Rights of Detained Foreign Nationals
Posted Oct 12, 2001

Over the past few weeks, we understand that numerous foreign nationals have been questioned and/or detained by U.S. federal agencies. Many foreign nationals do not know they have some of the same rights as U.S. citizens when it comes to these types of situations. This article provides an overview of the rights of non-citizens who are questioned and/or detained, as well as what an attorney should do if her/his client is detained.

Should you be questioned by the police or another law enforcement agent, you do not have to answer any questions. However, as a practical matter, if you have nothing to hide, you it may be prudent to cooperate. You do not have to let them into your home unless they have a search or arrest warrant. If there is a search warrant, you should monitor the search, as well as write down the names and badge numbers of each officer / agent. If you are stopped on the street, ask if you are free to go. If the answer is no, and you are being detained, then you have the right to call an attorney or your family. You also have the right to call your country's consulate. In addition, you are entitled to request release from detention even if the INS will not say why it wants to deport you. It is important to note that although you have the right not to answer any questions, you should NOT react in a manner that raises further suspicion and makes you appear uncooperative.

Attorneys of detained clients should consider doing the following:

• Find out where your client is being held;
  

• Send a G-28, even if it is not signed by the client;
  

• Notify the INS that your client is willing to cooperate;
  

• File a request for a bond hearing, along with a motion for a speedy bond hearing and request for early scheduling. Note that under the current circumstances your client probably will not get a bond release unless the FBI clears him/her first. In preparing for the bond hearing, gather information including, but not limited to, your client's family and community ties, employment history, manner of entry into and length of time in the U.S., financial ability to post bond, and prior arrests. In addition, have your client's family come to court to show support.