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Comment by komali2 | Hacker News Reader

Doesn't the 5th amendment make those questions impossible to answer? (If you plead the 5th on them, you're.. probably a terrorist...)

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I think the government's position may be that travelers do have a right under the fifth amendment to decline to answer these questions if they believe that answering could create a risk of criminal prosecution, but that the government can still use that refusal to answer against the traveler (for example, denying a visa or denying entry to the country), because the government contends that immigration procedures are "administrative" and not "criminal", and being denied entry is merely an administrative decision and not imposition of a criminal punishment.

In general the government has only accepted the idea that refusal to answer questions can't be held against someone in the context of a criminal trial. For example you can certainly take the fifth in a deposition or examination in a civil case, ideally on an attorney's advice, but this decision can be held against you for civil purposes (for instance, the judge can instruct the civil jury that it can consider why the witness didn't want to answer the question). The government's position is most likely that the immigration proceedings have an analogous status where you may be allowed to decline to answer, but an adverse inference can still be drawn from your refusal (like making an assumption that you had something to hide).

Constitutional rights are very different in customs. 4th amendment is pretty gone too.

If you refuse to answer, they just don't let you in. Someone who doesn't already have some kind of legal status in the US has no right to enter, so they can turn you away for any reason at all.

Actually, they naturally do, but there is a specific law to prevent entering unless some specific criterions are met.

Outside of dictatures, people are born with all the rights, and the law is made to remove them. Those law are generally made to protect the rights of other. The main law that doesn't enter this category is immigration law since changing country doesn't remove any freedom to the citizens of the country of arrival.

5th amendment only applies in criminal cases: "nor shall be compelled in any criminal case to be a witness against himself". Doesn't cover border crossings or visa applications.

Also, the United States hasn't historically always given constitutional rights to non-citizens living in the United States.

Right, and the areas around the border have been called by the ACLU "Constitution-free zones". Basically the government says if you're within 100 miles of the border and have crossed or are likely to cross, your Constitutional rights no longer exist.

It's really fun stuff.

more about the 100 mile zone here: https://en.wikipedia.org/wiki/Border_search_exception

> Doesn't the 5th amendment make those questions impossible to answer?

The 5th amendment doesn't really apply because entry to the US on a visa isn't a criminal prosecution; no one is compelling you to answer the question, you can choose not to by choosing not to apply for a visa.

The constitution protect non citizens too?

Yes, kind of. Probably not in the context of immigration scissors stone paper games though.

>Yes, kind of.

In theory, but historically speaking not really: https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?r...

But then again, it doesn't seem to work very well for US citizens these days either.

For clarity: the doc you cite says what I said (at least that's my interpretation) -- that non citizens have much the same constitutional rights as citizens. But they have to be living in the country (so-called US Persons). Hence it doesn't do you much good in the context of getting into the country. Source: I was a US Person for a while.

The legal argument is "yes they do", but the first few pages of the document are "but we understand why US citizens might assume the opposite because here's a laundry list of all the times we ignored that in the past".

As a non-citizen, the internal arguments of the US legal system aren't very interesting to me, but the historical record of how the US treats non-citizens is. The US has clearly demonstrated that in practice, non-citizens are not protected by the same rights.

Yes. Some things (like voting) are rights of citizens, but the 1st and 5th Amendments (for example) guarantee rights to "persons" which includes non citizens who are in the US.

Sometimes, sometimes not.

If you are a non-citizen living here, you'll generally enjoy most of the protections of the constitution and laws. If you are sitting there at customs just visiting, there are a lot of those protections that simply don't apply. Of course, some of those protections don't apply to citizens at these places either, though they play out a bit differently.

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