I periodically complain about the ongoing failure of the Board of Immigration Appeals to provide guidance to Immigration Judges. But the Board’s latest decision makes me think I should be more careful what I wish for.
In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA held that, until an arrested alien is formally placed into removal proceedings by service of a Notice to Appear, immigration officers are not required to inform the alien of his right to counsel (at the alien’s own expense) or that his statements might be used against him. Statements made by the alien after the arrest but before the alien is told of his right to counsel may be used against him in immigration court.
Not surprisingly, this decision has been roundly condemned by immigration advocates. The American Immigration Counsel had this to say:
For decades, immigrants placed under arrest have been entitled to these critical advisals. Like “Miranda” warnings for criminal suspects, such notifications help to ensure that statements made during questioning are not the product of coercion. As a result of last week’s ruling, noncitizens under arrest will now be even more vulnerable to pressure from interrogating officers, and immigration judges will face greater difficulty determining whether statements made during questioning were truly voluntary.
Since this decision is bad for all noncitizens, it is–ipso facto–bad for asylum seekers and people with asylum. In some ways, though, this decision might impact asylum seekers more severely than other immigrants.
For one thing, asylum cases often depend on an alien’s credibility. If an alien makes a statement to an immigration officer, that statement might later be used to impeach the alien’s testimony. I’ve seen this happen to some of my clients. They speak to an ICE officer (sometimes through another detained alien acting as an interpreter) and say something that is inaccurate and that might later be construed as an inconsistency. I’m not talking here about lies to gain asylum; I’m talking about non-material points, like whether the alien entered the U.S. in the day time or the night time, or what countries she traveled through to get to the United States. Such inconsistencies are almost certainly honest mistakes, but since non-material inconsistencies can support an adverse credibility finding, such statements can destroy the asylum claim for a legitimate asylum seeker. The E-R-M-F- decision will only exacerbate this problem.
Further, asylum seekers tend to be vulnerable people. Many have been through traumas, often at the hands of officials from their home governments, and they have a particular fear of law enforcement officers. Such people are susceptible to manipulation and will sometimes make false statements in order to please (or placate) an interrogating officer. For these reasons, asylum seekers–more than most–need to be protected when they interact with immigration officers. Again, the Board’s new decision is the exact opposite of what these people need.
My fear is that ICE officers will take advantage of the new ruling to question aliens before they serve the Notice to Appear, and that such statements will be unfairly used to damage asylum seekers’ credibility. My hope is that the Ninth Circuit (which will likely review this matter) will see fit to overturn the Board’s decision.