Interim Decision #2080 

MATTER OF TANG 

In Deportation Proceedings 

A-15363812 

Decided by Board April 22,1971 

Where respondent presented no competent legal evidence in support of his 

claim that the documents entered into evidence to establish his deportability were obtained in violation of his constitutional rights, such contention 

is dismissed since one who raises the claim must come forward with proof 

establishing a prima facie case of illegality before the Service will be 

called upon to assume the burden of justifying the manner in which it obtained its evidence. 

CHARGE: 

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2) 1—Nonimmigrant crewman—remained longer. 

ON BEHALF OF RESPONDENT: 

Peter Zimmerman, Esquire 

100 State Street 

Boston, Massachusetts 02109 

Counsel of record: 

Joseph F. O'Neil, Esquire 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

Respondent appeals from the special inquiry officer's order finding him deportable and granting him voluntary departure. The 

appeal will be dismissed. 

Respondent admitted that he is an alien, but he refused to testify as to his right to be in the United States. He did not claim 

privilege. The special inquiry officer found that respondent was 

an alien, that he had been admitted in June 1969 as a nonimmigrant crewman, that he had been authorized to remain for not 

longer than 29 days and that he had remained without authority. 

These findings are based on the admission of alienage respondent 

made at the deportation hearing and on information found in the 

respondent's seaman's identity book, his seaman's discharge book, 

his identity card and the landing permit showing his arrival on 

June 26, 1969 at Los Angeles. The contents of the first three doe691 
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uments were read into the record (pp. 4, 5). The last document is 

an exhibit (Ex. 2) . These documents were entered in evidence 

over the objection of counsel who stated, "They were allegedly 

taken from the respondent in violation of his constitutional 

rights" (p. 4). No specifications in support of the claim have been 

given. Counsel contends that since he raised a question as to the 

legality of the evidence, the burden is upon the Service to come 

forward with proof establishing that the documents came into its 

possession in a manner which did not offend respondent's constitutional rights. 

We shall dismiss the contention because respondent has not established a prima facie case in support of the contention. He has 

presented no competent legal evidence in support of his claim. 

One who raises the claim 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. See Nardone v. United States, 308 U.S. 338 

(1939); Duran v. United States, 413 F.2d 596, 604 (9 Cir., 1969), 

cert. denied 396 U.S. 917 (1969); United States v. Lyon, 397 F.2d 

505 (7 Cir., 1968), cert. denied 393 U.S. 846 (1968); United 

States v. Garcia, 272 F. Supp. 286 (S.D. N.Y., 1967); Fed. Rules 

Cr. Proc., rule 41(e), 18 U.S.C. The reason for our rule one similar to that which prevails in criminal matters—is well stated in 

Garcia, supra. There the court said: 

. . . Experience shows that unless such serious charges are initiated upon 

he sworn statement of persons having personal knowledge of the facts, a 

Teat deal of time of the parties and the Court is frequently wasted upon 

Lnnecessary, expensive and protracted suppression hearings, all for the reaon that the attorney demanding suppression merely upon his own say-so 

ften discovers only at the hearing that he has been misled by unsworn repsentations of his clients, which they would be unwilling to swear to in an 

ffidavit, particularly if they were questioned closely by their counsel and 

arned of the consequences of perjury. 

It is proper to consider the documents presented by the Serve. The respondent does not deny that they relate to him. Their 

mtents reveal that they do in fact relate to him. They establish 

iat respondent is an alien who was admitted for a period not 

nger than 29 days, 8 .CFR 252.1(d), (e), (f). There is no claim 

J respondent that he has a legal right to be in the United States. 

Upon presenting evidence that the respondent is an alien, the 

?rvice may call upon him to testify and may use his testimony 

find that deportability is established, Laqui v. INS, 422 F.2d 

)7 (7 Cir., 1970). Where the respondent does not claim privilege 

id refuses to testify, his silence can give rise to an inference 

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that his testimony would support the Service charges, QuilodranBrau v. Holland, 232 F.2d 183 (3 Cir., 1956) . Here, it is proper 

to find that the respondent is an alien, that he was admitted temporarily, and that the period for which he was admitted has now 

expired. On the basis of these findings it is proper to conclude 

that respondent is in the United States illegally as charged. 

The Service burden of establishing deportability could also 

have been met by drawing on the statutory presumption of the illegality of the presence of the alien who has not justified his 

presence in the United States, Ah Chiu Pang v. INS, 368 F.2d 

637 (3 Cir., 1966), cert. denied 386 U.S. 1037; Vlisidis v. Holland, 

245 F.2d 812 (3 Cir., 1957) ; section 291 of the Act, 8 U.S.C. 

1361. We have not relied upon this presumption because it is unnecessary to do so. However, had it been necessary to do so, we 

think the presumption would have supported the charge. We believe that it does not merely require an alien to show that he entered lawfully; it goes further. It requires the person shown to be 

an alien to justify his presence in the United States. Our rule is 

drawn from Vlisidis v. Holland, supra. The case concerned aliens who were charged with having entered temporarily as alien 

crewmen and remaining illegally. They refused to answer questions about the circumstances of their presence in the United 

States. The court, after holding that there was adequate evidence 

for finding the aliens deportable, stated: 

. . . Actually, it was necessary to show only the single fact that the respondent was an alien, for, once that is proved, the legislative scheme requires the alien to justify his presence in the United States. 66 Stat. 234, 8 

U.S.C.A. §1361. Neither of the parties here attempted any such showing of 

lawful presence (p. 814). 

Respondent did not attempt to show a lawful presence here. In 

fact, he has failed to show the time, manner and place of his 

entry. We believe the presumption could have been relied upon. 

We find no support in this record for counsel's contention that 

respondent's request for representation was effectively denied. 

ORDER: The appeal is dismissed. 

Further ordered: Pursuant to the special inquiry officer's 

order, the respondent is permitted to depart from the United 

States voluntarily within 30 days from the date of this decision 

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 special inquiry officer's 

order. 

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