Interim Decision #2717 

MATTER OF CARRILLO 

In Deportation Proceedings 

A-23006036 

Decided by Board July 10, 1979 

(1) The immigration judge's denial of a continuance did not result in a denial of a fair 

hearing, as two continuances totaling 2 weeks had already been granted, counsel had 

stated her readiness to proceed after the first continuance, and the request was based 

upon the unsupported conjecture that the Service's evidence of deportability would 

arise from the respondent's previous arrest. 

(2) Where the respondent moves to continue the case for further preparation, an 

immigration judge is entitled to make observations on the nature and complexity of 

the case presented to him based upon his experience in similar cases, and such 

observations do not necessarily imply prejudgment. 

(3) It is not necessary to decide if the respondent was deprived of the right to counsel, 

and thus due process, when his attorney voluntarily left the hearing room, because the 

respondent had, before that point, with counsel present, admitted his alienage, and 

this admission, with section 291, was sufficient to establish his deportability. Matter of 

Gonzalez, 16 I&N Dec. 44 (BIA 1976). 

(4) A respondent charged with entry without inspection, a federal criminal offense under 

section 275 of the Immigration and Nationality Act, 8 U.S.C. 1325, could refuse to 

answer, on Fifth Amendment grounds, any question he reasonably believed might 

have a tendency to incriminate him or furnish proof of a link in a chain of evidence. 

Matter of R—, 4 I&N Dec. 720 (ETA 1952). 

(5) Neither the Service Trial Attorney nor the immigration judge is in a position to offer 

immunity from criminal prosecution. 

(6) A District Director's decision not to present a case for prosecution because, according 

to his understanding, it belongs to a class which the United States Attorney has 

judged not to warrant criminal prosecution, is not equivalent to a grant of immunity, 

whatever the practical effects may be, and a respondent cannot be made to testify 

after he has invoked his right against self-incrimination, simply upon the presentation of such an assurance. 

(7) Where deportability has been established by the respondent's admission of alienage 

before the invocation of his right against self -incrimination, the respondent's testimony following the immigration judge's incorrect advice to the respondent that he 

could not invoke this privilege is disregarded, and the respondent was not deprived .of 

a fair hearing 

CHARGE: 

Order. Act of 1952—Sec. 241(a)(2) (8 U.S.C. 1251(a)(2)]—Entered without inspection 

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Interim Decision #2717 

ON BEHALF OF RESPONDENT: 

William Blum, Esquire 

Clinics. Legal del Pueblo 

712 S. Grandview 

Los Angeles, California Doom 

ON BEHALF OF Ssavicc 

Ingrid K. Hrycenko 

Trial Attorney 

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

In a decision dated June 9, 1978, an immigration judge found the 

respondent deportable as charged and granted him the privilege of 

voluntary departure. The respondent appeals from this decision: The 

appeal will be dismissed. 

On appeal, the respondent contends that for a variety of reasons he 

was denied a fair hearing. He claims that the immigration judge 

abused his discretion in denying a request of a reasonable continuance, 

and in denying his right to counsel. He also asserts that he was denied 

due process because he was coerced into abandoning his Fifth Amendment right against self-incrimination, and also because the immigration judge was prejudiced and had prejudged the case. 

After reviewing the record, we have concluded that this latter contention of prejudgment is without merit. The immigration judge is 

entitled to make observations on the nature of a case presented to him. 

This is especially true when a request for a continuance is made, as in 

this case, where the counsel for the respondent stated that the case 

was legally and factually complex. It was not evident to the immigration judge, and is not evident to us, that there were 120 witnesses 

whose testimony was necessary to an adjudication of the charge of 

entry without inspection. Having handled numerous cases of the same 

nature previously, the immigration judge was well-qualified to comment on the complexity of the case as it was presented to him. In 

addition, he did indicate that he would be willing to adjourn the 

hearing if it developed that difficult or complex issues were present in 

the case (Tr. p. 15). We do not therefore find anything in the record to 

indicate prejudgment on the part of the immigration judge. 

We also do not agree that the respondent was denied a fair hearing 

because the immigration judge denied the request for a continuance. In 

the first instance, the assertion entirely ignores the fact that two 

continuances were granted, stretching over a period of 2 weeks. It also 

ignores the fact that the respondent's attorney stated that she would 

be ready to proceed after the first continuance was granted. The fact 

that she could provide statements from other attorneys detailing their 

views as to the amount of time it would take to prepare the case is not 

' We note that the Minim Legal del Pueblo was denied recognition by the Beard on 

May 21. 1979, subsequent to the instant appeaL 

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Interim Decision #2717 

highly persuasive, given the further fact that the respondent did not 

know what evidence the Service was going to present. While the 

respondent's attorney may have assumed that the evidence to be 

presented on the question of deportability would arise from the respondent's previous arrest, at his place of employment, this assumption was highly conjectural. It was therefore not unreasonable for the 

immigration judge to require the proceedings to go ahead as he did to 

handle the issues as they developed, and this fact did not deprive the 

respondent of a fair hearing. 

The respondent also contends that he was denied his right to due 

process when the deportation proceeding went ahead without the 

respondent's counsel being present. This event is said to have occurred 

during the course of the June 9, 1978, hearing, and followed the 

voluntary departure of the respondent's attorney from the hearing 

room after she had objected to the immigration judge's denial of the 

fourth request for a continuance. 

While in another context this argument possibly could have a valid 

basis, we have concluded that this issue need not be addressed in this 

particular instance. There is sufficient basis in the record to establish 

the respondent's deportability through testimony freely given by the 

respondent before the departure of the attorney representing him The 

transcript indicates that the respondent admitted that he was not a 

United States citizen (Tr. p. 24). This admission occurred when his 

attorney was present. There is no indication that it was coerced. Such 

an admission, in and of itself, is sufficient basis on which to ground a 

finding of deportability. His admission established his alienage. Once 

this fact was established, section 291 of the Immigration and Nationality Act, 8 U.S.C. 1361, requires that the respondent justify his presence 

in the United States, or be presumed to be in the United States in 

violation of law. The burden of proof is on the alien, and he cannot 

avoid this burden by resting upon his Fifth Amendment rights. Matter 

of Gonzalez, 16 I&N Dec. 44 (BIA 1976); De Lucia v. Flagg, 297 F.2d 58 

(7 Cir. 1952), cert. denied, 369 U.S. 837 (1962). The respondent has 

offered no proof to negate this presumption. We are therefore satisfied 

that the respondent is deportable, and that this deportability was 

established by clear, convincing, and unequivocal evidence. 

We have come to this conclusion without relying upon the testimony 

of the respondent which followed the departure of his attorney. We do, 

however, believe that comment is necessary upon the point the respondent raises in his appeal concerning the testimony delivered by 

the respondent after his attempt to invoke the Fifth Amendment right 

to remain silent. We consider this testimony inadmissible. The respondent was charged with entry without inspection. This is a federal 

criminal offense under section 275 of the Act, 8 U.S.C. 1325. The 

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Interim Decision #271? 

respondent could therefore refuse to answer, on Fifth Amendment 

grounds, any question he reasonably believed might have a tendency to 

incriminate him or furnish proof of a link in a chain of evidence. 

Matter ofR—, 4 I&N Dec. 720 (BIA 1952). Such a reasonable apprehension of danger could have existed here, despite the fact that the Trial 

Attorney offered a memorandum for file dated June 9, 1978, from the 

District Director which indicated that the respondent would not have 

criminal charges brought against him by the Service. This is not an 

effective grant of immunity which would foreclose the respondent's 

ability to invoke the Fifth Amendment right against self-incrimination. We have previously held that neither the Trial Attorney nor the 

immigration judge is in a position to offer such immunity. This is an 

action which can only be authorized by the Attorney General or 

certain officials designated by him. Matter of King and Yang, 16 I&N 

Dec. 502 (BIA 1978); Matter of Exantus and Pierre, 16 I&N Dec. 382 

(BIA 1977); 18 U.S.C. 6001-6005. It is therefore clear that a District 

Director's decision not to present a case for prosecution because, 

according to his understanding, it belongs to a class which the United 

States Attorney has judged not to warrant criminal prosecution, whatever its practical effect may be, is not equivalent to a grant of immunity. A. respondent cannot therefore be made to testify after he has 

invoked his right against self-incrimination simply upon the presentation of such an assurance. The immigration judge here was incorrect in 

advising the respondent otherwise. 

However, as we have pointed out, proof of deportability has been 

established by the respondent's admission of alienage and his failure 

to sustain his burden of proof in showing the time, place, and manner 

of entry into the United States. Since his admissions following the 

invocation of his right against self-incrimination do not form the basis 

for our finding of deportability, and the other points raised on appeal 

have not been substantiated, there exists no ground on which to 

sustain this appeal. It will accordingly be dismissed. 

ORDER= The appeal is dismissed. 

FURTHER ORDER: Pursuant to the immigration judge's order, 

the respondent is 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 respondent shall be deported as 

provided in the immigration judge's order. 

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