¿Do Immigrants have any Rights?

Even though our Immigration Laws are, by nature, discretionary, where all immigration benefits are seen as privileges and not rights, this does not mean that foreigners have no civil rights or liberties as anybody else in the United States.

I. General Constitutional Rights

Many immigrants face situations every day where police agents tell them that they have no rights or constitutional protections due to the fact that they are foreigners and not U.S. Citizens. Do not be taken in by this argument, as it is completely false.

The rights and protections contained in the Constitutions of Puerto Rico and the United States apply to all persons, without regard to nationality or immigration status. Furthermore the governments of the United States and of Puerto Rico are bound by international treaties and customary laws regarding basic human, political and social rights.

In the end, both documented and undocumented foreigners enjoy all the basic rights accorded to all persons in a judicial process:

  1. The right to remain silent.

  2. The right to be represented by an attorney; where the state must provide access to an attorney in case the person cannot afford to pay for one.  

  3. The right to a trial by an impartial jury or judge.

  4. The right to present evidence, and to cross-examine and impeach the witnesses of the State. 

If you are detained by the Police, make sure that:

  1. They state you are, in fact, detained. If the Police make no comment whatsoever, ask if you are free to go. If the Police answer that you are detained or being placed under arrest, remember that you enjoy all of the Constitutional protections as any other Citizen of the United States.

  2. If you are being detained or arrested, they tell you the reason for the detention or arrest, and if they have an arrest warrant with your name on it. If they do not show you an arrest warrant, ask if they have one. If they do not have an arrest warrant, or if they refuse to show it to you, remember that the Police are under the obligation to take you before a Magistrate Judge without unreasonable delay, so as to confirm the legality or validity of the arrest. You have the right to be assisted by an attorney in this process, and the State has the obligation to provide an attorney for you if you cannot afford to pay for one.

If the Police inquire about your nationality, you have the right to refuse to respond. If the question emerges during a Police stop for a traffic violation, or during an arrest, you may respond that you wish to speak to your attorney. In any other circumstances, ignore the question. The Police have no legal authority to question you about your nationality, and you have the right to remain silent and not answer the question.

II. Rights in Immigration Procedures

Regrettably, not all Constitutional Rights apply to Immigration Procedures. However, our Immigration Laws and Regulations include certain rights and guarantees that guide the government in the adjudication of petitions or in deportation procedures.

If the Immigration and Customs Enforcement Service (ICE) detains you, it is very possible that the agents will argue that, since you are undocumented, you have no other legal alternative rather than voluntarily departing the United States, and will pressure you to sign a document for such effects. This is false. It is possible that you qualify for relief from deportation, and you have the right to a hearing of your case before an Immigration Judge. Do not sign any document that you do not understand, and do not give your approval to anything if (1) you are not sure that the agents are telling you the truth, and (2) if before making a decision, you wish to consult with an attorney.

If you are placed in deportation procedures, you have the right to:

  1. Legal Representation, at no expense to the Government.

  2. Offer evidence in favor of your case, question and impeach the credibility of the proof offered by the Government against you, and to cross-examine any of the Government´s witnesses.

  3. Remain silent or to enter a plea of "nolo contendere" to questions or charges that are self-incriminatory or may lead to criminal prosecution, even if you are in deportation procedures.

  4. Understand the procedures in your language, by means of a translator.

  5. Request a relief from deportation, if you qualify for one.

  6. Request revision of a deportation order before the Board of Immigration Appeals (BIA).