Interim Decision *1479 

Meal= or PANG* 

In Deportation Proceedings 

A-15169531 

Decided by Board Arno 9,1965 

(1) Authority exists under sections 235, 287(a) and 287(b), /mmigmtion and 

Nationality Act, for a Service officer to interrogate or take evidence T/0111 

an alien as to his right to remain in the United States, and respondent's prehearing sworn statement made voluntarily and withont_requesk: for kepre- • 

 eentation by counsel before an investigator of the Service is admissible In 

evidence in deportation proceedings (8 DIM 20.14(0) f Is not in violation 

of .due process or fair hearing; and is not bound by Judicial rules of evidence concerning antheuLtication'In criminal proceedings since a deportation 

proceeding is civil in nature rattier than criminal and Is not within Escobedo v. Illinois, 378 U.S. 478 (1964), and Monfort T.. tinned States, 377 

U.S. 201 (1964).** 

(2) An alien who refuses to testify at his deportation hearing must nevertheless 

show his right to stay in the United States or he must depart.** ' 

• 

Order: Act of 1952--Section 241(a) (2) [8 U.S.O. 1251(a) (2) Entered 

after having been refused permiseion to4tand as a 

crewman. 

The special inquiry officer found that respondent is 34 years old, 

married, male, alien, a native and citizen of China, who last arrived 

in the United States at New York on September 4, 1962. The special 

inquiry officer found further that he is a crewman who was refused 

permission to go ashore but that he did go ashore, and has remained 

in the-United States since that date. The special inquiry officer 

found respondent deportable on the charge set forth above and 

ordered him deported to the Republic of China on Formosa. 

Respondent requests termination of these proceedings on the 

ground that the above-found facts are not established by the record. 

*NOTE: See also, Matter of Pang, Int. Dee. No. 1502, of which tb- alien it 

this case is also the subject. 

*•Reaffirmed, 308 5'.2d 687 (0.A. a, 1966). 

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Interim.Deeision *1479 

-Respondent declined, through comma', to request voluntary departure 

from the United States, and he made no application for temporary 

withholding of deportation under section 243(h) of the Immigration. 

and Nationality Act. He appeals from the speciaL inquiry officer's 

finding that he is deportable. The appeal will be dismissed. 

The following facts are admitted: On November 4, 1964, two investigators for the Immigration and Naturalization Service stopped 

at a restaurant in Allentown, Pennsylvania, on a routine check. 

They went directly to the kitchen, identified themselves as investigators for the Immigration and Naturalization Service, talked to Mr. 

Low, one of the cooks, and then to respondent. The record contains 

an affidavit dated November 6, 1964, executed at Philadelphia, Pennsylvania, referred to hereinafter as Fallibit 2. Rvhibit 2 was written 

by Harold Stokes, one of the investigators, from information taken 

through an interpreter for the Immigration and Naturalization Service, Mr. Mervin Kan. 

Respondent alleges with regard to Exhibit 2 that it was improperly admitted into evidence: (1) in violation of the respondent's 

constitutional rights under the Fifth Amendment, (2) in violation 

of the rules of evidence concerning authentication and that a proper 

foundation was not laid, (3) in violation of the Supreme Court decisions guaranteeing the right to an attorney at the time an investigation for'deportation is initiated. Respondent further alleges that 

the Immigration and Naturalization Service did not sustain its burden of proof in the deportation hearing_ 

Exhibit 2, Affidavit, is written on Form I-2161 which has at the 

top a printed acknowledgment by the affiant stating, "I, 

acknowledge that the above-named officer has identified himself to me 

as an officer of the United States Immigration and Naturalization 

Service authorized by law to administer oaths and take testimony in 

connection with the enforcement of the Immigration and Naturalization laws of the 'United. States. I am willing to make a sworn 

statement before him. I understand that any statement which I 

make must be freely and voluntarily given and that it may be used 

by the Government as evidence in any proceedings against me or any 

other person. Being duly sworn, I make the following statement 

freely and voluntarily :". In this affidavit respondent stated that he 

was born in China on October 2, 1930, that he is a Chinese citizen, 

that neither of his parents was ever a United States citizen or resident in this country. He stated that he arrived in the 'United' States 

at New York September 4, 1962, and was refused permission to go 

ashore by the immigration officers, but that he went ashore with his 

"boss, the bosun" between 6 p.m. and 8 p.m. He further stated gen214 
Interim Decision $479 

erally his movements from town to town since his entry, gave his '- 

Social Security number, and stated that he had come to the United 

States only once before—as a member of the SS "Hindustan" in 1961 

or 1962 at which time.he was refused shore leave at Norfolk, Virginia. The affidavit is signed "Ah Chiu Pang" both on pages 1 and 

2. A certification by Mr. Kan, the interpreter, on page 2 declares (in 

part), "I read the foregoing to Ab. Chia Pang and that he stated that 

 understood were true and correct". 

Respondent's hearing was called for March 2, 1965, at Philadelphia, Pennsylvania. He requested a continuance to get a lawyer. 

He was informed that the order to show cause had instructed him to 

appear with a lawyer if he 'wished to be represented. He was nevertheless, given until March 12, 1965, to secure counsel. At the hearing 

on March. 12, and on March 19, 1965, respondent stated his name and 

where he resides, and he declined to answer all other questions on 

the ground that he was .invoking the Fifth Amendment. 

Mr. Harold Stokes, the investigator for the Immigration and Naturalization Service, testified that Allentown, Pennsylvania, is part of 

his District, and that he works out of the Philadelphia District office. He testified: that he and another investigator were making a 

routine search in Allentown,•ecanse there had recently been a number of desertions from Chinese. vessels in that district. Mr. Stokes 

identified respondent as the person, Ah Chin Pang, whom he found 

at Allentown. world g in the kitchen of the Rubes' Restaurant. 

First the investigators showed him their credentials and identified 

themselves as immigration officers. Respondent was asked for his 

passport or any other form of identification. He admitted that he 

had no papers, and that he was prepared to go with them. Mr. 

Stokes testified that respondent said in English, "I do not have any 

papers". Otherwise, the conversation between the investigators and 

respondent was through Mr. Low, a Chinese cook in the restaurant 

kitchen. who acted as interpreter. They next saw him in the Philadelphia office, perhaps two days later, at which time a statement was 

taken from respondent. This statement was written in Mr. Stokes' 

handwriting' and taken, through Mr. Kan, a regular Immigration 

and Naturalization Service interpreter. Mr. Stokes testified that he 

placed respondent under oath, and respondent signed the affidavit. 

Mr. Stokes also testified. that the respondent was told that the affidavit was a voluntary statement, that it could be used in any proceeding against him, and that he did not -ask. to be 'represented by 

counsel. 

Counsel contends that Exhibit 2 is not properly identified or related to respondent, in that Mr. Ken, the interpreter, testified that he 

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Interim Decision #1479 

did not specifically remember respondent, and could not identify respondent as the person who signed the statement; he could only 

testify as to the invariable procedure followed in all cases. Mr. Kan 

testified that he had worked as a part -time interpreter for the Immigration and Naturalization Service for approximately two and a half 

years, and is called to act as interpreter an average of "a couple 

times a month". He testified that he does not remember names, that 

he did not remember respondent by name, but that respondent spoke 

to him when he entered the hearing, saying, "We meet again", and 

this recalled hint to Mr. Kan. He testified that the initialc 

"A. C. P." on page 1 were placed there by respondent in the interpreter's presence. Mr. Kan testifies that the procedure is always 

the same, that he reads back the questions or statement to the alien, 

and then signs his own- name, and the one who is questioned is also 

asked to sign his name. He testified that he always reads the entire 

affidavit including the printing and the handwriting, that the one 

being questioned is always advised that he may refuse to answer, and 

that any testimony he gives may be used against him. Counsel 

objects that Exhibit 2 and the signature thereon were not adequately 

identified by Mr. Han. We believe that the interpreter's testimony 

was clear and positive that prior to the signing the interpreter read 

the statement back to respondent, and that iespondent signed his 

name to the affidavit. 

Therspeeial inquirtofficer cited Title 8, Code of Federal Regulations, section 242.14(enproviding that a special inquiry officer may 

receive in evidence any oral or written statement previously made 

by the respondent or any other person during an investigation which 

is material and relevant to any issue in the case. The Serviee Reprosentstive in oral argument referred to section 225 and section 2137(a) 

of the Immigration and Nationality Act providing that any officer 

or employee of the Immigration Service authorized by regulation 

prescribed by the Attorney General, shall have power without warrant to interrogate any alien or person believed to be an alien as to 

his right to be or to remain in the United States. We also commend 

for respondent's consideration section 287(b) regarding the authority of an officer or, employee of the Service to take and administer oaths and take and consider evidence concerning the privilege of 

any person to reside in the United -States. 

Counsel stands upon the contention that the Government bears the _ 

burden of proof in deportation proceedings. Section 291 of the Immigration and Nationality Act (8 U.S.C. 1361), however, provides: 

In any deportation proceeding under chapter 5 against any person, 

the burden of proof shall be upon such person to shot? the time, 

place, and manner of his entry into the United States, but in present216 
Interim Decision. #1479 

ing such proof he shall be entitled to the production. of his visa or 

other entry 'document, if any, and of any other documents and records, not considered. by the Attorney General to be confidential, pertaining to such entry in the custody of the Service. If such burden 

of proof is not sustained, such person shall be presumed to be in.the 

United States in violation of law. 

Respondent attempts to draw an analogy between the priliminary 

statement (Ex. 2) made by him and the preliminary interrogations 

in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 Led. 2d 977 

(1964), and ilfassiah v. United States,. 377 U.S. 201, 84 S.Ct. 1199, 

12 Led. 2d 246 (1964), -wherein it was held that an indicted defendant was entitled. to the aid of counsel following interrogation 

by police in an extra-judicial proceeding. Messiah, and Escobedo are 

criminal cases concerned with the admissibility of incriminating 

statements made by the defendants in absence of counsel and prior 

to trial. In Mania. the incriminating statement was obtained. by a 

federal agent after indictment while the accused was free on bail. 

The accused in the Embed° case made the incriminating statement during a police interrogation prior to indictment and after 

the police had denied his request to consult with his attorney. The 

police also failed to inform thi accused .of his right to remain 

silent. The convictions of both Messiah and Escobedo were reversed on constituticeial grounds. It has been held. repeatedly that 

immigration proeiedings are civil rather than criminal, ifareelZo v. 

Bands, 349 U.S. 302, 99 L.ed. 1107 (1955), and that the rules of evidence applicable in courts of law in criminal proceedings need not be 

followed. U. Seas rel. Impastato T. O'Rourke, 211 F.2d 609 (8th 

Cir., 1954), and cases cited. (cert. den. 348 U.S. 827). 

All of counsel's arguments regarding the admissibility of Exhibit 

2, the Government's burden of proof, and. the complaints regarding 

fair hearing and due procesa were made and rejected in Pereira V. 

Hurt, 169 F. Supp. 81 (D.C. N.Y., 1958), and Vlisidis v. Holland,. 

150 F. Supp. 678 (D.C. Pa., 1957). The latter case particularly 

briefs exhaustively the issues of the civil nature of deportation proceedings, adverse inferences from silence, and proof from official records. Pereira and Vlisidis were both alien seamen who jumped ship 

in the United States, who gave preliminary statements to immigrant 

inspectors, and who acquired counsel for hearings, following which 

they stood mute. On appeal they claimed that they had not been 

given due process and a fair hearing. Vlisidis quotes from Williams 

v. Butterfield, 145 F. Supp. 567 (D.O. Mich., 1956), as follows: 

The concept of due process is, of course, applicable to such a proceeding. but it 

does not necessarily embrace judicial rules of evidence. The plaintiff was 

afforded a hearing before the proper administrative agency ,. He tens given 312 

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Interim Decision *1479 

opportunity to testify and present evidence. Me declined to exercise his right 

in this regard. 

Respondenthas not denied that he is an alien, nor has he asserted 

that he is lawfully in this country. To paraphrase *Vlisitlis, the alien 

who-stands' mute at his hearing stands in no better position than 

that of an alien who chooses to testify. Sooner or later he must 

show his right to stay in the United States, or he must depart. 

The trial attorney for the Immigration and Naturalization Service 

offered in evidence the passport alleged to be respondent's, and containing• some of the same information as that set forth in Exhibit 2. 

The special inquiry officer refused to accept the passport in evidence. 

In Pereira v. Murff isupra, this Board disregarded a passport offered -under similar circumstances, but the court stated, "I- find that 

the passportivas also properly introduced into evidence". Since the 

epeCiay inquiry officer declined to admit the passport,' of course, it is 

not. in evidence here. 

We find that the special inquiry officer's determination of deportability was based upon reasonable, substantial and probative evidence, 

and that respondent's assertions that the proceedings were improperly conducted, and that error was committed in the admission 

of evidence, are groundless. We find respondent to be an alien and 

deportable on the charge set forth in the order to show cause. The 

appeal will be dismissed. 

ORDER: It is ordered that the appeal be and is hereby dismissed. 

218