Interim Decision #2451 

MATTER OF LI 

In Deportation Proceedings 

A-1589247 

Decided by Board November 20, 1975 

Respondent's deportability under section 241(a)(1) of the Immigration and Nationality Act 

as one excludable at entry because previously deported and not granted permission to 

reapply is established by clear, convincing and unequivocal evidence where the record 

contains a warrant of deportation and a Form 1-294 (Notice of Country to which 

Deportation Has • Been Directed and Penalty for Reentry Without Permission) both 

issued in 1968 to an alien with the same name as that of respondent, and respondent, 

after stating his name, refused to testify, and has offered no evidence to show that he 

had been granted the requisite permission to reapply prior to his reentry into this 

enuntly 

CHARGE: 

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of 

entry--previously deputed —no permission to reapply after 

deportation 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Robert Foley, Esquire John 1VHdanek 

4002 W. Underwood Street Appellate Trial Attorney 

Chevy Chase, Maryland 20015 

Counsel of record: 

Joseph F. O'Neal, Esquire 

100 State Street 

Boston, Massachusetts 02109 

In a decision dated May 14, 1975, the immigration judge found the 

respondent deportable as charged, denied his application for voluntary 

departure, and ordered his deportation to Hong Kong. The respondent 

has appealed from that decision. The appeal will be dismissed. 

Deportation proceedings were instituted against the respondent 

under section 241(a)(1) of the Immigration and Nationality Act as an 

alien who, having been previously deported, entered without permission and thereby became excludable at entry. After stating his name 

and indicating that he understood the charge being brought against him, 

the respondent refused to testify as to his deportability. Counsel for the 

respondent contends that the order of deportation is based upon evi514 
Interim Decision #2451 

dente obtained as the result of an illegal interrogation and arrest and, 

therefore, is invalid. 

Although evidence actually seized during an arrest may be suppressed in a criminal proceeding, the mere fact of an illegal arrest has no 

bearing on a subsequent deportation proceeding. U.S. ex rel. 

Bilokumsky v. Tod, 263 U.S. 149 (1923); Guzman-Flores v. INS, 496 

F.2d 1245 (C.A. 7, 1974); La Franca v. INS, 413 F.2d 686 (C.A. 2, 

1969). Inasmuch as we will limit our consideration to that evidence 

which was in the possession of the Service prior to the apprehension of 

the respondent, we need not discuss the legality of the respondent's 

arrest. See Matter of Yau, 14 I. & N. Dec. 630 (BIA 1974). 

The record before us contains a Warrant of Deportation and a Form 

1-294 (Notice of Country to which Deportation Has Been Directed and 

Penalty for Reentry Without Permission), both issued in 1968 to an 

alien with the same name as that of the respondent. From the identity of 

names and the respondent's failure to show otherwise, we may infer 

that these documents relate to the respondent and establish that he was 

previously deported from the United States. See Vlisidis v. Holland, 

245 F.2d 812 (C.A. 3, 1957); Williams v. Mulcahey, 250 F.2d 127 (C.A. 

6, 1957); 'Manor of Chasing, 12 L & N. Der_ 794 (BIA 1971). The 

respondent thereafter reentered the United States. The burden is upon 

the respondent to show that he had received permission to reenter as 

required by section 212(a)(17) of the Act. Solis-Davila v. INS, 456 F.2d 

424 (C. A. 5, 1972). The respondent refused to answer when questioned 

on this issue at the hearing and has offered no evidence to show that the 

requisite permission had been obtained prior to his reentry. We conclude that his deportability has been established by clear, convincing 

and unequivocal evidence. 

The respondent also refused to answer certain questions pertaining to 

his application for voluntary departure, and, as a consequence, the 

immigration judge denied the application. We agree with the immigration judge's conclusion that the respondent's silence prevented a full 

examination of his statutory eligibility for the relief of voluntary departure. Furthermore, after a complete review of the record, we agree that 

the respondent has not shown that he merits a favorable exercise of 

discretion. Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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