Right to Enter and Remain in the United States
The right to enter the United States is important. An individual may be denied entry to the United States if there are grounds for inadmissibility. Grounds for inadmissibility are considered not only when entering the United States (at a port of entry or at the airport), but also when the person is applying for a visa overseas, and often when the seeking a status after having been admitted to the country.
Another important right is the right to remain in the United States. Once you are admitted you may be subject to removal if there are grounds for deportability. Except in rare situations the government cannot remove you following your admission without first giving you a right to have a hearing. At the hearing you have the right to be represented by a lawyer (at your own expense).
Grounds for inadmissibility and deportability include economic, political/security, and health reasons. Other reasons include not having proper travel documents, unlawful presence/entry, violating your visa, etc.
There is some controversy about the rights of persons who are arriving have. Under what is called, “expedited removal” a person who arrives without documents or where the government believes that they obtained the documents or visa by fraud the person may be removed without a hearing. However, a person who has a fear of returning or removal because of persecution has the right to have their case reviewed by a special asylum officer. The asylum officer will determine whether the person has a “credible fear,” in which case the government can only remove them after the full consideration of their asylum claim by an immigration judge, where the person could be represented by an attorney. The person has the right to have an attorney at the credible fear interview with the asylum officer.
When citizens arrive at a port of entry or at an airport they go through inspection, but they are not subject to grounds for inadmissibility and deportability. Possession of a US passport is enough to establish that the person is a U.S. citizen. However even though a US citizen is not subject to the immigration laws, they are at a minimum required to go through the initial inspection and are subject to inspection for customs and search for contraband.
Returning Lawful Permanent Residents
Lawful permanent residents remain subject to grounds of inadmissibility and deportability. But as a general matter they are not subject to inadmissibility grounds if they are returning from a short trip overseas that did not exceed US for less than 180 days, have not abandoned their permanent resident status or are not being charged with one of the “criminal” grounds for inadmissibility. A lawful permanent resident cannot have their status taken away without the benefit of a hearing before an immigration judge. A consular officer should not take away a person’s proof of permanent resident status (green card).
Person’s With an Immigrant Visa
Those individuals coming with an immigrant visa must qualify for the visa under which they are seeking admission. In other words, if you are coming with an employment based visa you must prove that the job you are coming for exists. Similarly, if your visa requires that you are the unmarried child of a permanent resident parent, you must prove that you are in fact their child and that you are not married. In short, when you come to the US for the first time on your immigrant visa you will be required to prove that you are eligible for that specific visa even though you made that same showing of proof to the US Consul in your home country.
Person’s With a Non-immigrant Visa
Individuals seeking admission with a non-immigrant must prove they are here coming for the intended purpose of their visa, and that they intend to return to their country. The law presumes that all nonimmigrants wish to stay and that is one of the main reasons why the visa is very difficult to obtain. For example, if you come with a visitor’s visa, you must prove that your purpose in the United States is as a visitor (not for business purposes, for example) and that you intend to return to your country after your visit. If you come with a student visa, you must prove that your intent is to get an education at a specific school, then to return to your country. You must show that you do not have the intent to permanently remain in the United States.
Person’s from Visa Waiver Countries
Some people from selected countries do not separately apply for a visa before a US Consul abroad. If they are coming as visitors for business or pleasure they merely show their passport with the airline, carrier and at the border. When they are inspected on arrival they still must convince the officer that they are coming for a brief trip and will leave. These people can be denied admission at the port of entry without a hearing, will not be generally be able to change their status following their entry, and must leave within 90 days of their arrival. (double check). A person who is admitted under this program is not entitled to a hearing before being removed.
Your Right to Counsel
While all persons have a right to have a lawyer in immigration proceedings that right isn’t necessarily guaranteed under the US Constitution and the government will not provide free counsel if the person cannot afford one. So while there is no constitutional right to counsel in immigration the immigration laws provide for that right. However, if you are facing criminal charges under the immigration or criminal laws you do have the right to have a lawyer, and someone will be appointed to assist you if you cannot afford to pay for counsel. So under the Fifth Amendment of the United States Constitution there is a right to counsel for criminal cases, but not for immigration cases. There is some controversy over whether minors going through removal proceedings are entitled to have counsel., Just because there is no “right” to counsel does not mean you cannot and should not retain counsel. Immigration is a very complicated and specialized area of the law and it is always best to get the expertise of an immigration attorney at every stage of the immigration process. If you cannot afford an attorney, please take a look at our “finding and hiring a lawyer” page to find a list of non-profits and attorneys who may be able to help you.
Your Right to a Hearing
For those who are not at a border or inside the US, there is no right to a hearing. If you arrive at an airport or port of entry, and an agent finds you inadmissible you may be sent back to your country without a hearing under the expedited removal procedures described above. However as a general rule once you are admitted or are actually physically present in the United States, the US Constitution’s due process requirements will apply. There is some controversy regarding the extent to which expedited removal may be used. The government takes the position that expedited removal may be applied to certain person who are arriving as well as to those who arrived by sea and cannot establish that they have been in the US for 2 years or those found within 100 miles of a land border who have not been in the country for more than 14 days. The government is planning on expanding the use of expedited removal to all uninspected persons found within the US who cannot show that they have been in in the country for at least 2 years. This is proposal is very controversial and if enacted will be challenged in courts throughout the country. Your right to a hearing is an important right and you should not give up or “waive” that right unless you have first spoken with an expert immigration lawyer.
Your Right to Remain Silent
The US Constitution gives you the right to remain silent – meaning that you have the right to speak to a lawyer before speaking to a government officer. That right is particularly important if you are already in the US because the government has the legal burden to establish that you are not a citizen of the U.S. and that cannot just be assumed based on appearance. It can be easily established based on statements that you make, for example if you admit that you were born in a foreign country or identifying documents on you in which you admit your non-citizen status. These statements are treated as an “admission” of alienage and once that is established the burden switches to you to show the time, place and manner of your legal admission. So speaking to a government officer or possibly anyone about anything regarding the facts of your case in which you admit your foreign (alien) status could place you in a position of having to then prove your lawful status or be removed. We therefore strongly recommend that you not speak to a lawyer well in advance of any encounter so that you either have the proper documents or a plan for how you are going to deal with the encounter.
However there may be consequences if you chose to remain silent. The agent may treat you as uncooperative and if he already has enough information to detain you, they may consider you a greater risk and this could cause them to require a higher bond before releasing you. If you are someone at the border seeking admission and you refuse to answer questions you will in all likelihood be denied admission because the law places the burden on you to convince the officer that you are entitled to being allowed in. Related to the right to remain silent, is that if you speak you must answer questions truthfully because in most situations it is a criminal offense to provide false information to a government official. So while you may have the right to remain silent, providing false information could subject you to even bigger problems.