Interim Decision #2536 

MATTER OF GONZALEZ 

In Deportation Proceedings 

A-20997563 

Decided by Board October .12, 1976 

(1) In this proceeding respondent refused to testify except to give his name, and the 

Service introduced a Form 1-130 (Petition to Classify Status of Alien Relative) which 

had been submitted on behalf of respondent by his wife. The contents of the form and 

accompanying documents were read into the record and the respondent's wife was 

called to testify. 

(2) The application and documents were admissible because the name thereon was identical with the name of the respondent. Where respondent stood mute at hearing, it was 

proper for the immigration judge to permit the wife's testimony on the Form 1-130 

application because the wife merely identified the 1-130 application and because the 

application and documents may stand alone as evidence even without such identification. 

(a) Argument of respondent's counsel that the hearings were improper because the arrest 

was illegal and that the evidence adduced at hearing should be suppressed is rejected 

where the only evidence introduced was the Form 1-130 and documents submitted 

voluntarily prior to respondent's arrest, and the wife's Identifying testimony. Documents in the prior possession of the Service cannot be tainted by any illegality in a 

subsequent arrest. 

(4) While the burden to establish alienage to establish deportation proceedings is upon the 

Government, a person born abroad is presumed to be an alien and must go forward with 

the evidence to establish United States citizenship or a legal right to be in the United 

States under section 291 of the Immigration and Nationality Act. By his silence, 

respondent failed to meet his burden to show the manner of his entry and the presumption arises that he is in the United States in violation of law. Absent evidence to negate 

that presumption, the alien is deemed to be in this country in violation of law and the 

burden of proof requirements to show deportability by clear, convincing and unequivocal evidence are met. 

CEARGE: 

Orden Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entered without inspection 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Laurier B. McDonald, Esquire Richard M. Casillas, Esquire 

P. O. Drawer 54 Trial Attorney 

Edinburg, Texas 78539 

This is an appeal from the immigration judge's decision of April 18, 

1075. The immigration judge refused to terminate the proceedings and 

found the respondent deportable_ The appeal will be dismissed. 

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Interim Decision #2536 

The record relates to a married male alien, a native and citizen of 

Mexico, who is 24 years of age. He is charged with having entered the 

United States without inspection near Hidalgo, Texas, on or about 

February 15, 1975. 

The respondent moved to quash the Order to Show Cause on the basis 

that the respondent was arrested without a warrant and that therefore 

the proceedings are illegal. His motion was denied. He also requested 

that certain witnesses be subpoenaed. His request for subpoenas was 

denied. 

The respondent refused to testify at the hearing, except to give his 

name; he cited the privilege against self-incrimination under the Fifth 

Amendment to the United States Constitution. The Service introduced 

a Form 1-130 [Petition to Classify Status of Alien Relative] which had 

been submitted on behalf of the respondent by his wife. The contents of 

the form and accompanying documents were read into the record, and 

the respondent's wife was called to testify. The respondent's birth 

certificate, which was one of the documents, indicated birth in Mexico. 

Counsel objected to the wife's testimony on the ground that spouses 

cannot be compelled to testify against one another. The objection was 

overruled. In her testimony, the respondent's wife merely identified the 

1-130. The Service rested. The immigration judge, relying upon section 

291, found that the respondent was deportable. Section 291 provides 

that 

In any deportation proceeding tinder chapter 5 against any person, the burden of proof 

shall be upon such person to show the time, place and manner of his entry into the 

United States . . . If such burden of proof is not sustained, such person shall be 

presumed to be in the United States in violation of law. 

Upon appeal, counsel renews his arguments raised below. He claims 

that the proceedings were defective and should have been terminated, 

because, he claims, the respondent was arrested -without a warrant. 

Exhibit 1 is labelled: Order to Show Cause and Warrant for Arrest of 

Alien. There is nothing in the record, and nothing has been offered, 

which supports counsel's assertion that a warrant was not obtained 

prior to the arrest of the respondent. 

Complaint is made that subpoenas were not granted for various 

witnesses. One of the individuals for whom a subpoena was sought was 

present in the anteroom and was not called as a witness by either side. 

The immigration judge ruled correctly that no subpoena was necessary 

for that witness. There is no showing that the testimony of other 

individuals for whom subpoenas were sought was necessary either. 

Counsel stated that he wished to question them concerning whether the 

respondent was arrested without a warrant. He does not claim that 

their testimony would support his assertion that no warrant was ob45 
Interim Decision #2536 

tamed. The immigration judge properly refused counsel's request for 

subpoenas. It appears that counsel wished to go on a fishing expedition 

in his questioning; there is no showing that the testimony of the witnesses requested was necessary in these proceedings. 

One who raises a question concerning-the legality of the evidence 

must come forward with proof establishing a prima facie case before the 

Service will be called upon to assume the burden of justifying the 

manner in which it obtained its evidence, Matter of Tang, 13 I. & N. 691 

(BIA 1971). Statements in a motion for suppression must be specific and 

detailed, based on personal knowledge; they must set forth a prima fade 

ease, Matter of Wong, 13 I. & N. 822 (BIA 1971). Here, no statement 

has been presented which establishes a prima facie case of any illegality. 

Counsel has not actually moved to suppress evidence acquired in 

connection with the arrest. He admitted at the hearing that the evidence in this record was not obtained as a result of the arrest, (Tr. 27 & 

28). He argues, rather, that the hearings were improper, because the 

arrest was illegal and that, therefore, all evidence adduced at the hearing 

should be suppressed. However, evidence in the prior possession of the 

Service cannot be said to be tainted by any illegality connected with a 

subsequent arrest, Matter of Y au, Interim Decision 2272 (BIA 1974), 

Matter of Wong, supra. In order to apply the exclusionary rule, there 

must be a claim that tainted evidence was, or would be, introduced into 

the record. Here the sole evidence introduced was the Form I--120 and 

the testimony of the respondent's wife identifying that form. The 1-130 

had been voluntarily submitted by the parties prior to the respondent's 

arrest. It was not in any way tainted by any illegality concerning the 

arrest. 

Counsel's contention that the proceedings should be terminated because they are tainted by the claimed illegal arrest is also without merit. 

Even if an alien's arrest were technically defective, subsequent deportation proceedings, otherwise lawful, would not thereby be vitiated, 

U.S. ex rel. Bilokumsky v. Tad, 263 U.S. 149 (1923); Avila-Gallegos v. 

INS, 525 F.2d 666 (2 Cir. 1975); Guzman-Flores v_ INS, 496 F.2d 1245 (7 

Cir. 1974); Huerta-Cabrera v. INS, 466 F.. 2d 759 (7 Cir. 1972); La Franca 

-v. INS, 413 F.2d 686 (2 Gin 1969); Matter of Li Interim Decision 2451 

(BIA 1975). 

Counsel argues that the wife's testimony should have been excluded 

because it violates the husband-wife privilege, and that the failure to 

exclude it rendered the proceedings defective. The wife, by her testimony, did no more than to authenticate her own application. Her 

testimony is not essential, in any event, and it may be entirely disregarded, for the Form 1-130 and accompanying documents may stand 

alone as evidence. Even without identification by the maker, the application and accompanying documents are admissible, for there is identity 

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Interim Decision #2536 

of name with the name of the respondent, Vlisidis v. Holland, 245 F.2d 

812 (3 Cir. 1957). 

The birth certificate accompanying the Form 1-130 indicates that the 

respondent was born abroad. One born abroad is presumed to be an 

alien. U.S. ex rel. Rongetti v. Neelly, 207 F.2d 281-284 (7 Cir. 1953); 

Matter of Pvnco, Interim Decision 2826 (BIA 1974); Matter of 

Tijerina-Villarreal, 13 I. & N. Dec. 327 (BIA 1969); Matter of A—M—, 

7 I. &. N. Dec. 332 (BIA 1956). While the burden to establish alienage in 

a deportation proceeding is upon the Government, a person born abroad 

is presumed to be an alien and must go forward with the evidence to 

establish any claim to United States citizenship, Matter of TijerinaVillarreal, supra. 

The respondent has not advanced a claim to United States citizenship. 

He has not claimed any legal right to be in the United States. Once it is 

established that the subject of a deportation proceeding is an alien, 

section 291 of the Act requires that person to justify his presence in the 

United States, see AU v. Haff, 114 F.2d 369 (9 Cir. 1940); Bhagat Singh 

v. McGrath,104 F.2d 122 (9 Cir. 1939), cert. denied Bhagat Singh v. 

Haff, 308 U.S. 629 (1940); Vlisidis v. Holland, 150 F. Supp. 678 (ED Pa 

1957); Matter of Fereira, Interim Decision 2251 (BIA 1973). The respondent by his silence cannot avoid the burden by resting upon the 

Fifth Amendment, De Lucia v. Flagg, 297 F.2d 58 (7 Cir. 1962), cert. 

denied 369 U.S. 837 (1962) Vlisidis v. Holland, supra. [245 F.2t1]; 

Gonsalves-Rosa v. Shaughnessy, 151 F. Supp. 906 (SD NY 1957); 

Viisdis v. Holland, supra. [150 F. Supp.]. He has not been prejudiced in 

any way because of his invocation of the Fifth Amendment. The fact of 

alienage was established separately. No inference need be drawn from 

his invocation of that privilege. We find simply that by his silence he has 

not met his burden to show the manner of his entry, and that the 

presumption of section 291—that he is in the United States in violation of 

law—arises. In the absence of any evidence to negate the presumption, 

the alien is deemed to be here in violation of law, and the burden of proof 

requirements set forth in'VVoodby v. INS, 285 U.S. 276 (1966) have been 

met, see Matter of Fereira, supra. 

ORDER: The appeal is dismissed. 

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