Interim Decision #2784 

MATTER OF TORO 

In Deportation Proceedings 

A-20704042 

Decided by Board February 27, 1980 

(1) To be admissible in deportation proceedings, evidence must be probative and its use 

fundamentally fair so as to not deprive respondents of due process of law. 

(2) The fact that given evidence resulted from a search and seizure in violation of fourth 

amendment rights will not of necessity result in a finding that use of the evidence is 

fundamentally unfair. 

(3) The circumstances surrounding an arrest and interrogation may In some cases 

render evidence inadmissible under the due process clause of the fifth amendment 

(4) With or without a voluntariness issue, cases may arise where the manner of acquisition of evidence is so egregious that to rely on the evidence would offend fifth 

amendment fundamental fairness requirements. 

(5) Where investigating officer apparently stopped and questioned the respondent in 

1974 solely because she appeared to be of Hispanic descent, consideration of her 

resulting voluntary admissions was not fundamentally unfair where the officer was 

acting in accordance with a. Service policy that was then held in good faith. 

CHARGE 

Order. Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Immigrant—no valid immigration document 

ON BEHALF OF RESPONDENT: Dennis M. Mukai, Esquire 

Popkin & Shamir, Inc. 

5670 Wilshire Blvd., Suite 1800 

Los Angeles, California 90036 

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

Opinion: Appleman, Board Wernher 

In a decision dated September 5, 1974, an immigration judge found 

the respondent deportable under section 241(a)(1) of the Immigration 

and Nationality Act, 8 U.S.C. 1251(a)(1), as an immigrant not in 

possession of a valid immigrant visa. A period of voluntary departure 

was granted to the respondent, in lieu of deportation. The respondent 

appealed from the finding of deportability. The appeal will be 

dismissed. 

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Interim Decision #2784 

At the deportation hearing conducted in this case, the respondent 

denied the factual allegations and the charge in the Order to Show 

Cause, and refused to testify as to her deportability. She stated that 

she would not testify because her fourth amendment right against 

illegal searches and seizures had been violated. In order to establish 

the respondent's deportability, the Immigration and Naturalization 

Service then offered a Form 1-213, "Record of Deportable Alien." This 

document was admitted into evidence over the objection of the respondent's counsel. 

The Form 1-213 contains admissions regarding the respondent's 

alienage and deportability. These admissions were made to a Service 

officer on August 9, 1974. The document indicates that the respondent 

had been apprehended at 8:00 a.m. on that same day, and that the 

report was made at 1:15 p.m. A Form 1-214 was also admitted into 

evidence, and indicates that at 1:00 p.m., the respondent was given the 

"Miranda" warnings in Spanish, except insofar as the warnings indicated a right to court-appointed counsel. However, the respondent 

refused to sign the Form 1-214. No other evidence of alienage or 

deportability was presented. 

- Both at the hearing and on appeal, the respondent contends%hat the 

Form 1-219 should have been suppressed because it was obtained as the 

result of an illegal stop and arrest. The respondent, through counsel, 

made an offer of proof to the effect that the immigration officers who 

arrested her lacked a reasonable suspicion of her alienage when they 

stopped her for questioning. It was alleged that the respondent was 

stopped just after she stepped off a bus in downtown Los Angeles, 

while she was wearing ordinary street clothes. It was then submitted 

that a Service automobile pulled up next to the respondent, an officer 

got out of the car, and asked the respondent for identification. There 

was no apparent reason for speaking to the respondent other than "her 

obvious Latin appearance." He proceeded to identify himself as a 

Service officer, and indicated that he did not know the respondent's 

name and was not looking for her specifically. He allegedly asked to see 

the respondent's purse, opened it, removed a Social Security card and 

pay stub, then put the respondent in his car. It was alleged that the 

officers then proceeded down the street, stopped and questioned two 

other women of Latin appearance, and also placed them in the car. The 

women were then taken to Immigration Service offices, where they 

were fingerprinted and again questioned, and where the information 

contained in the Form 1-213 was obtained. 

The respondent requested at the hearing that the immigration officer involved in this arrest be called as a witness in order to corroborate her version of events and to provide a foundation for the 

admission of the Form 1-213. The immigration judge recessed the 

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Interim Decision #2784 

hearing in order to ascertain whether the person who prepared the 

Form 1-213 was available to testify that day. When it was discovered 

that the officer was not immediately available, the immigration judge 

denied the respondent's request for production of the officer and admitted the Form 1-213. 

The immigration judge found the presence of the arresting officer 

unnecessary as he concluded that the respondent had not established 

any illegality concerning her arrest. In his decision he stated: 

The Form 1-213 indicates that the method of location was Area Control. It is apparent 

to me that cruising along a main artery of downtown Los Angeles would be the 

appropriate way in which to spot possible illegal aliens and I see no reason to continue 

this matter because of the unavailability of the Service investigator. 

The immigration judge concluded that section 287(a) of the Act 

authorized such encounters. 

Subsequent to the immigration judge's decision in this case, the 

Supreme Court rendered its decision in United States v. BrignoniPonce, 422 U.S. 873 (1975). That case held that, except at the border or 

its functional equivalAits, officers on roving patrols may stop vehicles 

only if they have specific, articulable facts, together with the rational 

inferences drawn from those facts, that reasonably warrant the suspicion that the vehicles contain aliens illegally in the United States. The 

Court stated: 

Even if [the officers] saw enough to think that the occupants were of Mexican descent, 

this factor alone would justify neither a reasonable belief that they were aliens, nor a 

reasonable belief that the car concealed other aliens who were illegally in the country. 

The Government had also contended in that case that "the public 

interest in enforcing conditions on legal alien entry justifieEd1 stopping 

persons who may be aliens for questioning about their citizenship and 

status." Brignoni-Ponce at 883. The Court, however, concluded: 

For the same reasons that the Fourth Amendment forbids stopping vehicles at 

random to inquire if they are carrying aliens who are illegally in the country, it also 

forbids stopping or detaining persons for questioning about their citizenship on less 

than a reasonable suspicion that they may be aliens. 

Brignoni-Pcmce at 884. Thus, it has now been held that persons may 

not be stopped and questioned on the street by immigration officers 

absent a reasonable suspicion that they are aliens. See Lee v. INS, 590 

F.2d 497 (3 Cir. 1979); Cordon de guano v. INS, 554 F.2d 944, 946 (9 Cir. 

1977); Illinois Migrant Council v. Pilliod, 548 F.2d 715 (7 Cir. 1977) 

(order entered upon hearing en bane), modifying, 540 F.2d 1062 (7 Cir. 

1976); Au Yi Lau v. INS, 445 F.2d 217 (D.C. Cir. 1971), cert. denied, 404 

U.S. 864 (1971). But see Marquez v. Kiley, 436 F. Supp. 100 (S.D.N.Y. 

197'7). 

On the record before us, we cannot find that the arresting officers 

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Interim Decision #2784 

had a reasonable suspicion that the respondent was an alien when she 

was first stopped. Absent contrary testimony, it would appear that the 

respondent was stopped solely because of her "Latin appearante." 

Accordingly, the present record reflects that the initial stop of the 

respondent was in violation of her fourth amendment rights. 

Respondent, through counsel, submits that the evidence establishing 

her deportability, which was acquired as a result of her apparently 

unlawful initial stop, must accordingly be suppressed under the fourth 

amendment exclusionary rule.' We do not agree. . 

To be admissible in deportation proceedings, evidence must be 

probative and its use fundamentally fair so as to not deprive 

respondents of due process of law as mandated by the fifth amendment. See Trias-Hernandez v. INS, 528 F.2d 366, 369 (9 Cir. 1975); 

Martin-Mendoza v. INS, 499 F.2d 918, 921 (9 Cir. 1974); Marlowe v. INS, 

457 F.2d 1314, 1315 (9 Cir. 1972); Navarrette -Navarette v. Landon, 223 

F.2d 234, 237 (9 Cir. 1955), cert. denied, 351 U.S. 911 (1956). We have 

concluded that evidence resulting from a search and seizure in violation of fourth amendment rights is not for that reason alone exclud= 

able from civil deportation proceedings. See Matter of Sandoval, Inter= 

im Decision 2725 (BIA 1979). Every fourth amendment violation will 

not of necessity result in a finding that the admission of resulting 

evidence is fundamentally unfair. The circumstances surrounding an 

arrest and interrogation, however, may in some cases render evidence 

inadmissible under the due process clause of the fifth amendment. See, 

for example, Matter of Garcia, Interim Decision 2778 (BIA 1980); 

Navia-Duran v. INS, 568 F.2d 803 (1 Cir. 1977); Bong Attu Choy v. INS, 

279 F.2d 642 (9 Cir: 1960) (involving involuntary statements). Mdreover, with or without a voluntariness issue, cases may arise in which 

the manner of seizing evidence is so egregious that to rely on it would 

offend the fifth amendment's due process requirement of fundamental 

fairness. See, for example, Ex parte Jackson, 263 F.110 (D. Mont. 1920). 

In the instant case, we assum.e that the arresting officers' conduct 

did not comport with fourth amendment requirements as clarified 

under present ease law. The incident in question, however, occurred in 

1974, before the Supreme Court's decision in United States v. BrignoniPonce, supra, and while the Government position (as argued before the 

Court in that case) was that immigration officers were vested with the 

' No claim was advanced below, nor facts alleged on appeal, that the respondent's 

subsequent statement was involuntary or otherwise inadmissible. The respondent's 

counsel, at page 13 of his brief on appeal, states without elaboration that the respondent 

"was intimidated into revealing some information on the 1-213." However, this allegation was never made at the hearing and, except for this brief statement, was not pursued 

on appeal. There is nothing in the record to indicate that the respondent wail in any way 

coerced into making her statement on August 9, 1974. 

94..q 
Interim Decision #2784 

authority under section 287(a) of the Act to make inquiries of the type 

involved here. Under these circumstances, where the investigating 

officers were acting in accordance with Service policy, where the Service position was apparently held in good faith and not rejected by the 

Supreme Court until nearly one year after the incident in question, and 

where there was no evidence offered or alleged that the respondent's 

admissions were either involuntary or otherwise affected by the circumstances of her arrest, we do not find that the admission into 

evidence of the Form 1-213 was fundamentally unfair. We make this 

finding assuming all of the facts alleged in respondent's offer of proof 

to be true. The appeal will accordingly be dismissed. 

The time for the respondent's original grant of voluntary departure 

has long since expired. In accordance with Matter of Ch,ouliaris,16 I&N 

Dec. 168 (BIA 1977), we will grant the respondent 30 days from the date 

of this order in which to voluntarily depart from the United States. 

• ORDER, The appeal is dismissed. 

FURTHER ORDER, The respondent shall be 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. In the event of failure so to depart, the respondent 

shall be deported as provided in the immigration judge's order. 

Irving A. Appleman, Member DISSENTING: 

I respectfully dissent. 

In the course of the hearing below, the respondent requested that 

the arresting officer be called as a witness in connection with the 

submission of a Form 1-213 into evidence. The immigration judge 

denied this request and admitted the Form 1 -213. His findings of 

alienage and deportability were predicated in large measure on the 

information contained in this form. 

As the majority notes, the decision below antedated United States v. 

Brigncmi-Ponce, 422 U.S. 873 (1975), which enunciated the rule of 

"reasonable suspicion of alienage." The immigration judge did not 

have the benefit of Brignoni-Ponce when he made his ruling with 

respect to the"witness. The so-called evidence about the "arrest" in this 

case comes solely from an offer or proof made by counsel for the 

respondent. The legality of the arrest was not put in issue through 

testimony, or even, minimally, by appropriate affidavits, see Matter of 

Geronimo, 13 I&N Dec. 680, 682 (BIA 1971); Matter of Tang, 13 I&N 

Dec. 691 (BIA 1971); Matter of Wong, 13 I&N Dec. 820 (BIA 

Notwithstanding the obvious inadequacy of this record the majority 

' Although the immigration judge approved the offer as made, and the Service did not 

object. 

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Interim Decision #2784 

has found that the respondent was stopped solely because of her "Latin 

appearance." On the most tenuous of evidentiary bases it has found 

that there was a fourth amendment violation. Under the rule laid down 

in Matter of Sandoval, Interim Decision 2725 (BIA 1979), the illegality 

of the arrest would be irrelevant insofar as the admissibility of the I213 was concerned. However, for whatever reason, the majority has 

not applied a different standard, namely, that even though the 

evidence would be admissible under Matter of Sandoval, nevertheless, 

before it can be used, there must be "fundamental fairness" in the 

manner in which it was obtained, so as not to offend fifth amendment 

due process requirements of a fair hearing in its use. 

The majority is now attempting to hedge its position in Matter of 

Sandoval. Outside of the exclusionary rule, the relationship between 

the manner in which evidence was obtained, and the "fairness" of the 

hearing, would seem to be a very murky area indeed. In addition to 

inquiry, where justified, into the circumstances of an arrest, there 

must also be inquiry whether or not there is a breech of "fundamental 

fairness" in admitting the evidence. Complication is laid upon complication. As I expressed in my dissent in the Matter of Sandoval, I believe 

the exclusionary rule is applicable in these proceedings and that 

evidence which has been obtained in the violation of the fourth amendment is inadmissible per se. Nothing in the present decision convinces 

me to change this position. It is laudable that the majority recognizes 

the dangerous potential of Matter of Sandoval and seeks to dull its 

edge. It is also unnecessary, if the exclusionary rule is held applicable. 

Since the decision of the inunigration judge preceded United States 

v. Brignoni-Ponee, supra, this case should be remanded and reopened 

for consideration in the light of that holding. At the reopened hearing, 

for reasons analogous to those set forth in my separate opinion in 

Sandoval, the arresting officer should testify, the Form 1-213 should be 

authenticated and a ruling made as to its admissibility, and the record 

should be developed appropriately. 

In the light of all the foregoing, I would remand. 

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Interim Decision #2785 

MATTER OF WADAS 

In Exclusion Proceedings 

A-24000645 

Decided by Board March 14, 1980 

(I) In exclusion proceedings, under S C.F.R. 2362(b), the immigration judge has the 

authority to regulate the course of the hearing, and where a determination of venue is 

essential to such regulation, he may in certain situations hear a motion to change 

venue without infringing on the general parole jurisdiction of the District Director. 

(2) Where an applicant for admission has been paroled into the United States by the 

District Director and has been granted permission to continue his journey outside the 

district, his motion to the immigration judge in exclusion proceedings to change venue 

is subject to considerations similar to those present in venue motions in deportation 

proceedings. 

(a) Where the applicant for admission was paroled into the United States. allowed to 

journey outside New York, the district of the port of entry, where he had never 

resided, and where the possible excludable acts had occurred in, and possible witnesses 

were located in Massachusetts, an interpreter is required, and two previous hearings 

failed to resolve the applicant's excludability, it was appropriate for the immigration 

judge to hear a motion to change venue to Boston. 

EXCLUDABLE: 

Order. Act of 1952 — Section 212(a)(20) [8 U.S.C. 1182(a)(20)] — Immigrant — not in 

possession of a valid visa 

Q14 IIEHALF OF APPLICANT: Pro se 

Bin Ifilhollan, Chairman; Maniatis, Applernan, Maguire, and Farb, Board Members 

The Service has filed an interlocutory appeal from a decision of 

Immigration Judge John Ruggiero, granting a change in venue from 

New York to Boston. It is the Service's contention that the immigration judge lacks jurisdiction to change venue in exclusion proceedings. 

Although we do not normally hear appeals from interlocutory decisions, in this case we will make an exception because the issue to be 

considered is important, and unlikely to be resolved in a more satisfactory context. Cf. Matter of Sacco, 15 I&N Dec. 109 (BIA 1974); Matter of 

Fong, 14 I&N Dec. 670 (BIA 1974). The appeal will be dismissed. 

At the exclusion hearing before the immigration judge on July 19, 

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Interim Decision #2785 

1979, there was testimony presented by the applicant for admission to 

the effect that the designation of New York as the location of the 

exclusion hearing was inappropriate. The applicant had applied for 

admission at New York, had been paroled into the United States by the 

District Director, and had been granted permission to continue his 

journey outside the New York district of the Service. Based on the 

information adduced at the hearing, the immigration judge concluded 

that the exclusion hearing would more properly be heard in Boston, 

and he ordered the change in venue to that city. 

The Service on appeal contends that the immigration judge has no 

jurisdiction to change the venue in exclusion proceedings where, as 

here, the applicant has been paroled into the United States and allowed to travel outside the district in which he made his application 

for admission. It cites section 212(d)(5) for the proposition that the 

Attorney General may parole aliens into the. United States under such 

conditions as he may prescribe, and that parole is not an admission for 

purposes of the immigration laws. The Service also cites 8 C.F.R. 

212.5(a) to show that the discretion granted to the Attorney General 

under section 212(d)(5) of the Act has been delegated to the District 

Director in charge of a port of entry. In addition, the Service relies on 

Matter of Lepofskv, 14 I&N Dee_ 71R (IBA 1974), to establish its 

contention that only the District Director may parole aliens into the 

United States. Lepofsky involved a case where the immigration judge 

allowed two applicants for admission to withdraw their application for 

admission and granted them conditional "permission" to remain in the 

United States for one month. The Board held that this order was an 

infringement on the parole power of the District Director. 

Finally, the Service cites Canceiro v. Marks, 860 F.Supp. 454 (S.D. 

N.Y. 1973) for the authority that the Board has consistently held that 

the District Director alone may parole aliens into the United States. 

C yneeiro concerned a Cuban refugee refused parole by the District 

Director who brought habeas corpus proceedings in the District Court. 

It was noted by the court that the Board had adopted the position that 

the discretion to parole lay with the District Director. 

The Service concedes that immigration judges in deportation 

proceedings do have the authority to decide changes in venue. Matter 

ofSeren, Interim Decision 2474 (BIA 1976). It contends, though, that 

Semi/ is distinguishable on at least two grounds. The first is that the 

immigration judge in deportation proceedings has jurisdiction over 

questions involving procedural due process, and that venue is such a 

question. Secondly, it asserts that an alien in deportation proceedings 

has made an entry which places him within the normal Constitutional 

protections, while an applicant for admission who has been paroled 

into the United States "has no legal immigration status". 

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Interim Decision #2785 

The last point that the Service makes is that even if the immigration 

judge had authority to change venue, the applicant had not established 

that this change was necessary. 

After considering the points raised by the Service, we have concluded that change of venue in exclusion proceedings, where the applicant has be en paroled in and allowed to travel outside the district 

where he applied for admission, is governed by considerations similar 

to those present in deportation proceedings. Although the situation 

may appear to the Service to present a conflict between the parole 

powers of the District Director, and the jurisdiction which vests in the 

immigration judge at the point where the exclusion hearing begins, we 

view the situation in some what different terms. In a deportation 

proceeding, the immigration judge has the jurisdiction to consider 

venue because "8 C.F.R. 242.8 grants the immigration judge the power 

to take such action as "may be appropriate to the disposition of the 

case". Matter ofSeren, supra. We see no reason that the same considerations should not hold true in this exclusion proceeding. 8 C.F.R. 236.1, 

in discussing exclusion proceedings, states in almost identical words 

that: 

"Subject to any specific limitation prescribed by the Act and this chapter, immigration judges shall also exercise the discretion and authority conferred upon the Attorney General by the Act as is appropriate and necessary for the disposition of such 

cases." 

In addition, 8 C.F.R. 236.2 delineates the rights and procedures to be 

followed in exclusion proceedings in terms very similar to those in 

deportation proceedings. This indicates that the distinction that the 

Service wishes to draw between deportation and exclusion proceedings 

on procedural grounds is not well founded. It also shows that the 

asserted distinction between Constitutional rights in deportation 

proceedings as opposed to those accorded in exclusion proceedings, is 

in fact almost irrelevant. Whatever differences in treatment may be 

justified on Constitutional grounds, the regulations provide protections to the aliens which are quite similar. 

In addition, as a matter of practical consideration, the immigration 

judge is in a good position to hear arguments on the issue of venue and 

determine whether or not a hearing could better be conducted in a 

different Service district. The exclusion hearing would provide a full 

opportunity for all sides of the matter to be heard, and the issue could 

be promptly resolved. 

We do not find this procedure to infringe on the authority of the 

District Director to set the conditions for parole. Unlike Lepofsky, 

supra, where there was no express or implied authority for the immigration judge to find an alien excludable and then allow him to 

remain, a change in venue is a natural adjunct of the immigration 

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Interim Decision #2785 

judge's authority to conduct exclusion hearings under 8 C.F.R. 236.1. 

Such jurisdiction does not affect the District Director's jurisdiction to 

set parole, or the conditions to be met by the parolee. It also does not 

affect the District Director's authority to detain an applicant for 

admission; nor does it in fringe on his authority to limit the applicant's 

enlargement on parole to the vicinity of the port of entry. Here, the 

applicant was paroled into the United States and allowed to travel 

outside the district of the port of entry. In such a case, where it appears 

with good reason that another venue should be designated after the 

hearing commences, the immigration judge has the authority to hear a 

motion to change venue, weigh the factors involved, and to make a new 

designation if he considers it necessary. This procedure will enable 

him to "regulate the course of the hearing" as provided in 8 C.F.R. 

236.2(b). 

In this case, the District Director designated New York as the place 

of the hearing, and he contends that a change in venue is not justified. 

The transcript shows that the applicant has never resided in New 

York. It also indicates that the excludable acts occurred in, and the 

possible witnesses are located in Massachusetts. In addition, the applicant requires an interpreter, and of which there have already been two, 

with no resolution of the charge of excludability. We agree in these 

circumstances that the immigration judge properly found that he had 

authority to consider the question of venue once the hearing had 

commenced, and that a change in venue was appropriate in the circumstances. The appeal is accordingly dismissed. 

ORDER: The appeal is dismissed. 

349