interim Decision #2647 

MATTER OF KING AND YANG 

In Deportation Proceedings 

A-15527215 

A-15527216 

Decided by Board April 25, 1978 

(1) An immigration judge has no authority to grant immunity from criminal prosecution 

and he cannot reject a valid Fifth Amendment claim by purporting to bind the law 

enforcement agencies in their freedom to prosecute. 

(2) The respondents' Oriental appearance, combined with the past history of illegal alien 

employment at the particular restaurant where they were encountered, and an 

anonymous tip, gave rise to a reasonable suspicion by a Service officer of alienage 

sufficient to justify the very limited invasion of privacy engendered by a nondetentional 

questioning. 

(3) A Service official's knowledge that the respondents were not in possession of their 

immigration documents created a reasonable belief that the respondents were in violation of the immigration laws. This belief that a violation of the law has occurred, 

together with a reasonable belief that the respondents were "likely to escape," justified 

the officer's determination to place the respondents in custody. 

(4) Under section 264 of the Immigration and Nationality Act, an alien is required to have 

in his possession a certificate of alien registration or alien registration receipt card and 

similarly, he is required to produce it to a Service officer engaged in normal and proper 

fulfillment of his duties. Therefore, there was no violation of the respondents' Fourth or 

Fifth Amendment rights when deportability was based on the information obtained as 

the result of a lawful detention and voluntary handing over of their Crewman's Landing 

Permits (Forms 1-95). 

{5) Inasmuch as the respondents were clearly bona fide seamen at the time of their illegal 

entry, they had made previous trips to the United States as seamen and had reshipped 

within the allotted time, they had not previously violated the immigration laws, they 

manifested an ability and willingness to depart voluntarily and there was nothing to 

show a lack of good moral character, they merited voluntary departure in the exercise of 

discretion. 

■CEARGE: 

Order: Act of 1952—Section 241(a)(2), I. & N. Act [8 U.S.C. 1251(a)(2))—Noniminigrant crewman—remained longer [both recrinnripnts) 

gitl BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE: 

Martin L. Rothstein, Esquire George Indelicate 

Fried, Fragomen & Del Rey Appellate Trial Attorney 

515 Madison Avenue 

New York, New York 10022 

"BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

502 
interim iiecision IFZ04 I 

In decisions dated April 21, 1976, the immigration judge found the 

two respondents deportable under section 241(a)(2) of the Immigration 

and Nationality Act as crewmen who remained longer than 29 days 

authorized by the Service, and denied them the privilege of voluntary 

departure. The two cases have been consolidated On appeal. The .respondents challenge the finding of deportability, alleging that they were 

based upon evidence obtained in violation of the Fourth and Fifth 

Amendments. They also challenge . the denial of voluntary departure. 

The appeal will be dismissed as to the finding of deportability, and 

sustained as to the denial of voluntary departure. 

The two respondents were arrested during a Service operation at a 

Chinese restaurant, where they were employed as a waiter and a 

dishwasher. Upon being interrogated as to their alien status, both 

respondents stated that they were Chinese, and that their immigrations 

were at their common place of residence,' an apartment building operated by the restaurant owner. The two respondents were then placed in 

detention in a Service vehicle and subsequently transported to the 

apartment house where, while still under detention they gave to a 

Service officer their Crewman's Landing Permits (Forms I-95). Based 

on these forms, the two respondents ware arrested. These documents 

were the only evidence offered by the Government at the hearing to 

establish deportability. 

At the hearings on April 21, 1976, both respondents stood mute, 

acknowledging only that the Orders to Show Cause had been served 

upon them. They based their refusal to testify upon a claim under the 

Fifth Amendment justified by the possibility of criminal prosecution 

under sections 252(c) and 264(e) of the Immigration and Nationality Act. 

The immigration judge sought to compel the respondents to testify, 

stating that the Government would be precluded from prosecution if 

they did so. 1However, it is beyond the power of an immigration judge 

to reject a valid Fifth Amendment claim by purporting to bind the law 

enforcement agencies in their freedom to presecute. The immigration 

judge cannot grant immunity from criminal prosecution. Nonetheless, 

since the immigration judge apparently did not rely upon the respondents' justified silence under the Fifth' Amendthent in finding them 

deportable as charged, we do not address the issue of whether reliance 

upon a respondent's statements, compelled at the hearing in spite of a 

valid Fifth Amendment claim, would warrant reversal. The sole issue as 

to deportability considered on appeal is whether the two documents, the 

An alien can, because of the possibility of criminal prosecution for. violation of the 

immigration laws, decline to testify at a deportation hearing on the basis of the Fifth 

Amendment. The alien may, however, unlike the criminal defendant, be required to 

answer nonincriminatory -questions about his alien status. Lava. v. INS, 422 F.24 807 (7 

Cir. 1967). 

503 
1.4 J.W...L.LLIL AIGt..101.1-111 IrLtrt I 

Forms 1-95 procured from the respondents, should have been suppressed. 

The respondents first challenge the constitutional validity of the initial interrogation in the restaurant. At the hearing, the Service officer 

who conducted the interrogation testified that he obtained the consent 

of the owner of the restaurant to enter the cooking area. The presence of 

the officer on the premises, then, was clearly proper. See Schneckloth. v. 

Bustantonte, 412 U.S. 218 (1973). The officer testified that he received a 

letter, signed by an unknown person and with no return address, stating 

that there were illegal aliens employed in the restaurant. The letter was 

not produced at the hearing. Nevertheless, the immigration judge was 

free to believe the officer's testimony that the letter had been received. 

The officer also testified that he had, on three privious occasions, arrested illegal aliens working within the defined area of the kitchen of the 

restaurant. He testified further that it was his intent to interrogate any 

person of Oriental appearance "between the ages of 15 and 60" (Tr. of 

King, p. 17) who was employed at the restaurant. His interrogations of 

the respondents, he stated, were not occasioned by any particular actions 

or characteristics of the respondents which led the officer to believe that 

they were aliens. Rather, the respondents were interrogated because 

they were of Oriental appearance, and because they were employed at 

the restaurant. 

Under section 287(a)(1) of the Immigration and Nationality Act, an 

officer of the Service has the power -without warrant to interrogate any 

person believed to be an alien as to his right to be in the United States. 

However, it is well settled that the powers conferred on Service officers 

under section 287(a)(1) are circumscribed by the right of individuals 

under the Fourth Amendment to b e free from unreasonable searches 

and seizures. United States v. Brigrzoni-Ponee, 422 U.S. 873 (1975). In 

Brignoni-Ponce, where the defendant challenged a vehicular stop which 

took place away from a fixed checkpoint, the Supreme Court held that 

Service officers may stop an automobile only "if they are aware of 

specifically articulable facts, together with rational inferences from 

those facts, that reasonably warrant suspicion that the vehicles contains 

aliens who may be illegally in the country." 422 U.S. at 884. Counsel 

argues that the standard adopted in_ Brigncnii-Ponce should be applied 

in the present situation. 

We do not have here the temporary detention of a moving vehicle 

involved in Brignoni-Ponce. See United States v. Martinex-Fuerte, 428 

U.. S. 543, 560-562 (1976). At the time the aliens were first questioned in 

the restaurant no detention was involved. There was a reasonable 

suspicion of alienage. The Service officer testified at the hearing that on 

three previous occasions he had participated in the arrest of illegal 

alters employed by the identical establishment. The respondents' Orien, 

504 
Interim Decision #2647 

tal appearance, combined with the past history of illegal alien employment at that particular restaurant, and the anonymous tip, clearly 

would give rise to a reasonable suspicion of alienage sufficient to justify 

the very limited invasion of privacy engendered by a nondetentional 

questioning. Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1069- 

1071 and n. 10 (7 Cir. 1976), aff'd in part and vacated in part, 548 F.2d 

715 (7 Cir. en banc 1977); United States v. Morales-Cuevas, 546 F.2d 

427 (9 Cir. 1976) (table); Ojeda-Vinctles v. INS, 523 F.2d 286 (2 Cir. 

1975); Shu Fuk Cheung v. INS, 476 F.2d 1180 (8 Cir. 1973); Cheung Tin, 

Wong v. INS, 468 F.26 1123 (D.C. Cir. 1972); Au, Yi Lau v. INS, 445 

F.2d 217 (D.C. Cir.), cert. denied 404 US: 864 (19.71); Yam Sang Kwai 

v. INS, 411 F.2d 683 (D.C. Cir. 1969), cert. denied 396 U.S. 877 (1970). 

See also Marquez v. Kiley, 436 F. Supp. 100 (S.D.N.Y. 1977). 

Upon learning that the respondents were aliens, the Service officer 

asked them if they were in possession of immigration documents which 

could establish their status. When the Service officer was told that the 

respondents' documents were at the apaitrnent house, the respondents 

were placed in the back seat of a Service vehicle from which the inside 

handles had been removed. At this point they were dearly in custody. 

Since the officer knew that the respondents were aliens and that they 

were not in possession of their immigration documents, the officer had a 

reasonable belief that the respondents were in violation of the immigration laws SrP Neda-Vinales, supra, at 288; Cheung Tin Wong, supra 

at 1128. However, under section 287(a)(2), in order to make an arrest an 

officer must not only have reason to believe that a violation of the law 

has occurred, but he must also reasonably believe that the individual is 

"likely to escape." Due to the difficulty of making such an on-the-spot 

determination, the courts have held, essentially, that an officer's determination will not be upset if there is- any reasonable basis for it. Marquez v. Kiley, supra, at 108. See United States v. -Cantu, 519 F.2d 494 (7 

Cir.), cert. denied 423 U.S. 1035 (1975); United States v. Meza -Campos, 

500 F.2d 33, 34 (9 Cir. 1974); LaFranca v. INS, 413 F.2d 686, 689 (2 Cir. 

1969). 

Here, there was plainly a reasonable basis for the arrests not only on 

the ground that the aliens might escape, but also for the purpose of 

further investigation into their immigration status. 

Counsel for the• respondents also argues that they were compelled to 

turn over their documents to the Service officer, and that, in view of the 

criminal penalties which attach to out-of-status crewmen under section 

252(c) of the Act, they were thereby forced to incriminate themselves in 

violation of the Fifth Amendment. It has not been shown that there was 

any search, or anything other than a voluntary handing over of the 

documents. However, in any event, under section 264 of the Act, an 

alien is required to have in his possession a certificate of alien registra505 
interim Decision #2647 

tion or alien registration receipt card. The Form 1-95 issued to crewman 

is such a certificate of alien registration, and is subject to the requirements of section 264. Matter of Yau, 14 I. & N. Dec. 630 (BIA 1974). A 

necessary corollary to the duty to carry this document is the duty to 

produce it to a Service officer engaged in the normal and proper fulfillment of his duties. Matter of Yau, supra. The information content of the 

Form 1-95 is completely determined by the Government; a duplicate 

copy of the Form 1-95 is kept by the Immigration and Naturalization 

Service in its records. 

We note that this is a civil deportation proceeding, not a criminal 

prosecution for violation of section 252(c). No such prosecution has been 

instituted. However, even in the context of a criminal prosecution, the 

respondents' argument would be questionable under the "required records" doctrine. Shapiro v. United States, 335 U.S. 1 (1948). See also 

Marchetti v. United States, 390 U.S. 39, 57 (1968). In the context of a 

criminal prosecution for violating sections 262, 265, 266(a) and 266(b) of 

the Act, it was held that the alien registration statutes are "essentially 

noncriminal and regulatory provisions" which come within the "required 

records" doctrine. United States v. Sacco, 428 F.2d 264, 271 (9 Cir. 

1970), cert. denied 400 U.S. 904. See also United States v. CamposSerrano, 430 F.2d 173 (7 Cir. 1970), aff'd on another ground, 404 U.S. 

293 (1971); Matter of Yau, supra; Matter of Chen, Interim Decision 2440 

(MIA 1975), affd Chen v. INS, 537 F.2d 566 (1 Cir. 1976). See further 

Fisher v. United States, 425 U.S. 391 (1976); Andresen v. Maryland, 

427 U.S. 463 (1976). We do not find any violation of the respondents' 

Fourth or Fifth Amendment rights. 

The respondents also appeal from the decisions of the immigration 

judge denying them the privilege of voluntary departure. In denying 

voluntary departure, the immigration judge relied upon the fact that 

the respondents had been illegally in the United States for a period of 

one and one-half years in one case and two years in the other. 

In Matter ofM--, 4 I. & N. Dec. 626 (BIA 1952), we sat out the 

standards which should govern the grant of voluntary departure to 

crewmen. Once the requisite good moral character has been established, the immigration judge should consider previous violations of the 

immigration laws, the ability and willingness of the respondent to depart from the United States, and whether the alien was a bone fide 

seaman at the time of entry. See also Matter of Tsang, 14 I. & N. Dec. 

94 (BIA 1973); Matter of Ocampo-Ocampo, 13 I. & N. Dec. 661 (BIA 

1971). The fact that an alien is presently in the United States illegally is 

clearly not a factor in determining his eligibility for voluntary departure. To so hold would lead to the anomalous result of rendering 

v-oluntary departure unavailable to all except those not subject to deportation. 

506 
inLernu .L.Mt.7.1,b1V11 

We have reviewed the record in both cases, and find that the two 

respondents were clearly bona fide seamen at the time of their illegal 

entry. Both had made previous trips to the United States as seamen and 

had reshipped within the allotted time. Similarly, there is no evidence 

that either respondent has previously violated the immigration laws. 

Both have manifested an ability and willingness to depart from the 

United States if voluntary departure is allowed. There have been no 

suggestions that either of the respondents lack the requisite good moral 

character. We shall therefore sustain the respondents' appeal from the 

denial of voluntary departure, and grant them 20 days in which to 

depart voluntarily from the United States. 

ORDER: The appeals are dismissed as to the finding of deportability. 

The appeals are sustained as to the denial of voluntary departure. 

FURTHER ORDER: The respondents are permitted to depart from 

the United States voluntarily within 30 days from the date of this order 

or any extension beyond that time as may be granted by the District 

Director; and in the event of failure so to depart, the respondents shall 

be deported as provided in the immigration judge's orders. 

507