to anybody on U.S. soil, whether you are a U.S. citizen or an undocumented immigrant. Let’s explore these rights and how they apply to you.
Right Against Self-Incrimination
The U.S. Constitution grants you the right against self-incrimination. This means you can refuse to answer questions that could give the impression of guilt. Calmly saying, “I am exercising my right to remain silent,” is an appropriate response to questions posed by a police officer. Be polite and cooperative, but do not answer questions that alert officers to your undocumented immigration status.
Right Against Search and Seizure
During a traffic stop, police are not allowed to search your vehicle without probable cause or your consent. Examples of probable cause include scenarios in which the officer smells marijuana wafting from the car or sees a weapon in plain view. A police officer without probable cause must obtain a search warrant from a judge before conducting a search. This system of checks and balances protects your right against unreasonable searches. Likewise, an officer cannot search your home or your body without a warrant or your consent, except to secure the officers’ safety incident to an arrest.
Being cooperative doesn’t mean sacrificing your rights. Politely decline the officer’s request to search your vehicle or home.
Right Against Unlawful Detention
An officer is not permitted to detain you without probable cause. If an officer stops you for questioning, unless you are under arrest, you don’t have to stay. However, do not run or resist arrest because then you give the officer probable cause and put your safety at risk. Keep your hands in view and be mindful of making sudden moves that could be misinterpreted as threatening or evasive. Instead, ask the officer if you are free to go. The officer must allow you to leave if you aren’t under arrest. If the officer has placed you under arrest, you have the right to know why.
Right to an Attorney
Under the U.S. Constitution, anyone accused of a crime has the right to an attorney. However, you do not have the right to an attorney if you are detained solely for immigration purposes. You may still have an attorney present during immigration proceedings and you must be given access to the attorney you retained.
The outcome of criminal charges could affect your immigration status, so be sure to discuss your status with your criminal defense attorney.
Law enforcement departments and Immigration and Customs Enforcement (ICE) are government agencies that must follow certain rules. These agencies cannot detain or deport you without grounds or without following proper procedures. An attorney can help you preserve your rights under the criminal justice system and immigration laws.
*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice
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