WHAT IF I AM NOT A CITIZEN AND HOMELAND SECURITY CONTACTS ME?
Assert your rights. If you do not demand your rights or if you sign papers waiving (giving away) your rights, the DHS 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 a lawyer who will take your calls. The immigration laws are hard to understand and there have been many changes since September 11. More changes are likely. Based on today's laws, regulations and DHS guidelines, non-citizens usually have the rights below, no matter what your immigration status. The following information may change:
The following rights apply to non-citizens who are inside the U.S. Foreign nationals at the border (air or land) who are trying to enter the U.S. have additional restrictions and do not have all the same rights.
Q: Do I have the right to talk to a lawyer before answering any DHS questions or signing any DHS papers?
A: Usually, yes. You have the right to call a lawyer or your family if you are detained, and you have the right to be visited by a lawyer 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. You must hire an attorney or find someone who will represent you for free. If you need help finding an attorney, contact one of the groups listed at the end of this document.
Q: Am I required to answer questions about my immigration status if I am stopped by the INS?
A: No. You can explain your immigration status to an DHS agent, if you want. But you are better off talking to a Lawyer first. If the DHS asks anything about your political beliefs, groups you belong to, things you have said, where you have traveled, or other questions that do not seem right, you do not have to answer them.
Q: Should I carry my green card or other immigration papers with me?
A: Yes. The law requires that you carry many types of official immigration papers with you at all times. This includes your green card, I-94, Employment Authorization Card, Border Crossing Card and/or other required DHS papers that prove that you have registered with the INS. If you do not have these papers with you, you could be charged with a misdemeanor crime. The government does not always enforce this law, but it could at any time.
Q: If the DHS arrests me, does it have to bring immigration charges?
A: Yes. Under DHS rules, they 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. Under a new rule, the DHS has an "additional reasonable period of time" past 48 hours if there is "an emergency or other extraordinary circumstance" to decide if they will keep you in custody or not. A new law lets the DHS detain a non-citizen for seven days before it brings immigration or criminal charges if the Attorney General has "certified" that the non-citizen may be a "terrorist" or a threat to national security. A "certified" detainee can challenge the detention in federal court.
Q: Do I have the right to a bond hearing to ask for my release?
A: In most cases you have the right to ask for release from detention once you pay a bond, and 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 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.
Q: Do I have the right to a hearing before an immigration judge to defend myself against deportation charges?
A: Yes. In most cases only an immigration judge can order you deported. But if you waive (give up) your rights or take "voluntary departure" (agree to leave) you could be deported without a hearing. If you have criminal convictions, were arrested at the border, or have been ordered deported in the past, you could be deported without a hearing.
Q: Can I call my consulate if I am arrested by the INS?
A: Yes. Foreign nationals arrested in the U.S. have the right to call their consulate or to have the police tell the consulate of your arrest. The police must let your consulate visit or speak with you. Your consulate might help you find a lawyer or offer other help. You also have the right to refuse help from your consulate.
Q: What happens if I give up my right to a hearing or leave the U.S. before the hearing is over?
A: You could lose your right to apply for immigration status, and you could be kept from returning to the U.S. in the future. Under the law, leaving the U.S. can cause serious legal problems for a non-citizen. You should always talk to an immigration lawyer before you decide. Even a legal permanent resident or applicant for a green card could be kept from returning. An undocumented immigrant who has been unlawfully in the country for more than six months could be kept from returning for many years even if he or she has never been in immigration proceedings.
Q: What should I do if I want to contact the INS?
A: Always talk to a lawyer before contacting the INS (even on the phone). Many DHS officers view "enforcement" as their primary job and will not explain options to you.
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