American Civil Liberties Union
Know Your Rights: What To Do If You're Stopped By Police, Immigration Agents, or the FBI
Have you ever been arrested or fingerprinted*?
Although most of us will never be arrested in our entire lives, it does happen to some international students and scholars each year. Common misdemeanor or felony arrests can include theft, drunk driving, shoplifting (stealing goods from a store without paying for them) and drug possession (with or without intent to sell).
It is important to distinguish between the arrest, the judgment, and the resolution of the case. A person might be arrested and charged, but the case may be dismissed, the charges may be reduced, a fine may need to be paid, or community service may need to be done instead of jail time.
Regardless of the outcome of the case, the arrest record will eventually find its way in the U.S. government's federal databases, and will then appear when someone applies for a U.S. visa or attempts to enter the United States. Sometimes fingerprints may also end up in a database, even without an arrest.
U.S. visa posts routinely perform what are known as criminal background checks on visa applicants. They use a computer program called the Consular Lookout and Support System (CLASS) to check names and visa eligibility of all visa and passport applicants. U.S. Citizenship and Immigration Services (USCIS) uses a similar database when deciding immigration applications.
Before the attacks of September 11, 2001, CLASS had 6.1 million records from various U.S. government agencies. Since September 11, the State Department has added millions more new records to its CLASS computer system, primarily FBI criminal history data that the FBI receives from local municipalities.
The U.S. visa application asks the following question:
Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty, or other similar legal action?
Some USCIS applications ask similar questions.
You must answer "Yes" if you were arrested even if you were not convicted. In such cases, it is essential that you have with you documents issued by the court that address the original charges, and the subsequent disposition of the case.
If you are entering the United States, you may be stopped by the Customs and Border Protection Officer at the inspection booth if the officer sees an arrest or fingerprint record reported in the database. That officer may take you to a separate interview area. As with the visa application, it is essential that you have with you documents issued by the court that address the original charges, and the subsequent disposition of the case. A letter from the lawyer who assisted you, that explains the charges and the judgment is also helpful.
Any arrest, regardless of the outcome, may be something that you will carry with you for the rest of your life. Always obey the laws.
Anyone with concerns regarding the effect that a previous arrest may have on future US visa applications or U.S. entries should consult a qualified immigration attorney. International Student and Scholar Services can provide a referral.
*In the context of this article "fingerprinting" does not refer to the routine fingerprint scans done by U.S. visa posts as part of a visa application, or fingerprint scans performed at US ports of entry.
Prepared by Ellen H. Badger, Director
Binghamton University (SUNY)
International Student and Scholar Services