Noncitizens won’t be informed of their rights before questioning, says Obama administration (UPDATED)

Created: August 15, 2011 18:02 | Last updated: July 31, 2020 00:00

Under a new decision by the Board of Immigration Appeals made on Thursday, immigrants arrested without a warrant will not be read their rights until they are placed in formal deportation proceedings. The Board argued that its decision (PDF) was based on changes to regulations stating that immigrants arrested without a warrant need not be informed of their rights before being questioned.

Melissa Crow, director of the Legal Action Center at the American Immigration Council, said in a press release, “The Board’s ruling renders the advisals practically meaningless and makes immigrants less likely to remain silent when questioned and less likely to assert their right to counsel.”

The new decision makes it harder for immigration attorneys to successfully file motions to suppress evidence acquired while violating an immigrant’s rights. Such motions are being used more often in deportation cases, which are themselves occurring at record levels.

Although people arrested for immigration violations don’t have “Miranda rights” per se, arresting immigration officers were required to inform immigrants of their right to an attorney and that anything they say can be used against them. Now, Crow told TAI, that protection is rendered less effective because officials can inform immigrants of their rights after they given incriminating testimony while under warrantless arrest.

Technically, the decision only affects arrests by federal immigration officials. However, Secure Communities, the new Immigration and Customs Enforcement program in which local law enforcement give the fingerprints of people they arrest to federal immigration officials, could reinforce the effects of the decision.

That’s because immigrants can potentially give incriminating testimony well before federal officials place them in deportation proceedings but after they have been flagged by Secure Communities.

The Justice Department has recently drawn praise from immigrant rights advocates for their lawsuits to block the Arizona and Alabama immigration laws. However, this new decision by the executive branch suggests that, as TAI has previously reported, the Obama administration’s position on immigration enforcement deviates considerably from what civil rights and immigrant rights groups would like.

Updated *10:51 AM, August 17, 2011: An earlier version of this article stated that the decision reversed a 1980 regulation, but that regulation had been changed in subsequent years. The board did not reverse a decision, but rather interpreted an amended regulation. The article has also been edited to clarify that prior to the decision, rights had to be read before questioning following an arrest without a warrant.*