Overview Of Your Rights Under Immigration Law
by Amara Amy Digital MarketerImmigration laws and criminal laws in the United
States are usually considered two separate and different bodies of law. To the
unprepared, this can be complicated. Criminal statutes apply to everyone in the
United States, regardless of their immigration status here, with perhaps the
elimination of diplomats under certain specific circumstances. Immigration
statutes on the other hand, only apply to foreign nationals, unless the
immigration statute requires certain criminal offenses (for example, when a
United States citizen engages in a conspiracy to assist someone to enter the
United States illegally; or as a second example, a United States citizen who
fraudulently petitions for a foreign national under the guise of a bonafide
marriage.)
The United States Constitution affords everyone in
custody a right against self-incrimination and the right to remain silent. It
protects against searches and seizures of one’s possessions without probable
cause. And, it gives that a person who is arrested and/or charged has a right
to an immigration attorney if they cannot otherwise afford one. However, if requested,
these Constitutional rights can limit one’s ability to seek or obtain
immigration advantages.
A. Right to Remain Silent and Burden of Proof
The Immigration and Nationality Act (INA), the main
source of immigration laws, does not afford any individual the right to remain
silent at a port of entry when they are seeking entrance into the United States
or, when they are seeking immigration benefits from USCIS. Attempting to invoke
the right to remain silent and/or against self-incrimination will almost always
lead to a denial of entry or denial of the benefit one is seeking. Immigration
laws assert that the person applying for an immigration benefit has the burden
of proof. This differs from criminal proceedings which places the burden of
proof upon the government. Although there is a limited right to remain silent
during an immigration hearing, that can lead to an “adverse inference” which
can result in a denial of the benefit/relief sought.
It is important to note that generally, no one is
obligated to answer questions regarding their religious or political beliefs at
a port-of-entry or during an airport screening. An exception to this may be
when one is applying for asylum on the basis of religion and/or political
opinion, it may be beneficial to answer such questions for the “credible fear
determination.”
Additionally, it is imperative that an individual
seeking to enter the United States or obtain an immigration benefit to provide
true and accurate information. Presenting an officer or agent with false names
or false documents is considered fraud and can be prosecuted under criminal
statutes as well as prevent one from obtaining immigration benefits under the
INA.
Most criminal proceedings do not allow anyone, and
especially not the government, to prove their cases through the use of
out-of-court third party statements, commonly called “hearsay.” But,
immigration law and procedure allows just that, the use of hearsay as a basis
for proving a fact when the matter is being litigated in immigration court.
But, immigration law and
procedure allows just that, the use of hearsay as a basis for proving a fact
when the matter is being litigated in immigration court.
B. Search and Seizure
The INA allows a federal officer performing
inspectional duties at a port-of-entry or the “functional equivalent” thereof
to search, without probable cause or even reasonable suspicion, a person’s
belongings, as long as the search is related to the determination regarding the
person’s right to enter the United States. There is some difference of opinion
amongst lawyers as to whether or not an individual needs to provide their
passwords or give access to their electronic devices such as laptops or cell
phones.
Again, the INA differs from the Constitution on this
point. The Constitution generally requires a search warrant, reasonable
suspicion, or consent before a search can take place of one’s person,
artifacts, or dwelling.
C. Right to an Attorney
As for the right to counsel, the INA allows a
foreign national the right to counsel, however, that right is at no cost to the
government, even when the person cannot afford a lawyer. This differs vastly
from the Constitution which affords counsel to those who cannot afford it.
Accordingly, a person facing immigration charges or
seeking immigration benefits must ensure that they become familiar with these
differences, and seek to protect themselves accordingly.
If you need an immigration lawyer NYC you can contact us at 212-364-5593 or visit our website to schedule a consultation.
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Created on Aug 13th 2020 04:41. Viewed 269 times.