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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

BlueDogRanch
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BobE
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3 Answers3

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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.

user6726
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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.

user102008
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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.

hszmv
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