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Refusal to answer census questions is covered under 13 USC Sec 221, providing for a fine of no more than 100.00; that acknowledged, can a person elect to refuse to answer a specific question because he believes it may tend to incriminate?

Background: The 2020 US census is proposing to ask 'Are you a US Citizen? In and of itself that might be considered to be a innocent question, but given the political climate a respondent could easily assume that the information is being gathered (or shared with) the Justice Department and/or Immigration Control for the purpose of identifying and locating non-documented residents.

Regardless of an assertion that census data is not supposed to be used in a legal proceeding against the respondent, that respondent has no reason to believe that his answer would never used in that fashion.... consequently his conviction that the information MAY used against him.

IANAL, so .... thoughts

  • Seems to me that if any significant link--direct or indirect--were established between Census people and ICE, and if the existence of that link was broadly publicized, then an undocumented residnt might well be able, despite 13 USC Sections 9 and 14, to rely on that "publicized" information in asserting that it is no longer ‘perfectly clear’ that the witness's answers ‘cannot possibly’ have a tendency to incriminate.” Of course, if I'm right, there is still the issue about claiming the privilege. Is mere refusal to answer enough or must the magic words be used? – Jim Wolpman Mar 28 '18 at 17:45
  • This could also apply to questions about someone's occupation, since answering such a question if one were (for example) an unlicensed distiller of alcohol could potentially incriminate oneself. – phoog Mar 28 '18 at 22:17
  • @phoog There is quite a bit of freedom in how occupation questions can be answered and almost always there would be a truthful and non-incriminating answer (e.g. "businessman"). – ohwilleke Mar 31 '18 at 13:20
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    @ohwilleke if I were engaged in an illegal occupation I would not trust myself to stick to "truthful and non-incriminating answers." Isn't the fear of slipping up or of not being clever enough to obfuscate truthfully sufficient to justify taking the fifth? – phoog Jul 5 '18 at 5:27
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An existing law actually prohibits using census data "against" a person, see this recent question. The 5th Amendment ("nor shall be compelled in any criminal case to be a witness against himself") is not interpreted to imply an absolute privilege to not answer, it means that your answer cannot be used against you in a criminal case. You can be compelled to testify "against yourself" if you are granted immunity from prosecution.

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    I actually read the recent question you referenced, and thought I was asking a slightly different question, to wit, can a person be compelled to answer the citizenship question (under pain of fine) by invoking 5th amendment privilege. However you raise a another interesting question: Since the privilege granted seems to be clearly limited to "any criminal case" and appears to be silent on non-criminal cases, invoking the 5th would apparently be (on it's face) an inappropriate defense to refusing to answer a specific census question. .....see next comment.. – BobE Mar 27 '18 at 19:03
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    Now, given that , (use of the 5th for criminal cases only), why do we see witnesses before a congressional inquiry committee (certainly not a criminal proceeding) successfully invoke 5th am. privilege? – BobE Mar 27 '18 at 19:04
  • @BobE What a good question - why not ask it? – Dale M Mar 27 '18 at 20:23
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    Those are indeed two different questions. In terms of protective function, the statute is stronger, but it is less sturdy – it can be changed by Congress. There is a bigger question regarding invoking the 5th: who decides if it is a protected refusal, and what proof is required of relevance. E.g. can I refuse to give my name if arrested (do police have to wait for a judge to order me to answer the question)? This implicates wingnut theories of income tax reporting – can I refuse to file a return on 5th grounds (no, but why not). Maybe we've had that question. – user6726 Mar 27 '18 at 20:48
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    @Dale,[ prior answer] ( law.stackexchange.com/questions/178/…) seems to answer the question. There the answer seems to be that 5th privilege is NOT limited to criminal proceedings. (I can't get the link function to work- sorry) – BobE Mar 28 '18 at 4:09
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I don't think you can invoke the right to not incriminate yourself on a question about whether you are a US citizen, as not being a citizen isn't a crime and doesn't imply any crime.

Even if it asked for your specific immigration status, or asked whether you are an illegal immigrant, I am not sure that you can invoke the right against self-incrimination on that either because being an illegal immigrant is not itself a crime, and does not necessarily imply any crime was committed -- e.g. an illegal immigrant who entered the US legally and overstayed has committed no crime under current federal law.

On the other hand, if it asked specifically whether you entered the US illegally, you might be able to invoke the right against self-incrimination on that because that is a misdemeanor.

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@User6726 has an excellent answer and I'd like to add that not all people legally living in the United States are legal U.S. Citizens, but all people living in the United States are U.S. Residents. If you are not a Citizen, you are still a Resident and the census question is trying to make this discretion. Residents may not vote in U.S. elections where citizens can.

A illegal resident is someone who has either overstayed their visa or has entered the country through improper methods and have not been legally allowed to live in the United States.

By asking if you are a U.S. Citizen, an answer in the affirmative will be a citizen, while an answer in the negative is a Resident. The question as written does not make any attempt to discern if your residency is legal or illegal from this point on. Should the data be used against you, all it will prove is that you cannot vote in U.S. Elections.

You can see a similar issue on your tax forms, as they ask you to list your income from illicit ventures (i.e. you robbed the bank for $1 million Dollars Dr. Evil Pose). This question requires you to list your illicit income and pay a tax on it, but requires no discussion of specifics of any crime you committed that netted this income, only offers you an escape from the fate of Al Capone, and thus is not requiring you to testify against yourself.

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    Not all visitors and tourists, no. The census is motivated by the constitutional requirement which means they only look at people who will be there for a long time. But not all such people are necessarily citizens or residents, in a legal sense, though they are "usually resident" in the USA. – Nij Mar 28 '18 at 3:11
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    You can check the finalised criteria for whether a person is counted in the USA census here. Section C, part 3 is where it deals with foreign citizens. – Nij Mar 28 '18 at 3:23
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    Actually the Census Bureau published very informative instructions. Really useful was this: "Approximately 134 million households participated in the 2010 census by mail. Enumerators conducted door-to-door interviews ONLY for households that could not be reached by the U.S. Postal Service or did not return their mailed questionnaire." Notice that it appears that a mailing address is key factor, if a person has no mailing address ( for example is living under a bridge) it is entirely likely that they will not be counted. – BobE Mar 28 '18 at 3:51
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    The USCB is well aware of the homelessness problem in the USA and takes steps to mitigate the problem. Homeless people, and others of no fixed abode, will still be checked out for a census. It's harder, not impossible, and the USCB is constitution-bound to make the effort. – Nij Mar 28 '18 at 5:45
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    @Nij in what way can someone not be a US resident while being "usually resident" in the US for the purpose of the census? There's no legal status of "US resident" outside of a particular purpose; residency is defined differently for different purposes (taxation being the most prominent). Notably, there is nothing in immigration law about residence status aside from permanent residence, but having or lacking that status does not determine whether someone must be counted in the census. – phoog Mar 28 '18 at 14:26

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