Interim Decision #2430 

MATTER OF RINA 

In Deportation Proceedings 

A-13197621 

Decided by Board September 12, 1975 

(1) Where respondent, travelling by automobile upon his return to the United States on 

November 15, 1969 after a trip to Canada, passed at least two signs giving directions to 

the nearest immigration inspection station, and it was not until respondent's car had 

passed the second sign and the last clear chance to proceed to the inspection station that 

the car was stopped by a Service Border Patrol Agent, the stop occurred at the 

"functional equivalent" of the border within the scope of Almeida-Sanchez v. United 

States, 413 U.S. 266 (1973), and United States v. Brignoni-Ponee, 422 U.S. 813 (1975). 

(2) Since respondent's car was travelling slowly as if unsure of the area there were 

several people in the ear; the licerise plates did not bear the local eauritaf prefix; the road 

was infrequently travelled by cars other than those of people who lived there, and the 

car passed by the last clear point to proceed to the inspection station, the Border Patrol 

Agent had "reasonable suspicion" to believe that respondent's car might contain aliens 

illegally in this country within the ambit of United Matey v. Brignoni-Ponce, supra. 

(3) The doctrine of collateral estoppel prevents respondent, who was convicted of entry 

without inspection under section 275 of the Immigration and Nationality Act, from 

relitigating the illegal entry in subsequent deportation proceedings. [Matter ofRina, 15 

I. & N. Dec. 346 adhered to.): 

CHARGE: 

Order: Act of 1952--Section 241(a)(2) [8 U.S.C. 1251(a)(2)].—Entry without inspection. 

ON BEHALF OF RESPONDENT! Leonard L. Finkel, Esquire 

515 Madison Avenue 

New york, New York 10022 

The respondent moves for reconsideration of our decision dated June 

11, 1975, in which we disznisSed his appeal from a decision by the 

immigration judge ordering his deportation to Italy on the charge eontained in the order to show eause. 1Oral argument and a stay of deportation have also been requested. The requests and the motion will be 

denied. 

Initially, counsel contends that reconsideration is warranted in light 

of the Supreme Court's decisions inAlmeida-Sanchez v. United States, 

1That decision is Matter of Rine, Interim Decision No. 2396 (BIA 1975). 

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Interim Decis:ion #2430 

413 U.S. 266 (:1973), and United States v. Brignani-P once, 422 U.S. 873, 

95 S. Ct. 2574 (1975). Both of these cases were decided long after the 

vehicle stop at issue in the present case took place in 1969. The Supreme 

Court has ruled that Almeida-Sanchez does not have retroactive effect. 

United States v. Peltier, 422 U.S. 531, 95 S. Ct. 2313 (1975); Bowen v. 

United States, 422 U.S. 916, 95 S. Ct. 2569 (1975). We are satisfied that 

the same rationale would be applied to the decision in United States v. 

Brignoni-Ponce, supra. Moreover, the vehicle stop and interrogation in 

the present case were proper even under the standards set forth in 

Almeida -Sanchez and Brignoni -Ponce. 

The record shows that on November 15, 1969, the respondent admittedly was returning to the United Staes from a trip to Canada. At about 

7:30 p.m. that evening, after darkness had fallen, a Border Patrol Agent 

in the vicinity of Cook's Line, New York, was alerted to the presence of 

the respondem's car by the tripping of an electronic device posted on 

Cook's Line Read, a lightly traveled back road leading from the Canadian border (Tr. p. 85). The agent proceeded to Earlville Road, an 

adjoining road accessible from the border only by way of Cook's Line 

Road, and parked his car (Tr. pp. 85-86, 107-08). There were no other 

cars in sight (Tr. p. 86). As the respondent's ear passed by, the agent 

noted that it was going slowly and that the driver was proceeding as if 

he was unsure of the area (Tr. p. 103). The agent pulled out behind the 

vehicle and noted that there were several people in the vehicle and that 

the license plate did not have the local county prefix (Tr. p. 88). The 

agent also testified that the road very infrequently was traveled by cars 

other than those of people who lived there (Tr. p. 88). 

The respondent's car passed at least two signs giving directions to the 

nearest immigration inspection station (Tr. p. 105). It was not until the 

respondent's car had passed the second sign, and the last clear chance to 

proceed to the Lnspection station, that the ear was stopped by the agent 

(Tr. p. 106). The agent indicated that he would not have made the stop 

had the respondent's vehicle proceeded to the inspection station (Tr. p. 

106). He also indicated that an additional reason for waiting to stop the 

respondent's car was that he was outnumbered by the occupants of the 

car and that the Earlville Road would not have been a safe place to make 

a stop if there was any chance of a confrontation involving force (Tr. pp. 

90, 106). 

We believe that the foregoing facts would justify a finding that the 

stop occurred at the "functional equivalent" of the border within the 

scope of Almeida -Sanchez. In addition, although further justification 

would not be necessary at the "functional equivalent" of the border, the 

Border Patrol agent undoubtedly had a "reasonable suspicion" that the 

respondent's vehicle contained aliens who might be in the country 

illegally. See United States v. Brignons -P once, supra. Even assuming, 

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then, that the standards set forth in Almeid,a-Sanchez and BrignoniPonce had retroactive application, we find that those standards have 

been met in the present case. 

Secondly, counsel challenges our holding that the doctrine of collateral estoppel prevents the respondent, who was convicted of entry 

without inspection under section 275 of the Act, from relitigating the 

illegal entry issue in the present proceedings. In adhering to our previous decision, we have the following comments in response to counsel's 

arguments. 

(1) Counsel is incorrect in asserting that the term "entry" under the 

Immigration and Nationality Act has a different meaning for deportation as opposed to criminal purposes. Matter of Barragan-Garibay, 15 I. 

& N. Dec. 77 (BIA 1974). 

(2) Counsel's reliance upon Matter of Martinez-Lopez, 10 I. & N. Dec. 

409 (BIA 1962; A.G. 1964), is misplaced. In that case, the Attorney 

General agreed with the Board that there was no true identity of issues. 

Therefore, the Board's inquiry into the materiality of the respondent's 

misrepresentation was not foreclosed by his conviction for conspiring to 

violate the provisions of 18 U.S.C. 1001. 

(3) North Carolina v. Alford, 400 U.S. 25 (1970) cited by counsel, has 

no applicability to the present situation. 

(4) Counsel's citation of Rule 803(22) of the Federal Rules of Evidence 

is inappnsite. 2The Federal Rules of Evidence did not take effect until 

July 1, 1975, long after the respondent's deportation hearing was completed. Those rules, of course, have no binding effect in administrative 

deportation proceedings. More importantly, however, the commentary 

by the Advisory Committee on Rules of Evidence, the body that originally formulated the rules, clearly states that Rule 803(22) "does not 

deal with the substantive effect of the judgment as a bar or collateral 

estoppel." Commerce Clearing Home, Federal Rules of Evidence 122 

(February 1975). We adopt this view. 

Finally, we reiterate that we have made a thorough review of the 

entire record. We repeat our prior conclusion that, quite independently 

from any collateral estoppel effect of the judgment of conviction, on the 

• Rule 805. Hearsay Exceptions; Availability of Declarant Immaterial 

The following are not excluded by the hearsay rule, even though the declarant is 

available as a witness: 

(22) Judgment of previous conviction.—Evidence of a final judgment, entered after a 

trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person 

guilty of a crime punishable by death or imprisonment in excess of one year, to prove any 

fact essential to sustain the judgment, but not including, when offered by the Government 

in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect 

admissibility. 

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Interim Decision #2430 

record as a whole the respondent's deportability has been established by 

clear, convincing, and unequivocal evidence. 

We adhere to our decision of June 11, 1975. The respondent's motion 

will be denied, and his requests for oral argument and a stay of deportation also will be denied. 

ORDER: The motion to reconsider is denied, and the requests for 

oral argument and a stay of deportation also are denied. 

456