BIA restricts immigrants’ rights during ice arrests

Atty. Daniel P. Hanlon

US Immigration and Customs Enforcement (ICE) has continued to step-up arrest and detention levels of immigrants in the US to unprecedented levels under the Obama Administration, despite agency guidance suggesting a different stance.  Many of these arrests have come about as a result of well-publicized “worksite raids,” where ICE has been targeting manufacturing, construction and food service industries for large-scale assaults designed to round up multiple “undocumented aliens,” while others include arrests of individual unlawful entrants and “overstays” who are not high on the Administration’s list of top priorities  for immigration enforcement.  In a recent case, the Board of Immigration Appeals (BIA) added fuel to the debate over the propriety of such arrests, holding that ICE Officers are not required to advise arrested immigrants of their right to counsel or warn them that their statements can be used against them in subsequent removal proceedings.

On August 11, 2011, the BIA issued its decision in Matter of E-R-M-F & A-S-M-, regarding a husband and wife, both lawful permanent residents, who had been stopped at the border driving in from Mexico with their undocumented nephew on board.  In subsequent removal proceedings, the ICE charged the couple with “alien smuggling,” and relied on statements the couple had made while under arrest without warrant and while restrained from leaving Customs and Border Patrol (CBP) custody, but prior to being advised of their right to seek counsel,  or that any statements they made by could be used to incriminate them in removal proceedings.

Even though removal proceedings are considered civil proceedings, arrestees are not entitled to the same Constitutional safeguards as arrestees in the criminal context.  Since the 9th Circuit Court of Appeals had previously held that overnight detention at the border qualified as an “arrest,” such that CBP officers were required to advise an arrestee of his rights to counsel and to remain silent; however, the BIA initially remanded the case to the Immigration Judge to determine whether the incriminating statements the Respondents in Matter of E-R-M-F & A-S-M- had made at the time of their arrest and detention should have been suppressed and excluded from evidence.

Intervening case law from the 9th Circuit, however, held that the right to be notified of one’s right to counsel and to remain silent when under ICE or CBP arrest “does not attach until the alien has been arrested an formally placed in removal proceedings.”  Since, by regulation,  removal proceedings do not “commence” until a Notice to Appear (NTA) is filed with the Immigration Court, the BIA reasoned that any statements made by the Respondents in  Matter of E-R-M-F & A-S-M- while under arrest without warrant, but prior to issuance and filing of the NTA, could be used against them to establish their removability under smuggling charges, and the fact that they were not advised of their right to counsel or that their statements would be used against them did not require suppression of the statements.

While it appears likely that the Respondents in Matter of E-R-M-F & A-S-M- will seek review of the decision back at the 9th Circuit Court of Appeals, the chances of it being overturned are slim.  As a takeaway from this case, people must understand that they should not panic merely because they are being approached by an ICE or CBP Officer.  The new case does not mean that such an Officer can trample on their rights; it simply means that the Officers are not required to advise them of these rights prior to issuing and filing an NTA in removal proceedings. Therefore, the best advice, generally speaking, for a person when under ICE or CBP arrest would be to request that the arresting Officer allow him to speak to an attorney and issue and file an NTA against him if such is deemed necessary to allow him to lawyer up.  Otherwise, the person under arrest should remain silent.

Even though removal proceedings are not deemed “criminal” proceedings, ICE Officers must still respect the rights of any individual they are investigating or arresting, even if they are not required to advise him of his rights.  If confronted by an ICE Officer, an individual should be told what information the officer seeks, and respond very carefully; if at all. On the other hand, ICE Officers have broad discretion to hold someone found to be in violation of law and set an initial bond, so one must exercise care in providing information and responding to an initial questioning.  ICE Officers are more likely to hold a person without bond if they believe the person has been deceitful or evasive in the face of simple questioning.

ICE Officers still must also respect an individual’s rights to privacy and counsel.  ICE cannot enter a person’s home without a specific judicial warrant, authorizing their entry for a specific purpose, such as a search for a particular person or item.  Not panicking and informing the officer that one has retained or desires to retain an attorney is the most important step a person can take under these circumstances.  If ICE decides to take a person into custody, they must inform the person’s relatives as soon as possible as well, so that they may make arrangements for visitation and potentially hiring counsel before any court dates.

Once ICE decides to process an individual for removal proceedings, they must issue a Form I-862, Notice to Appear (NTA) in removal proceedings.  The Notice will generally list the allegations on which any charge that the individual is subject to removal is based, list a date for an initial hearing and inform the person of their rights to competent translation, attorney representation and fundamental fairness in the proceedings.  Unfortunately, many people receive NTA’s and still have no idea what charges are laid against them and what rights they have to fight back.   As a first step, and the sooner the better, people need to make sure they understand their rights, including right to counsel, and assert those tights confidently with the protection of the United States Constitution in their corner.


Daniel P. Hanlon has been practicing Immigration and Nationality Law exclusively since his admission to the California State Bar in 1993. Mr. Hanlon is the founder of Hanlon Law Group, a P.C. He has argued many important immigration appeals before the United States Court of Appeals for the Ninth Circuit, and successfully challenged INS rulings in the United States District Court for the Central District of California.

Mr. Hanlon’s experience spans several years, and covers a broad range of immigrant and nonimmigrant visa petitions, including those for working professionals, multi-national managers, treaty-traders, investors, athletes and entertainers. Mr. Hanlon also has vast experience in all family-based Petitions and

in labor certification applications under both Department of Labor-supervised recruitment and Reduction in Recruitment methods. Over the past several years, Mr. Hanlon has tried thousands of cases in Immigration Court involving Requests for Asylum in the United States, Cancellation of Removal, and Waivers of Grounds of Removability.  Mr. Hanlon graduated “With Distinction”  from the University of Michigan at Ann Arbor in April 1988, with a Bachelor of Arts degree in English. In May 1993, Mr. Hanlon graduated from Loyola Law School in Los Angeles.  He is a member of the American Immigration Lawyers Association, of which he sits on the Investors Committee. Mr. Hanlon has also appeared as a speaker before the Los Angeles County Bar Association, Immigration Section, on the 1996 immigration law amendments.  Hanlon Law Group, P.C. is headquartered at 225 S. Lake Avenue, Suite 1100, Pasadena, CA 91101, tel: (626) 585-8005, fax: (626) 585-8595, website:, email: ■


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