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Matter of E-R-M-: No Basic Criminal Procedure Protections for ICE Detainees

By immigrationprof

Guest blogger: Denise Watt, law student, University of San Francisco

While taking an immigration law course this semester, I was consistently surprised to learn that many of the constitutional protections that we accept as given in this country do not extend equally to our immigrant brothers and sisters.

For the past several months, daily news reports have brought our collective attention to the horrific conditions[1] experienced by those in the immigration prison system.  Given the criminal system-like treatment endured by so many, one would imagine that the protections afforded the accused in this country would at least apply to those facing immigration detention as well.

Not so.

The Miranda warning provides one such example of where procedural protections for immigrants fall terribly short of our American constitutional ideals.  As a law student, I was shocked to learn that even this most basic criminal procedure protection does not extend to those detained by ICE.

Immigration regulations do provide some guidance on when and what kind of warnings immigrants receive.  In 8 C.F.R. § 287.3(c), those arrested without a warrant—that phrase alone should give us pause in a civil proceeding—be advised ”that any statement made may be used against him or her in a subsequent proceeding.”[2]  However, the statute provides that this warning will occur only after immigration proceedings have begun.[3]

As you can imagine, by then, it may be too late.[4]

 

The 2011 Board of Immigration Appeals (BIA) decision in Matter of E-R-M-F- & A-S-M- provides one example.[5]  In that case, the respondent made an incriminating statement while being interrogated.[6]  However, since the respondent’s immigration proceedings had not yet formally begun, the BIA deemed his statement to be admissible.[7]  In other words, he made the statement before he was due to receive the warning provided by 8 C.F.R. § 287.3(c).

Matter of E-R-M-: No Basic Criminal Procedure Protections for Detained Noncitizens

Of course, Miranda warnings do not always provide a failsafe.[8]  And, the warnings do not always apply.[9]  However, one might argue that despite the warning’s imperfect legal protection and application, the idea of Miranda serves an important purpose—allowing people to assert their constitutional rights and providing a check on state power.

The Matter of E-R-M-F- & A-S-M- decision does not detail the conditions of the interrogation.  However, one could imagine that immigration interrogations include circumstances that would otherwise trigger Miranda warnings in the criminal context.

Providing meaningful Miranda warning protection in the immigration system could provide one small way of moving toward living up to our purported values—values that emphasize due process and equal treatment under the law.

Those who would oppose this small step forward might argue that Miranda-type warnings would hinder immigration enforcement.  However, Miranda has been part of our criminal justice system for decades.[10]  One could not seriously argue that because of Miranda protections, criminal law enforcement has been irreparably hampered.

I recognize that a Miranda-type warning implementation forms only a small piece of the immense scope of immigration reform needed.  Other issues—such as inappropriate detentions and other human rights violations—deserve our immediate attention.  However, ensuring that immigrants facing deportation should have at least as many constitutional protections as those accused of crimes should be a reform upon which all—regardless of politics—can agree.

 ________

[1] For an account of detention conditions and a brief history of immigration detention, see Allyson Hobbs & Ana Raquel Minian, A Firsthand Look at the Horrors of Immigration Detention, Wash. Post (June 25, 2018), https://www.washingtonpost.com/news/made-by-history/wp/2018/06/25/a-firsthand-look-at-the-horrors-of-immigration-detention/?utm_term=.92534fe8b802.

[2] 8 C.F.R. § 287.3(c) (2018).

[3] See Kristin Macleod-Ball, Immigrants Deserve Basic Miranda-Like Warnings When Arrested, American Immigration Council Immigration Impact (Feb. 28, 2013), http://immigrationimpact.com/2013/02/28/immigrants-deserve-basic-miranda-like-warnings-when-arrested/

[4] Aparicio-Brito v. Lynch, 824 F.3d 674, 683 (7th Cir. 2016).

[5] Matter of E-R-F-M-, 25 I. & N. Dec. 580 (B.I.A. 2011).

[6] Id. at 582.

[7] Id.

[8] Interview: Richard Leo, PBS Frontline: The Confessions, (Apr. 21, 2010), https://www.pbs.org/wgbh/pages/frontline/the-confessions/interviews/richard-leo.html

[9] For a helpful flowchart illustrating when Miranda rights apply, see Bryan Taylor, You Have the Right to Be Confused! Understanding Miranda After 50 Years, 36 Pace L. Rev. 158, 174 (2015), available at https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1914&context=plr.

[10] Taylor, supra note 5, at 158.

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