Arizona rules of criminal procedure contain a state advisal requirement that the court, before accepting a plea of guilty or no contest, advise every defendant concerning potential adverse immigration consequences of the plea. These rules also state the defendant is not to be required to disclose his or her immigration status. After plea, however, defendants are seen by a presentence report writer, who asks them their birthplace, mothers name and birthplace, the fathers name and birthplace. This information is included in a presentence probation report which is presented to the judge, and is also used as a basis for notifying ICE of the situation so an immigration hold can be placed in an appropriate case. The defendant can decline to answer these questions, if necessary raising a Fifth Amendment privilege against self-incrimination objection in addition to the rule of court prohibiting the court from inquiring into the defendant's immigration status. In addition, illegal presence in the United States is now a statutory aggravating factor for Arizona crimes, which a judge can use to increase sentence. To aggravate the sentence on this basis, the sentencing judge need only find the illegal presence aggravating factor by a preponderance, not beyond reasonable doubt. ICE will no doubt look closely at the status of a person who refused to answer these questions. It may detain them while they look into the situation. Thanks to Beth Houck for this analysis. Defense counsel or immigration counsel can argue that it is unreasonable to assume undocumented status based on alienage because a person can be in legal status as a nonimmigrant, can be a permanent resident, can have protection under 8 U.S.C. 1231(b)(3)(withholding) or "withholding" or "deferral of removal" under the Convention Against Torture (See 8 CFR 1208.18).  Second, a person in status or who otherwise has the right to remain in the United States (such as the person with "withholding" or "deferral of removal," or even a person granted "deferred action" by immigration authorities) might still have a Fifth Amendment right to remain silent because of a variety of criminal offenses in which alienage is an element. Even legal permanent residents sometimes commit the offense of illegal entry and are subject to prosecution for it. (If a person makes a weekend visit to Nogales, suffers a lost or stolen wallet, and has a need to get back to work Monday in the United States, a lawful permanent resident may reenter illegally for one's job).  Alienage is also an element of illegal reentry as well as other federal offenses. See, e.g., 8 U.S.C. 911 (false claim to citizenship); 8 US.C. 1282(c) (alien crewman overstay); 8 U.S.C. 1304 (18 or over, not carrying immigration documentation); 8 U.S.C. 1325 (illegal entry into U.S.); 8 U.S.C. 1326 (illegal reentry after deportation or removal). A non-citizens potential exposure to criminal prosecution thus gives rise to a Fifth Amendment right against self-incrimination. See Kastigar v. United States, 406 U.S. 441, 444 (1972); U.S. v. Alderete-Deras, 743 F.2d 645 (9th Cir. 1984); Ramon-Sepulveda v. INS, 743 F.2d 1307 (9th Cir. 1984). If the person has no prior encounters with immigration officials, does not reveal his/her birthplace, and is not in possession of foreign identification, ICE will be unable to complete the paperwork and will not be able to do anything with the person. On the other hand, if the prints match, ICE will do what it would do if the person confessed to foreign birth. Thanks to Lynn Marcus.