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BIA Limits Immigrants Rights Upon Being Detained

United States Supreme Court building in Washin...Image via Wikipedia

In a case recently reviewed, the Board of Immigration Appeals(BIA) made the decision that even though immigrants must still be informed of their-albeit significantly more limited rights- upon being arrested, they, however, need not to be advised of their rights until after their interrogation has ended and formal deportation proceedings have already been initiated. This decision deliberately goes against federal law as established by the Supreme Court decision in Miranda vs. Arizona which mandates that criminal suspects facing imprisonment receive their warnings before questioning commences. This decision to have law enforcement officials read immigrants their rights after their questioning has ended not only renders theMiranda warnings practically meaningless, but it also encourages immigration agents to exploit foreign nationals who are unfamiliar with our legal system. As a matter of fact, noncitizens facing deportation have never been afforded the same rights as criminal suspects facing imprisonment. They have no right to a jury trial, they can be 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. Yet until this BIA decision, 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 hearing. Even though the warnings given to them were different from the comprehensive “Miranda” warnings, reflecting their more limited rights, the notifications served the same basic purpose; namely, to prevent government agents from extracting unwitting or involuntary statements. The consequences of this decision will be drastic and far-reaching 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 in determining whether such statements can be admitted in court. It is fitting to note that the Board of Immigration Appeals is the nation’s highest administrative immigration tribunal, and as such sets the rules by which all immigration judges must abide. Even 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 the influence from higher branches of government, not even the Supreme Court . While the Obama Administration is in no way responsible for this ruling, it has the power to fix it. This ruling provides the perfect opportunity for the Justice Department to make the playing field more equal, even if still not perfectly level.

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