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 give 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 email, cell and other telephone
calls, and conversations in your home, office, car or meeting place are
being monitored without your knowleddge.
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 INS 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 contacts me?
What if agents come to question me?
YOU DO NOT HAVE TO TALK TO THE POLICE, FBI, INS, 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: on the
street, at your home or office, if you've been arrested, or even if
you're in jail. 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 NLG
(National Lawyers Guild), or a 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 NLG 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 NLG or a criminal
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 NLG or a
criminal lawyer.
What if they do not 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 NLG 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 NLG 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 NLG or a 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
NLG or one of the other organizations listed below as soon as
possible.
III. What if I am not a citizen and the INS contacts me?
Assert our rights. If you do not demand your rights or if you
sign papers waiving your rights, the INS 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 immigraion lawyer and who will take your calls. You must
carry your immigration papers such as "green card," I-94, 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. INS will not explain your options to you. As soon
as you encounter an INS 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. Call the
numbers listed below for help finding an attorney.
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 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. However, under new laws, the
INS 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 INS is keeping you in
detention on the basis of these new laws (see the contact numbers at the
end of this piece.)
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 INS. The law does not say when an immigration judge must
hear your case. The judge may order you 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 to 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 one of the organizations below.
V. 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 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 one of the
organizations below.
NLG National Post-911 Project (212) 627-2656
http://www.nlg.org
NLG National Immigration Project (617) 227-9727
http://www.nlg.org/nip/
This pamphlet was produced by the National Lawyers Guild,
which is solely responsible for its content. Nothing herein is intended
to interfere with any legitimate law enforcement investigation.
The National Lawyers Guild is a 5-year-old membership organization of
progressive lawyers, law students, legal workers and jail-house lawyers
fighting for social justice. Donations for printing this pamphlet and
for the legal hotline can be made out to NLG, earmarked "Know Your
Rights," and sent to 558 Capp Street, San Francisco, CA 94110.
National Lawyers Guild Bay Are Legal Hotline: For
legal help if you are arrested or contacted by police, FBI,
INS: (415) 285-1055
American Arab Anti-Discrimination Comittee General Information:
(415) 861-2288
Lawyers Committee for Civil Rights Legal help for victims of
hate crimes, discrimination, etc. (415) 543-9444
