NO RIGHTS TO WARNINGS UNTIL ISSUANCE OF NTA

On August 11, 2011, In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the Board of immigration Appeals ruled that until an alien who is arrested without a warrant is placed in formal proceedings by the filing of a Notice to Appear (Form I-862), the regulation at 8 C.F.R. § 287.3(c) (2011) does not require immigration officers to advise the alien that he or she has a right to counsel and that any statements made during interrogation can subsequently be used against the alien.

Considering that Notice to Appear is not always issued immediately, the statement made during interrogation can have unprecedented consequences.