When law enforcement officers arrest people for criminal offenses, they’re quick to turn over people they suspect of being non-citizens to the immigration authorities (especially people of color and those who speak English as a second language). Some jails even have an immigration agent permanently stationed there, to check the immigration status of every incoming prisoner.

Nonetheless, sometimes the police don’t notice that an arrestee might not be a U.S. citizen. Therefore, if you’re a non-U.S. citizen arrested by law enforcement agents other than immigration officers, your first important decision is whether or not to identify yourself.

       
        If you’re going to be given a promise to appear (see 
        Sample Promises to Appear) and released, then you 
        should give your name and address.

                                   or

        If you’re going to be kept in jail, you should withhold 
        your name and address, because you stand a good 
        chance of being turned over the immigration authorities.

The difficulty lies in determining whether you’re really going to be given a promise to appear. Police often just pretend that they’re going to release you on your promise to appear (see Use a Pie, Go to Jail). It’s hard to know for certain until the officers actually hand you the paperwork and let you go.

Whether or not you give your name, you must still invoke your rights to remain silent and to have an attorney present before answering any questions. This applies whether you’ve been arrested by a police officer, sheriff, FBI agent, or any other type of law enforcement officer.

If you’re a non-U.S. citizen taken into custody by the police, sheriffs, FBI, or any other law enforcement agents, you should say: I’m going to remain silent. I would like to see a lawyer.

Unless you’re sure that the officers have already decided you’re not a U.S. citizen, don’t ask to contact your consulate. Have your friends or family contact your consulate, instead. There is no point in drawing the officers’ attention to the issue of citizenship, if they aren’t already considering it.

Non-U.S. citizens who have been charged with a crime have the same rights as U.S. citizens in criminal court, including:

    •   the right to remain silent

    •   the right to an attorney paid for by the court if the 
        accused person is low-income

    •   the right to a trial (including a speedy trial)

Be aware that, in addition to or instead of the criminal case, non-U.S. citizens may have to face immigration proceedings. Some immigration proceedings are no more than a quick decision by a single immigration agent (see Voluntary Departure, Expedited Removal, etc., this page). The most formal proceeding is an immigration hearing, however these hearings are usually shorter than criminal trials and defendants have fewer rights in the process. In an immigration hearing, you are not entitled to a jury or a court-appointed lawyer (although you can hire a lawyer to represent you). The hearing takes place before an immigration judge, and the timing of the hearing depends on whether you are in or out of custody. Unfortunately, immigration judges are often cynical and biased against non-citizens. By law, less evidence is required for a judge to decide that someone has violated immigration laws, than for a judge or jury to decide that someone has broken criminal laws.

If you are considering a plea bargain in a criminal case, you must consult with an immigration attorney before deciding whether to accept the offer. Some deals that are fine for U.S. citizens are bad for foreign nationals. Sentences that seem very favorable in the context of the criminal case can still have disastrous results later on, if the immigration authorities take an interest. Consequences may include expulsion, denial of re-entry, or denial of naturalization.