As anyone who has watched an episode of Law and Order knows, police officers must give certain warnings to anyone placed under arrest, including that they have the right to an attorney and that the statements they make can be used against them in court. In the 1966 decision Miranda v. Arizona, the Supreme Court explained that providing these warnings prior to police questioning ensures that criminal suspects are aware of their rights and therefore are better protected against the intimidation inherent in police interrogations.
The Miranda decision, however, does not apply outside of criminal cases. Because immigration proceedings are considered “civil,” not criminal, proceedings, Miranda does not apply, despite the fact that noncitizens arrested by ICE or CBP may not know their rights and may confront an intimidating atmosphere during interrogation. The government, nonetheless, has provided by regulation that officers must inform noncitizens of some Miranda-like warnings: immigration officials must tell noncitizens the reason for their arrest, that anything they say can be used against them in subsequent proceedings, and that they have the right to an attorney at no cost to the government.
These warnings are less expansive than those outlined in Miranda. However, even basic advisals of procedural rights can ensure a fair arrest process – or they could, if the warnings were provided before questioning started. Yet according to a 2011 decision by the Board of Immigration Appeals, the warnings need not be provided to a noncitizen facing deportation until after she has been interrogated. At that point, the officers already may have obtained all of the information they plan to use in an immigration hearing, and discouraging coercive questioning becomes a moot point.
The fact that a noncitizen is informed of her rights after the interrogation is only one of the many ways in which the U.S. immigration system lacks basic procedural safeguards for those facing deportation. Unlike in criminal cases, the government does not provide an attorney to people who cannot afford to pay for one, leaving many immigrants, regardless of their age, education or experience with the legal system, to argue their cases without any assistance. Current laws also allow certain noncitizens to be held in detention during their removal proceedings without even an opportunity to request release on bond and others to be removed from the country without ever appearing before an immigration judge. The failure to provide a fair process to those facing deportation from the United States is all the more disturbing given the harsh immigration penalties for those who commit even minor crimes and the increasingly active role local police play in immigration enforcement.
As we rethink our nation’s immigration system, we may have the opportunity to reconsider whether immigrants facing deportation, including those who have called the United States home for many years, should be denied the basic safeguards we value in our criminal justice system. But at the very least, we should ensure that immigrants facing removal are informed of the few protections our law already provides at a time when those safeguards can actually protect their rights.