BIA: Counsel & interrogation advisories not required until NTA filed

The BIA held last month that a regulatory requirement that noncitizens be advised of their right to counsel and that any statement made may be used against them does not apply prior to DHS filing a Notice to Appear with an immigration court. Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011) (Cole, Pauley, and Wendtland, Board Members). Board Member Pauley wrote the panel’s decision.

Section 287.3(c) of Title 8 of the Code of Federal Regulations provides in part: “Except in the case of an alien subject to the expedited removal provisions of section 235(b)(1)(A) of the Act, an alien arrested without warrant and placed in formal proceedings under section 238 or 240 of the Act will be advised of the reasons for his or her arrest and the right to be represented at no expense to the Government….The officer will also advise the alien that any statement made may be used against him or her in a subsequent proceeding.”

The key phrases in this regulation, the BIA explained are the explanation that these advisories are limited to individuals “arrested without a warrant” who are then “placed in formal proceedings.” Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. at 583. The Board interpreted these phrases to mean that “an alien who is arrested without a warrant is not entitled to advisals until he or she is ‘placed in formal proceedings.’” Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 583.

As INA § 239(a)(1) suggests (though the Board does not cite to it), removal proceedings are initiated upon DHS filing a Notice to Appear in an immigration court. In the Board’s language, “the regulation only requires immigration officers to advise the alien of his or her rights after the alien is placed in formal proceedings by the filing of a Notice to Appear.” Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. at 585.

Because immigration officials are not required to advise a noncitizen of the right to counsel nor that any statements made may be used against them in removal proceedings prior to an NTA being filed, any statements made prior to receiving the § 287.3(c) advisories are admissible in removal proceedings so long as they occurred before an NTA was filed. Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. at 588.

In this case, the respondent made a damaging statement to immigration officials at the border—well before DHS filed an NTA. Based on the BIA’s interpretation of § 287.3(c), this information was admissible in removal proceedings. Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. at 588.