July 17, 2017 – By Yazen Abdin; Zubair Dawood Contibuted to this article.
Immigration laws and criminal laws in the United States are generally considered two separate and distinct bodies of law. To the unwary, this can be confusing. Criminal statutes apply to everyone in the United States, regardless of their immigration status here, with perhaps the exception of diplomats under certain specific situations. Immigration statutes on the other hand, only apply to foreign nationals, unless the immigration statute involves 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 bona fide 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 provides that a person who is arrested and/or charged has a right to an attorney if they cannot otherwise afford one. However, if invoked, these Constitutional rights can hinder one’s ability to seek or obtain immigration benefits.
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.
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.