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When Fox News host Mark Levin asked Advancing American Freedom senior legal fellow Hans von Spakovsky why ICE agents often do not recite Miranda warnings to detained migrants, von Spakovsky gave the right answer: immigration enforcement is a civil administrative process, not a criminal prosecution, and the rules that govern criminal arrests do not map neatly onto border operations. This distinction is not punditry; the Supreme Court and federal law treat removal as a civil matter, meaning the traditional criminal Miranda framework was never designed to govern routine immigration questioning.
Conservatives who value the rule of law should not pretend Miranda’s prophylactic rules are a one-size-fits-all solution for every encounter involving noncitizens. The Supreme Court has made clear that Miranda warnings are a judicially crafted prophylactic, and the Court has held that the failure to give Miranda does not automatically create a federal damages claim under Section 1983, a ruling that undercuts efforts to weaponize Miranda as a backdoor civil-rights litigation tool against front-line agents. Those legal realities matter when assessing whether ICE should be second-guessed for following the civil removal framework.
There is also a regulatory framework for how detained noncitizens are handled that differs from criminal arrests: immigration regulations require that detainees eventually be informed of the reasons for their arrest and of limited rights, but agencies and courts have long parsed when and how those advisals must occur in an administrative setting. The Board of Immigration Appeals and immigration-related precedents have allowed procedures that permit immigration officers to conduct preliminary questioning and handle custody under rules tailored to removal proceedings rather than mirroring criminal booking procedures.
Put plainly, demanding that ICE read a full Miranda script every time a Border Patrol agent needs to identify a smuggler, assess threats, or stop a trafficking ring would be a policy disaster masquerading as concern for due process. Our sovereign border cannot be run like a municipal police precinct where every cheeky argument about phrasing delays enforcement and gives cartels another window to act. Americans who pay taxes and obey the law expect the federal government to give ICE the tools and discretion necessary to keep communities safe.
That said, conservatives should not hand-wave accountability; distinguishing civil from criminal does not mean government agents are above the law or may coerce false statements. The proper response is clear rules from Congress and deference to the Supreme Court’s line between constitutional guarantees and court-made prophylactic doctrines, not a media-driven campaign to neuter enforcement by treating every immigration interview as a criminal prosecution.
The real debate is about policy and priorities: do we want borders that are secure and an immigration system that functions, or do we want theatrical legalism that empowers smugglers and undermines public safety? Responsible conservatives should defend lawful enforcement, insist on clear statutory guidance for agent conduct, and demand that courts respect the difference between civil removal and criminal prosecution instead of conflating the two for political points.
In the meantime, hardworking Americans should recognize the difference between protecting constitutional rights and hobbling the agencies charged with defending our sovereignty. If opponents of sensible enforcement want to play constitutional martyrdom on cable TV, let them—patriots will keep pushing for a secure border and for immigration rules that work in practice, not just for lawyers and headlines.
