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By Ben Winograd

As any Law & Order enthusiast knows, when a criminal suspect is placed under arrest, no interrogation can begin until police recite the famous “Miranda” warnings required by the Supreme Court: You have the right to remain silent. Anything you say can be used against you. You have a right to have an attorney present. If you cannot afford an attorney, one will be provided for you. But what happens when federal immigration officers take a noncitizen into custody?

According to a curious decision last week from the Board of Immigration Appeals, immigrants must still be informed of their (more limited) rights.  However, unlike criminal suspects, who receive warnings before questioning starts, immigrants arrested without a warrant need not be advised of their rights until after their interrogation has ended—and formal deportation proceedings have already been initiated.

If you’re scratching your head right now, you’re not alone. Reading immigrants their rights after their questioning has ended not only renders the warnings practically meaningless, but encourages immigration agents to exploit foreign nationals’ unfamiliarity with our legal system.

To be sure, noncitizens facing deportation have never been afforded the same rights as criminal suspects facing imprisonment. They have no right to a jury trial. Some are denied a bail hearing. They are often tried in states far from the site of arrest. And the government does not cover the cost of counsel for immigrants who cannot afford one.

Until last week, however, persons subject to warrantless arrests by federal immigration agents were still entitled to learn—prior to questioning—of their right to hire a lawyer at their own expense, and that any statement made could be used against them in a subsequent proceeding. Though less comprehensive than “Miranda” warnings, the notifications served the same basic purpose: to prevent government agents from extracting unwitting or involuntary statements.

Going forward, the consequences of last week’s decision will be drastic for both immigrants and the government alike. Immigrants in custody will be less likely to actually assert their right to silence or to ask to have an attorney present during questioning. Meanwhile, immigration attorneys will have more reason to argue that their clients’ statements were obtained involuntarily, and immigration judges will in turn 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 higher officeholders.

While the Obama Administration is in no way responsible for last week’s ruling, it has the power to fix it. Under federal regulations, the Attorney General can choose to review any decision the Board issues. While previous administrations have used this power to give immigrants even fewer rights than criminal suspects, last week’s decision provides a perfect opportunity for the Justice Department to make the playing field more equal, even if still not perfectly level.

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Comment Preferences

  •  You say: (2+ / 0-)
    Recommended by:
    Losty, marina
    While the Obama Administration is in no way responsible for last week’s ruling, it has the power to fix it. Under federal regulations, the Attorney General can choose to review any decision the Board issues. While previous administrations have used this power to give immigrants even fewer rights than criminal suspects, last week’s decision provides a perfect opportunity for the Justice Department to make the playing field more equal, even if still not perfectly level.
    .

    Well, what's the bets that the Obama Justice Department allows this decision to stand? Again, past is his prologue. Indeed, the American system of true justice was one of the first casualties under the present administration.

    You know, it used to be that if a person were geographically present within the United States, he or she was entitled to full Miranda Rights.

    With the continued erosion of Miranda, I guess a "papers please" society is not very far down the road for all of us.

  •  You're mixing up apples and oranges (2+ / 0-)
    Recommended by:
    VClib, GoGoGoEverton
    Immigrants in custody will be less likely to actually assert their right to silence

    The right to silence is a criminal right and doesn't apply in administrative proceedings.  It's a little surprising that a policy analyst at a think tank wouldn't know that.
  •  There's no right not to be just shipped back (0+ / 0-)

    to wherever you're a citizen of, if you're a noncitizen, so let's just do that for noncitizens who are committing crimes and problem solved.

    "However, I don't think that critiquing one precludes praising the other" - The Troubador

    by GoGoGoEverton on Wed Aug 17, 2011 at 06:58:27 AM PDT

    •  It isn't working out that way (0+ / 0-)

      People are being deported over minor traffic offenses rather than ICE and law enforcement focusing on immigrants with serious felonies,  the way it's supposed to work. See the Secure Communities program, or SComm.

      Better yet, click here for diaries by an actual knowledgeable authority on immigration policies.

      •  Why do you think that is? (not rhetorical) nt (1+ / 0-)
        Recommended by:
        marina

        "However, I don't think that critiquing one precludes praising the other" - The Troubador

        by GoGoGoEverton on Wed Aug 17, 2011 at 10:04:43 AM PDT

        [ Parent ]

        •  I don't know (0+ / 0-)

          Reportedly, more immigrants have been deported under Obama than under earlier presidents. Yet Obama claims to want a better system. Could it be that Bush leftovers in DHS and ICE are hijacking his orders? It could be that state and local police departments, having been militarized through DHS funded weapons and training, are overreacting? Or maybe it's because it's easier to catch a traffic offender than a drug cartel hit man.

          I know of two men locally who are being deported; they were originally detained as gang members, but there is no evidence of that at all. Both grew up here and now have jobs, wives and families, but they are being sent away from the only country they ever called home.

  •  Theoretically, POTUS could do something about (0+ / 0-)

    this since the adjudictor is working from rules, which can be changed under the rules amendment procedures of the Federal agency in question. This would be complicated because the issue presented apparently was presented at least twice to the Ninth Circuit which is not reported in the decision to have made a Fifth Amendment applicability ruling on this issue, and it is not clear that the respondents argued it  -  a court rule of long standing limits the appealability of issues the would be appellant did not argue and lose on in the original court, on a Use it or Lose it theory. Instead they argued on the Ninth Circuit opinions which were narrower.

    It would be a huge political mess, however as the Rs at this point in time do not consider non citizens to be people for purposes of the Constitution -  both the respondent and his spouse were reported in the decision to be legal permanent residents, the sort who are usually waiting out their time to apply for final citizenship, but not there yet.  Accordingly, this would raise the mirage of Obama helping criminals,  since any alteration of immigration rules in favor of respondents automatically helps 'criminals'   the ones affected by the rule. In an election year when Rs have not given up on arguing, proof be hanged, that POTUS is not a citizen, the horribleness of the result cannot be understated.

    And we also have to remember that Federal Fifth Amendment protections are narrower than the ones we often see in our local areas, where state constitutions often give broader rights.

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