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Criminal Law and Immigration – Importance of Asserting the Fifth Amendment by Undocumented People

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With the Trump administration likely will come a continued increase in immigration raids. Hopefully the subjects of those raids will know their Fifth Amendment right to refuse to state their immigration status.

This all reminds me of my immigration law professor’s emphasis on the importance of asserting “El Cinco” or any other effective language to assert the Fifth Amendment when admitting undocumented presence in the United States could spell detention and deportation proceedings.

The Fifth Amendment, in relevant part, proclaims that “no person …  shall be compelled in any criminal case to be a witness against himself.” Fortunately, nearly a century ago, the United States Supreme Court confirmed that the Fifth Amendment may be asserted in civil proceedings — rather than exclusively in criminal proceedings — by discharging from imprisonment for contempt, a bankruptcy litigant who asserted the Fifth Amendment. Arndtstein v. McCarthy, 254 U.S. 71 (1920). Arndstein underlines that the Fifth Amendment’s privilege against self incrimination “must have a broad construction.” Law professor Eugene Volokh in 2015 further detailed the implications of asserting the Fifth Amendment right to remain silent in the non-criminal case context, including that assertion to be used adversely against the Fifth Amendment-asserting party, and the unavailability of the Fifth Amendment-asserting party to cherry-pick which questions to answer or not, versus simply declining to testify.

When a person reveals in or out of court that s/he does not have documents to be lawfully present in the United States, s/he is arguably revealing incriminatory information. First, one’s undocumented presence in the United States under certain circumstances could be a criminal act, for instance when the person has entered the United States after being deported therefrom. More specifically, it is a generally a jailable federal crime to re-enter the United States after having  “been denied admission, excluded, deported, or removed” from the United States. 8 U.S. Code § 1326.

Second, deportation arguably is a criminal proceeding for purposes of the Fifth Amendment’s right against self incrimination, when considering that criminal proceedings can set in motion lengthy detention, not only until the actual deportation hearing, but possibly beyond the deportation hearing in the event of an appeal or in the event the immigration court orders deportation, declines to require the undocumented person to return to his or her country of citizenship in the event that the undocumented person asserts a fear of persecution if s/he returns to said country, and keeps the undocumented person detained indefinitely pending finding a suitable country that will accept the undocumented person for deportation. As law professor Keith Cunningham-Parmeter points out: “Removal proceedings, although considered civil in nature, involve quasi-criminal sanctions that directly implicate the immigrant’s liberty interests.” “Fear of Discovery: Immigrant Workers and the Fifth Amendment,” 41 Cornell Int’l. Law Jnl. 27 at 57 (2008).

Lawyers advising undocumented persons should remember those critical words “El Cinco. El Cinco.”