The recent dramatic convergence of immigration and criminal law is transforming the immigration and criminal justice system. While scholars have begun to examine some of the structural implications of this convergence, this Article breaks new ground by examining judicial responses and specifically the lens of Miranda v. Arizona. This Article examines the divergent and largely aberrant approaches that federal appellate courts have taken to determine whether Miranda warnings and rights apply to custodial inquiries about immigration status that have clear criminal and civil implications. Part I of this Article discusses the distinctions between civil and criminal immigration laws and the background principles of Miranda. Part II synthesizes the various and inconsistent tests courts have used to determine whether Miranda applies to dual civil and criminal immigration inquiries and examines how the failure of lower courts to apply Miranda consistently in the immigration context marks an unusual shift in the Supreme Court’s jurisprudence. It then explores how the emerging doctrine for immigrants departs (1) from the Court’s application of Miranda to dual civil and criminal interrogations in the tax context; (2) from precedent favoring objective tests; and (3) ultimately from the animating principles in Miranda to bring clarity to police, suspects, and courts on the admissibility of statements in custodial interrogations. Part III of this Article describes the broader implications of these doctrinal shifts in light of significantly increasing federal enforcement of criminal provisions of immigration laws and the increasing number of local law enforcement officials who are untrained in immigration law and yet are involved in these prosecutions. It also analyzes the incentive structure created by federal compensation programs for local law enforcement agencies to circumvent procedural protections for immigrants, relying on new data suggesting that the government’s aggressive criminal enforcement policy has raised serious constitutional issues. Finally, Part IV explores the ways in which these trends reflect declining procedural protections in the realm of criminal prosecutions for immigration-related offenses and proposes some solutions to ensure that immigrants’ rights are protected in criminal immigration enforcement.
Anjana Malhotra, The Immigrant and Miranda, 66 SMU L. Rev. 277 (2013)