When speaking to an immigration officer, immigrants must beware that what they say can and will be used against them in immigration proceedings.

“Miranda” warnings are not given to foreign immigrants and visitors. Problems can come up at the border upon entry to the U.S., at an immigration interview, or when held in custody for any reason. Non-citizens facing deportation have never been afforded the same rights as criminal suspects facing incarceration. Immigration detention is not considered to be incarceration. It’s “detention”, so constitutional rights do not apply in the same way. Detention sometimes can last for years.

Immigrants who are detained:

• Have no right to a jury trial;
• Are in many cases denied a bail hearing;
• Have court hearings far from the site of arrest; and
• Must all pay their own costs of legal defense.

Until last week, however, persons subject to warrantless arrests by federal immigration agents were still entitled to know — prior to questioning — of their right to hire a lawyer at their own expense, and that any statement made could be used against them. Though less comprehensive than “Miranda” warnings, the notifications served the same basic purpose: to prevent government agents from pressuring immigrants from making unwitting or involuntary statements against interest. Immigrants do not need to be told in advance that they can be silent and ask for an attorney. Now, in Matter of E-R-M-F- & A-S-M-*, the court held:

“Until an alien who is arrested without a warrant is placed in formal proceedings by the filing of a Notice to Appear (Form I-862), the regulation at 8 C.F.R. § 287.3(c) (2011) does not require immigration officers to advise the alien that he or she has a right to counsel and that any statements made during interrogation can subsequently be used against the alien.”

The consequences of this last week’s decision will be drastic. Immigrants in custody will be less likely to actually assert their right to silence or to ask to have an attorney present during questioning. Immigration attorneys will have more reason to argue that client statements were obtained involuntarily.

Immigration judges will face greater difficulty determining whether such statements can be admitted in court. As the nation’s highest administrative immigration tribunal, the Board of Immigration Appeals sets the rules by which all immigration judges must abide. Though its members are appointed directly by the Attorney General — and are considered employees of the Justice Department — the Board independently reaches its decisions without influence from a higher authority.

Allan Lolly