Defense of Undocumented Aliens

Illegal aliens – are you afraid of being stopped by immigration officers? Are you afraid of being at the wrong place at the wrong time? Under current law you may have a defense if this happens to you.

We constantly hear that illegal aliens are apprehended in vehicles, on foot, in factories, in fields and even in homes. What happens to these apprehended aliens? These aliens are placed into deportation proceedings where they are required to prove why they should not be deported. If the alien cannot show why he or she should not be deported the alien is removed from the United States. Such aliens are also restricted from reentering the country for anywhere between one and ten years.

Why does this happen and what can an alien do to defend him or herself? Immigration officers often apprehend suspects believed to be an alien simply because of the color of the alien’s skin. This is called racial profiling. While immigration officers do have the right to question any person believed to be an alien as to his or her right to be in the United States, they do not have unfettered discretion on when they can stop a person.

The Ninth Circuit Court of Appeals has ruled that in most circumstances, it is unconstitutional for immigration officers to stop a person solely on the basis of that person’s ethnic appearance. Officers must have a “reasonable suspicion” that the apprehended suspect is an alien and that he or she is in the United States unlawfully. In other words, an officer cannot justify stopping a person just because of their Asian, Hispanic, or ethnic appearance.

Under prior law, evidence that was obtained from an illegal stop could be used to deport an alien from the United States. Today, if a stop is strictly based on the person’s race, evidence from the stop can be suppressed. Even though the alien is here unlawfully, information of the alien’s unlawfulness has been obtained illegally and should not be used to deport the alien.

What does an alien do to defend himself of herself in these situations? Nothing. Aliens are not required to reveal any information to immigration officers. In fact it is advisable for aliens to remain silent both during the stop, during any subsequent interrogation, and during the deportation proceeding. The burden of proving the legality of the stop is placed on the INS not on the alien.

Suppression of evidence in this fashion is a strong and effective tactic that can be used to defend aliens against deportation. However, aliens should be aware that the INS is represented by trial attorneys in deportation proceedings. Such procedural tactics are usually only successful in cases where the alien is also represented by a skilled and experienced immigration attorney.

If an INS officer has stopped you for no apparent reason, we urge to procure the assistance of an immigration attorney immediately. Do not be a victim of the over zealous actions of INS officers.