On Advice of Rights in Removal Cases

By Dan Cadman on February 6, 2014

The Ninth Circuit U.S. Court of Appeals, the most liberal circuit in the country, has heard argument in two cases having to do with when, and how, government officers must provide aliens facing deportation proceedings advice of their rights, and what the appropriate remedies should be for failure to do so. The cases are Segovia v. Holder, and (ironically, given the name "Miranda warnings" that is applied to advice of rights in the criminal context) Miranda-Fuentes v. Holder.

Writing at "Immigration Impact", Kristin McLeod-Ball has argued, nearly persuasively, that, "[w]hen deciding the cases argued last week, the Ninth Circuit has the opportunity to change course and require a fairer process for the questioning of arrested noncitizens."

But, considered dispassionately, there are significant differences between criminal Miranda warnings and civil proceedings such as deportation, in that the stakes are higher – a complete loss of liberty, versus removal to one's homeland.

So are the evidentiary standards: the highest standard, "beyond a reasonable doubt," is applied in criminal cases, whereas the lesser "clear, convincing and unequivocal" proof is applied in administrative removal (deportation) cases, which are of course civil in nature.

Because the stakes, and the standard, are so high in criminal cases, it has been held that police must ensure that suspects are given their Miranda warnings, including the Constitutional Fifth Amendment right to silence, or risk having illegally obtained statements excluded from consideration or, in the most egregious circumstances, having the case dismissed and thus losing any prosecution that is presented as a result of arrests that are affected.

But there is no Fifth Amendment privilege in civil matters. To be specific, an officer can't compel an individual to speak against his own interest, but unlike in criminal cases where silence doesn't affect the presumption of innocence, adverse inferences may be drawn from a alien's decision to decline to answer questions regarding his manner of entry and status in the country.

What is more, to apply in a civil deportation case the standards used in a criminal matter, is to leave both the courts and the executive branch of government with a conundrum. When, in a fundamental sense, the wrongdoing is a continuing offense, and consists of the individual himself – or, at least, his physical, unlawful presence in this country – what do you do with the person thereafter? Give him a green card? Tell him to disappear back into the woodwork, not to be seen again? No, those are clearly not solutions.

While the cases confronting the Circuit Court are more complex, in that the individuals whose cases are being argued are permanent resident aliens – and thus, it might be argued that dismissal of the deportation case poses a plausible remedy – it is also important to recognize that permanent resident aliens are not brought into removal proceedings except for the most serious of immigration offenses, such as having been convicted of crimes that render them deportable.

Keeping that in mind, dismissing their cases so that they can return to the community they previously victimized as if nothing happened, and quite possibly re-offend, hardly seems like an equitable solution to society and certainly is injurious to the public safety.

The answer, then, must be in alternative consequences. The government must (as, in truth, it has) issue clear and consistent guidelines about the extent, time, and manner to provide the appropriate rights advisals in removal cases, for those officers who enforce our civil immigration laws. These guidelines should be coupled with a threat of serious sanctions in the form of disciplinary measures for officers who don't adhere to those guidelines.

But let us not pretend that dismissing the deportation cases "fixes" anything. We must hope that, in these important cases, the Ninth Circuit exercises logic and common-sense in its decision-making.