California Governor Jerry Brown recently had two bills related to immigration cross his desk, vetoing one and signing the other. The bill that was signed requires foreign nationals to be informed of their right to an attorney and right to remain silent before talking to federal immigration officials while in custody. Many people would assume this is an obvious fact, but the reality is the Due Process Clause of the Fifth Amendment only applies to criminal offenses – whereas most immigration offenses like visa overstays are civil offenses. It usually comes as a surprise to learn that the U.S. Supreme Court has determined that, because of the civil nature of the offense, foreign nationals are not guaranteed legal representation at their hearings – despite the severe consequences (deportation) of immigration offenses.
Being advised of their right to remain silent before ICE officials is of paramount importance, as immigrants often inadvertently provide information to ICE that is detrimental to their cases. Governor Brown called the legislation “a measured approach to due process and transparency principles,” as it acts as a Miranda-equivalent for foreign nationals. The law also requires that police departments give the same information to the immigrants attorney that they provide to ICE officials, and that a public forum must be held annually to disclose local law enforcement’s role in federal immigration policies. The new law stops short of providing free legal representation for those that cannot afford an attorney, but it is still a giant step forward in implementing the true spirit of the Due Process Clause. Colorado and New York City have similar policies in place, but not the result of state legislation.
The bill Governor Brown vetoed would have prevented local governments from contracting with for-profit companies to detain immigrants. The governor explained that he was waiting for DHS to finish examining its own use of for-profit detention facilities. However, a recent statement from ICE Director Sarah Saldaña indicates that it is unlikely that DHS will stop using for-profit detention centers because of the statutory requirements mandating 34,000 detention beds be maintained at all times. These for-profit detention centers have recently come under congressional scrutiny after allegations of inhumane conditions and treatment of detainees. (The Department of Justice’s announcement last August state that it would begin phasing out the use of private prisons for federal prisoners did not apply to people held in DHS detention centers for immigration violations.)