Readers should be aware of a very disturbing decision issued by the Board of Immigration Appeals (BIA) last week. The case is Matter of E-R-M-F & A-S-M, 25 I&N Dec. 580 (BIA 2011). The case essentially stands for the proposition that the ICE officers do not have to advise aliens of their right to counsel unless and until a Notice to Appear is issued. The danger, as what happened in the cases decided, is that statements made by aliens during interrogations prior to issuance of NTAs are admissible and may be used in court. Only after subjects have been placed into formal proceedings do they have to be advised of their right to a lawyer and that their statements may be used against them. Practically speaking, by then, it may very well be too late. The case has many ramifications, some of which are too complex for a blog entry, and which may be more appropriate for an article in the future. One notion that is particularly troublesome, though, is that aliens have fewer rights than individuals charged with criminal offenses. Whereas a criminal defendant has the right to be “Mirandized” (advised of the right to remain silent and the right to an attorney), aliens apparently have no such right when they are detained by government officials who are trying elicit incriminating statements from them. They only get told of their “rights” after they have been “formally” charged with an immigration violation.
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