Can Immigrants Plead the 5th?

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Can an immigrant plead the Fifth Amendment at a USCIS interview?

Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States out of our office here in St. Louis, Missouri. We have these webinars on Tuesday afternoons and sometimes we talk about visa delays and lawsuits over delays and other times we just have sort of an open forum. We call it Ask Me Anything.

There’s one fellow who comes to our Ask Me Anythings all the time. His name’s Cishawn and he’s out in Arizona going to law school. He asked a really good question during the webinar the other day and that is, can an immigrant plead the Fifth Amendment at USCIS?

I have seen situations where I have instructed a client not to answer a question. We didn’t actually invoke the Fifth Amendment, but I’ve had situations where I’ve terminated an interview.

I’ve had situations where I’ve gone out in the hall to talk to my client about answering a particular question. I’ve had situations where a client has refused to answer a question because he thinks it’s going to get him into more trouble. So the Fifth Amendment says that no one can be compelled to provide testimony against themselves.

That’s always with an eye towards criminal proceedings. So a lot of times you’ll see people say that they’re going to plead the Fifth. They’re not going to take the witness stand and they’re not going to testify in their own case.

Cishawn was wondering, and I’ve had other immigrants ask me, “Well, can you take the Fifth Amendment and not answer a question at USCIS?

Of course, when you’re applying for adjustment of status or you’re applying for naturalization, there’s lots of detailed personal questions, a lot of them related to criminal history.

There’s questions like, have you ever committed a crime or offense for what you’ve not been arrested? Have you ever been arrested, cited, charged, detained for any kind of crime? And then there’s all these specific crimes that they ask.

Have you ever helped anyone sneak into the United States illegally? Have you ever been a drug trafficker, a human trafficker? Have you ever been a prostitute?

So the question is, well, could an immigrant not answer those questions? The answer to that question obviously is yes. Of course, you can choose not to answer the questions.

But of course, as my wife says to our kids when they misbehave, “Logical consequences.” That’s a phrase we got from my mother. My mother says that when my kids are acting up that we should say, “Well, you’re going to be punished and these are the logical consequences of the decision that you made.”

So the logical consequences of not answering a question at USCIS are that you don’t get the immigration benefit that you want. Because of course, whenever you’re applying for any immigration benefit, the burden is always on you to establish eligibility and/or admissibility.

So it’s your job as the immigrant who wants a benefit. You’re asking USCIS to give you something, but you can’t say, “Oh no, I’m not going to answer that.”

That’s not going to work out very well. So if you’re in a situation where you’re thinking about whether or not to plead the Fifth Amendment, you’re probably already in trouble.

What do I mean by that? Well, if you have a situation where you have been involved in some kind of criminal activity and don’t feel like answering that question, you might want to withdraw that case right there or you might want to never have filed it.

People with criminal histories should always talk to an immigration lawyer before they file for the next immigration benefit. It’s so tricky. It’s such a problem that you might be better off not ever filing than filing and then trying to refuse to answer a question. That would be a really bad idea.

So in those situations where I’ve stopped an interview, the client’s case was denied. But of course, that’s better than letting them lie to a federal government official. We want you to make the best decisions. We want you to make educated decisions, which is why we made this video.

So if you had something in your past that you think you might have to plead the Fifth Amendment to while going through the immigration process, you should give us a call at 314-961-8200.

You don’t want to do that on your own. You don’t want to screw up your case, and you certainly don’t want to lie to a government official or lie on a government form. So give us a call if you have a question.

You can always email us info@hackinglawpractice.com. Be sure to join us in our Facebook group. It’s called Immigrant Home. We’ve been updating our members there and posting a lot of our content there first. If you like this video, be sure to subscribe to our YouTube channel and share it out on social. Thanks a lot. Have a great day.

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