BIA decision affects immigrants’ rights during interrogations

The Board of Immigration Appeals (BIA) recently issued a decision that has important consequences for non-citizens who are questioned by immigration officials.

In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA ruled that immigration officials who are questioning non-citizens are not required to advise them that they have the right to be represented by a lawyer, and are not required to advise non-citizens that any statements they make during the questioning may be used against them, until they begin formal court proceedings against them.  Formal court proceedings begin only when immigration officials file a charging document called a Notice to Appear, Form I-862, in Immigration Court.

Matter of E-R-M-F- & A-S-M- stands for the proposition that immigration officials do not have to advise non-citizens of their rights until the officials have filed the Notice to Appear in Immigration Court.

In this case, immigration officials questioned a non-citizen who was a Lawful Permanent Resident (green-card holder).  The person told the officials he had tried to help another person enter the United States illegally.  Later that day, officials presented the non-citizen with the Notice to Appear, Form I-862.  The officials filed the Notice to Appear in Immigration Court more than a month later.  According to the BIA, the formal proceedings against the alien did not begin until immigration officials filed the Notice to Appear in Immigration Court, more than a month after they questioned the non-citizen.

As a result of this case, it appears clear that in a large majority of situations where immigration officials question non-citizens, the officials will not be required to notify non-citizens that they have a right to a lawyer and that their statements may be used against them.

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