By Allen E. Kaye

On October 29th President Bush signed into law the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT)" Act of 2001. The Patriot Act was written to both provide the Department of Justice with increased surveillance tools to intercept, investigate and prosecute terrorists, and to provide relief and expanded immigration benefits to the survivors and family members who were dependents of victims of the terrorist activities of September 11, 2001.

The Attorney General has indicated his intentions to fully utilize the provisions of the PATRIOT Act, in conjunction with sections of the Immigration and Nationality Act, to investigate and prosecute immigration violations. In light of the Department of Justice's heightened surveillance and continuing investigations, it is necessary for both foreign nationals and U.S. citizens, to understand their rights and obligations while in the United States. This information was prepared in consultation with the National Lawyers' Guild and the Public Interest Law Clinic of Columbia Law School.

A. All individuals in the United States, whether citizens or foreign nationals, have the following constitutional rights:

• The Right to Remain Silent. The Fifth Amendment to the U.S. Constitution gives every person the right to remain silent in the face of questions posed by any police officer or agent of the government, including any immigration officer.
  
  
• The Right to be Free from "Unreasonable Searches and Seizures". The Fourth Amendment protects individuals' privacy. Police or government agents are not permitted to search an individual's home or office without a warrant. Furthermore an individual has the right to refuse a warrant less search. Persons should keep in mind, however, that it is not difficult for the government to monitor e-mail, telephone calls, voice mails, and conversations in their home, office, car, or other meeting place.

Constitutional rights cannot be suspended under the guise of "national security" even during a state of emergency or in wartime.

Q. What Should I Do if Agents Come to Question Me?

A. First, remember that you do not have to talk to the police, FBI, INS or any other law enforcement agent or investigator, even if you are taken into custody.

• If you are stopped by the police or a government agent while driving a motor vehicle, you are required to show your license and registration.
  
  
• If you are contacted by the police or a government agent, and you want to consult an attorney before answering any questions, you must articulate this to the agent. Once you tell the agent that you want to consult an attorney questioning must stop. You do not already need to have an attorney to assert this right. Remember to obtain the name, agency and telephone number of an agent, who calls or visits you, and then call an attorney or request a public defender before deciding to answer any questions.

If the police, FBI, INS, or any government agent tries to enter your home without a warrant, you can assert that you do not consent to the search and that you will not answer questions until you consult with an attorney.

• Under the PATRIOT Act the FBI is granted broad discretion to gather information on foreign nationals, U.S. citizens, and certain activists. The FBI is not just looking for "terrorists". You must keep in mind that while the FBI is permitted to lie to you concerning their motives, lying to a federal agent is a crime. The safest course of action is to state that you wish to remain silent, that you do not consent to a search, and that you wish to speak with an attorney.

You are not required to allow the police or other law enforcement agents, including the INS, into your home or office unless they present a warrant for those premises.

• If you are presented with a warrant, demand to see the warrant and make certain that it is for your premises. If the warrant is for your premises, you cannot stop law enforcement agents from conducting the search, however, you should still assert that you do not consent to the search, as this will limit the search to what is specified in the warrant.
  
  
• If a law enforcement agent asks for any of your documents or for your computer, access to your computer, or for anything else, check to see that the item that they have requested is listed in the warrant. If it is not, do not consent to provide the additional materials until you consult with an attorney.
  
  
• If you are arrested, remember that an arrest warrant does not permit law enforcement to search your home or office unless you specifically consent to a premises search.

If you are stopped on the street by the police or any law enforcement agent, ask if you are free to go.

• If a law enforcement agent indicates that you are free to go, walk away. You do not have to give your name unless they suspect you of a crime, however, it may be expedient to do so. Remember, however, that if you give a false name it is considered a crime.
  
  
• If you are not free to go, then you are being detained. This does not necessarily mean that you will be arrested. If you are detained, law enforcement is entitled to "frisk" you. A frisk is a pat down on the outside of your clothing and nothing more. Do not consent to any further search. If, however, law enforcement continues the search, stay calm and do not physically resist police or agents as you will only be hurt and arrested. Continue to assert that you do not consent to the search and that you wish to speak with an attorney. You do not have to answer questions even if you are either detained or arrested.

Any statements that you make to the police, FBI, INS, or any other law enforcement agent can be used against you and against others.

• A common tactic used by law enforcement agents is to assert that it is "unpatriotic" not to answer questions or that individuals with nothing to hide would cooperate. Remember that even innocent people who have done nothing wrong may say things that the government will use against them or others. Repeat that you wish to speak with an attorney.

Q. What if the FBI Threatens Me with a Grand Jury Subpoena?

A. It is a common tactic for the FBI to threaten individuals with a grand jury subpoena to elicit information. Do not be intimidated into giving up your rights. This is frequently an empty threat and, if the FBI is going to subpoena you, they will do so anyway irrespective of whether or not you relinquish your right to remain silent.

A grand jury subpoena does not mean that you are suspected of a crime. You may have legal rights to quash the subpoena or to refuse to answer questions before a grand jury. Therefore, if you do receive a subpoena, consult with an attorney before your scheduled testimony.

Rights and Obligations of Individuals who Are Not United States Citizens

Under Section 264 of the Immigration and Nationality Act, all foreign nationals must, at all times, carry documentation to evidence both identity and immigration status. Until the events of September 11th, this section of the law has almost never been enforced. The Attorney General has stated that it will begin to enforce this provision. The penalties for failure to carry such documentation can be as little as a fine of $100 and as much as one year in prison.

Individuals are Urged to Carry the Following Documentation:

Permanent Residents should carry their alien registration card. If you have recently adjusted status, and do not have your alien registration card, then you should carry your passport. The passport will serve to prove identity and the INS stamp in your passport will document your status as a permanent resident.

Individuals in temporary visa status should carry either their passports or a government issued identification and their notice of approval and Form I-94 to document immigration status. Students should carry their Form I-20 and I-94 in addition to picture identification.

United States citizens should carry a government issued picture identification and a photocopy of the data page of their passports. Note, however, that while there is no penalty for a U.S. citizen who does not carry documentation, carrying such information may be helpful if you are stopped by a law enforcement officer.

All Foreign Nationals have the Following Rights

• The right to speak to an attorney before answering any questions or signing any documents.
  
  
• All foreign nationals who are arrested in the United States have the right to call or to have the police notify their Embassy or Consulate. The police must allow an Embassy or Consular representative to speak with the detained individual.
  
  
• The right to an attorney at any criminal hearing. A foreign national has the right to an immigration attorney at any INS hearing, although s/he does not have the right to a government appointed attorney for INS proceedings.
  
  
• If a foreign national is arrested or detained, the INS must decide within 48-hours whether or not to place the individual in immigration proceedings and whether to keep the individual in custody or to release on bond. Under the PATRIOT Act, the Attorney General can certify an individual as a potential terrorist and hold the individual for an additional seven (7) days before filing charges.
  
  
• The right to request release from detention. An individual can request release from detention even if the INS has not indicated why it wants to deport the individual. In most cases it will be necessary to request a bond hearing and to pay a bond in order to be released from detention. Even if bond is granted, however, under the PATRIOT Act, the INS may obtain an automatic stay while preparing an appeal to the Executive Office for Immigration Review. A stay will keep the individual in custody even if bond has been granted.
  
  
• The right to a hearing before an immigration judge to determine whether an individual has violated the immigration laws. Note, however, that individuals may not have this right if they have criminal convictions when they were arrested by the INS or if they have been ordered deported in the past.

Individuals who waive their rights or sign any documents indicating their consent to waive their rights may be deported without a hearing before an immigration judge.

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