Back on May 9, I suggested that a future post on whether the Fifth Amendment’s guarantee against self-incrimination applies to non-citizens abroad was forthcoming.  Though I’ve been a bit distracted by trial the last few weeks, I have not forgotten that commitment.

As a general matter, foreign nationals outside the United States are not entitled to constitutional protections, including due process protections. This limitation might extend to non-citizens interrogated abroad by U.S. law enforcement, or non-citizens without status in the United States giving interviews to U.S. consular officials in an effort to obtain a visa. But there’s a good case for arguing that the right against self-incrimination embedded within the Fifth Amendment’s text would preclude the use of any incriminating statements given without procedural warnings in a subsequent criminal prosecution. Such an argument would not depend on an extraterritorial application of the Fifth Amendment, but rather a domestic one.

The Second Circuit has explained that “foreign nationals interrogated overseas but tried in the civilian courts of the United States are protected by the Fifth Amendment’s self-incrimination clause.” The reason is that unlike, for example, the Fourth Amendment, which is violated at the moment of an unreasonable search or seizure, the Fifth Amendment’s bar on coerced self-incrimination is transgressed only when those coerced statements are used against the accused in a criminal proceeding.  In other words, the constitutional infirmity arises here in the United States, where any criminal prosecution would occur.  An example the Second Circuit offered to bolster its reasoning was compelled testimony before a grand jury pursuant to a grant of immunity from the government.  In some instances, a witness whose information is deemed critical to a larger prosecution will be given immunity and then forced to testify before the grand jury, even though such testimony might incriminate the witness. There is no Fifth Amendment violation because the immunity grant means that those statements cannot be used in a later prosecution of the witness. That suggested to the Second Circuit (as it does to me, for what it’s worth), that the right against coerced self-incrimination comes into play when the incriminating statements are sought to be used in a criminal trial.

I haven’t found a case addressing the precise question of a foreign national speaking to a consular officer in a U.S. consulate.  I’d appreciate a heads up from any reader who knows of such a case. Certainly, it won’t matter in many instances because the grant of a visa is a civil matter, and an applicant’s refusal to answer questions can be held against her. But I suspect that later on, the applicant would have a strong argument that any incriminating statements made in such an interview in the absence of a Miranda-like warning are inadmissible in a subsequent criminal prosecution of the applicant.