When confronted by law enforcement, criminal suspects’ most powerful, and constitutionally protected tool has been silence. The right to remain silent has become ingrained into our shared understanding of criminal law, but its potential use in immigration enforcement remained largely untested, even as legal advocates regularly tell the public to remain silent when encountering immigration enforcement officials. This paper examines the potential force of silence in protecting people from immigration enforcement and concludes that it is unlikely to have a significant impact on immigration detention without a corresponding change in how people view their immigration status. As long as immigration status continues to be viewed by citizens and non-citizens alike as potentially relevant identifiers, the power of silence to protect against deportation will remain weak.

KJ