Further explanation of federal board decision denying immigrants advisal before questioning
On Tuesday, TAI reported that the Board of Immigration Appeals (BIA), a body that is part of the U.S. Justice Department, made a decision on August 11 arguing that federal regulations do not require that immigrants arrested without a warrant have to be notified of their rights before being questioned. That decision was made by a panel that consisted of two George W. Bush-era appointees and one Clinton-era appointee.
The BIA currently consists of 14 judges appointed by the U.S. attorney general (without U.S. Senate confirmation) that exists within the Executive Office for Immigration Review in the Justice Department. The August 11 decision was issued by a panel of three BIA members, which comprised of two members appointed by Bush-era attorneys general (one by John Ashcroft and one by Michael Mukasey), and one appointed by Clinton administration Attorney General Janet Reno. The decision was written by Roger Pauley, the Ashcroft appointee.
The decision comes at a time when immigrant rights groups have criticized the Obama administration for harsh immigration enforcement efforts, a practice inherited from the previous administration which escalated deportations over the course of the 2000s.
The issue at the heart of the BIA’s decision is timing. Federal immigration officials are constrained by the Fourth Amendment and the Due Process clause of the Fifth Amendment, as well as by the Immigration and Nationality Act and federal regulations. Regulations provide certain protections to immigrants which are not in the Constitution, among which is the requirement that federal officials notify immigrants of their rights to obtain an attorney (not at the government’s expense) and that anything they say will be used against them, before they are placed in formal deportation hearings.
The time period between when an immigrant is arrested by the authorities without a warrant — for example, during a workplace raid, or while federal officials are entering a house or workplace with a warrant for some reason other than arresting the immigrant — and when they are placed in deportation proceedings has been a gray area as far as the immigrant’s specific rights are concerned. Before the August 11 decision, the federal regulation dictating the timing of rights advisal had been interpreted in conflicting ways by different courts. Immigration lawyers argued that advisals should occur before questioning, and two federal appeals courts, the Second and the Eighth, have agreed. In 2009, however, the Ninth Circuit argued that the language of the regulation implies that notifications don’t have to precede questioning.
The Ninth Circuit has a jurisdiction that covers two of the states with the largest proportions of unauthorized immigrants in America, California and Arizona (according to the Pew Hispanic Center), so its opinion on this matter carried some impact. But with the Justice Department’s own appellate body weighing in on the side of the Ninth Circuit, decreased protections for immigrants arrested without warrants could become a reality throughout the entire nation.
One important caveat is that current U.S. Attorney General Eric Holder can still vacate the BIA’s decision, an action that is rare but was recently done in the case of a man who wished to stay in the country with his male partner but whose deportation was upheld by the BIA under the Defense of Marriage Act. Whether Holder wishes to intervene and override the BIA panel, none of whose members were appointed by Holder, in an effort to preserve legal protections for immigrants remains to be seen.