University Archives

There is a great constitutional tension between immigration enforcement and the Fifth Amendment privilege against self-incrimination. Although the right to remain silent is widely recognized, its scope remains unclear in modern policing contexts, particularly when applied to undocumented noncitizens during encounters with law enforcement. The Note focuses on whether an undocumented individual who is neither registered nor fingerprinted may invoke the Fifth Amendment to refuse to produce identification or immigration paperwork during a non-traffic, pre-arrest encounter when doing so would reveal incriminating information about their immigration status. The disclosure of such information may expose undocumented individuals to both civil and criminal liability because of the language in Executive Order 14159, the Alien Registration Requirement. For a noncitizen, their identity may be the link in the chain that ties them to the willful refusal to self-register. Thus, the Alien Registration Requirement places undocumented noncitizens in an unusual constitutional dilemma by compelling disclosures that can directly expose them to criminal liability.