Interim Decision #2486 

MATTER OF BULOS 

In Deportation Proceedings 

A-20798198 

Decided by Board March, 26, 1976 

(1) Search at border of respondent's suitcase carried by U.S. citizen friend, where 

respondent was not present, and seizure therefrom of respondent's Argentine passport, 

occurring in the course of routine customs border inspection does not exceed the 

Service's authority under section 287(c) of the Immigration and Nationality Act. 

(2) Respondent identified himself and thereafter stood mute with respect to the charges of 

deportability. Argentine passport was issued to a person with the same name as 

respondent and contained a photograph mumbling hini_ kaid passport did not contain a 

visa permitting entry into the United States or a stamp indicating inspection and entry. 

These facts, coupled with respondent's failure to deny the passport was his, constitute 

clear, convincing, and =equivocal evidence on which to base a finding of alienage and 

deportability as to respondent under ocetion 241(2)(2) of the Act. 

(3) Under 8 CFR 242.17(d), an application for voluntary departure shall not be held to 

constitute a concession of alienage or deportability in any case in which the respondent 

does not admit his alienage or deportability. Since respondent's testimony in connection 

with his application for voluntary departure simply corroborated what had already been 

established by his passport, and his failure to deny that the passportwas his, reliance on 

that testimony by immigration judge, while erroneous, was not prejudicial. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) U.S.C. 1251(a)(2))—Entered without inspection 

ON BEHALF OF RESPONDENT: 

Austin Fragomen, Esquire 

Fried, Fragomen & Del Rey, P.C. 

515 Madison Avenue 

New York, New York 10022 

ON BEHALF OF Sravrcn: 

George Indelicato 

Appellate Trial Attorney 

This is an appeal from the November 22, 1974 decision of an immigration judge finding the respondent deportable as charged and directing 

his deportation to Argentina. The appeal will be dismissed. 

After identifying himself by name and stating that he had received a 

copy of the order to show cause from the Immigration and Naturalization Service, the respondent refused 'tó testify aS to his deportability, 

asserting the privilege against self-incrimination of the Fifth Amend645 
Interim Decision #2486 

ment of the United States Constitution, and putting the Service to its 

proof of the LIlegations in the order to show cause. The respondent did 

testify in support of his application for voluntary departure. The respondent raised several issues and objections during the course of the 

deportation proceeding and asserts them now on appeal. We shall respond to each in turn. 

To prove that the respondent was an alien the Service introduced an 

Argentine passport bearing his name and a photographic likeness of 

him. The respondent moved to suppress this evidence as the product of 

an illegal search. The passport had been seized by immigration officers 

at the Canadian border from a suitcase which was in the possession of a 

United States citizen friend and co-worker of the respondent. The 

respondent asserted in his motion that the Service had exceeded the 

authority of section 287(0 of the Immigration and Nationality Act when 

it searched luggage carried by an individual whose United States citizenship was not in question 'and who therefore was not amendable to 

exclusion from the United States. 

Although the respondent's suitcase was searched and his passport 

seized, these personal effects were in the possession of his friend, who 

was crossing the United States-Canadian border, and the respondent 

himself was not present. The search of the respondent's suitcase was 

part of a routine customs border inspection, and it was proper procedure 

for the 'customs officer to turn the passport, traveling without its owner, 

over to the officers of the Immigration and Naturalization Service at the 

border. Furthermore, the respondent's friend made no objection to the 

search or to the seizure of the passport, and he testified that if he had 

been told of his right to object, he would nevertheless have consented. 

Accordingly, we uphold the immigration judge's decision to deny the 

motion to suppress the evidence obtained as a result of searching the 

respondent's suitcase at the Canadian border. 

When he moved to suppress the Service evidence, the respondent 

requested than; a separate hearing be held on the motion, or, in the 

alternative, that evidence in connection with the motion not be considered in determining the issue of the respondent's deportability. He 

cited Simmons. v. United States, 390 U.S. 377 (1968), in support of his 

motion. In Simmons the Supreme Court of the United States held that 

testimony given by a defendant in criminal proceedings in support of a 

motion to suppress evidence on Fourth Amendment grounds could not 

thereafter be admitted against him at a trial on the issue of guilt unless 

he made no objection. Counsel for the respondent urged that by analogy, evidence in support of a motion to suppress evidence on Fourth 

Amendment, grounds should not thereafter be admitted against a respondent in deportation proceedings on the issues of alienage and deportability. . 

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Although the immigration judge denied this request, it does not 

appear to us that he determined the respondent's alienage or deportability on the basis of testimony given on the motion to suppress, and in 

fact, the respondent did not testify on this motion, although he did 

present as a witness his United States citizen friend who carried his 

suitcase across the border. Under these circumstances, we do not find it 

necessary to address the question of whether a separate hearing should 

be held on a motion to suppress evidence, or whether testimony given 

by a respondent in support of such a motion should or should not 

thereafter be admitted over his objection on the issues of alienage and 

deportability. 

Counsel for the respondent moved to terminate the proceedings alleging that the Service had exceeded its authority under section 287(a)(2) of 

the Act when its officers improperly arrested the respondent without a 

warrant on November 13, 1974, when they had sufficient information on 

which to base an arrest warrant as early as November 6, 1974. That was 

when the respondent's passport was discovered and the respondent's 

friend was interviewed at the Canadian border. The order to show cause 

and warrant of arrest were not issued until November 14, 1974. 

It is possible that a warrant could have been obtained prior to the 

respondent's arrest. However, assuming, arguend,o, that there was a 

defect in the arrest procedure, it is cured if a resulting deportation order 

is adequately supported. Bilokumsky v. Tod, 263 U.S. 149 (1923); La 

Franca v. INS, 413 F.2d 686, 689 (C.A. 2, 1969); Vlissidis v. Anadel, 

262 F.2d 398, 400 (C.A. 7, 1959). 

Counsel for the respondent argues that the Service failed to sustain 

its burden to prove alienage and deportability by clear, convincing, and 

unequivocal evidence, since the finding of alienage and deportability 

was based on the presumption contained in section 291 of the Act. That 

section places the burden to show the time, place, and manner of entry 

into the United States upon the respondent in deportation proceedings, 

and provides that if that burden is not sustained, the respondent shall be 

presumed to be in the United States in violation of law. Counsel contends that when the charge is entry without inspection, this statutory 

provision places "an impermissible burden" upon the respondent when 

he asserts the Fifth Amendment privilege against self-incrimination, for 

illegal entry can subject a person to criminal penalties. According to 

counsel, in such a case the respondent is in a double bind, for if he 

testifies as to how he entered the United States, he is vulnerable to 

prosecution for illegal entry, but if he asserts his privilege not to testify, 

he is vulnerable to prosecution anyway because illegal entry is presumed under section 291. Thus counsel asserts that it is unconstitutional 

to require a respondent to prove the time, place, and manner of entry 

under section 291 when the charge is entry without inspection and when 

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the respondent asserts his Fifth Amendment privilege not to testify. 

We lack jurisdiction to pass upon the constitutionality of the statutes 

we administer. Matter of Chery and Hassan, 15 I. & N. Dec. 380 

(BIA 1975); Matter of L—, 4 I. & N. Dec. 556 (BIA. 1951). Moreover, we 

agree with the immigration judge that the Argentine passport issued to 

a person with the same name as the respondent and containing a photo-

.graph resembling him, and which does not contain a visa permitting 

entry into the United States or a stamp indicating inspection and entry, 

coupled with the respondent's presence in the United States and his 

failure to de:ay that the passport is his, is clear, convincing, and unequivocal eviience on which to base a finding of alienage and deportability. Therefore, reliance on the section 291 presumption merely provides 

corroboration of the respondent's alienage and deportability. 

The immigration judge based his finding of alienage and deportability 

partly on the respondent's testimony in support of his application for 

voluntary departure. Counsel points out that this was improper. 

Under 8 CFR 242.17(d) an application for voluntary departure shall 

not be held to constitute a concession of alienage or deportability in any 

case in which the respondent does not admit his alienage or deportability. In this case the alien steadfastly refused to testify as to alienage or 

deportability in the case-in-chief on Fifth Amendment grounds. When 

he offered to testify, concerning voluntary departure, he did not intend 

to testify as to the manner of his entry into the United States until the 

immigration judge indicated that there was no possibility that the 

application would be granted unless such testimony were given (Tr. pp. 

25-26). Still, counsel for the respondent stated that the respondent's 

testimony was to be given "purely for the purposes of our application for 

voluntary departure." (Tr. p. 26.) The respondent then stated, among 

other things, that he was a native of Argentina and that he had entered 

the United States without inspection. The immigration judge relied 

partly on this testimony in arriving at the conclusion that the respondent was deportable as charged. He should have disregarded this part of 

the respondent's testimony. 

There appears to be a misconception concerning the scope of the 

testimony of a respondent who is applying for the privilege of voluntary 

departure. Such testimony is given for the purpose of ascertaining 

whether the respondent is eligible for, and deserves a grant of, that 

privilege. To establish eligibility for voluntary departure the respondent need show only that he has been a person of good moral character 

for at least five years preceding the application, section 244(e), Immigration and Nationality Act, and that he is willing to depart promptly 

from the United States, 8 CPR, 244.1. The testimony of a respondent in 

connection with his application for the privilege of voluntary departure 

may or may not touch upon alienage and deportability. In any case, such 

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testimony must not be used for the purpose of either establishing or 

confirming his alienage or deportability. Nevertheless, since the respondent's testimony was simply corroborative of what had already 

been established by his passport and his failure to deny that the 

passport was his, we are satisfied that the immigration judge's erroneous reliance on that testimony was not prejudicial. 

We find the respondent's contention that the immigration judge 

abused his discretion in denying voluntary departure to be without 

merit. 

In view of the foregoing, we agree with the result of the immigration 

judge's decision and shall dismiss the appeal. 

ORDER: The appeal is dismissed. 

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