Interim Decision #2187 

MATTER OF TSANG 

In Deportation. Proceedings 

A-15999353 

Decided by Board February 16, 1973 

(1) Where an alien presented no evidence in support of his motion to suppress on 

the claim that he had been illegally arrested and that the documents entered 

into evidence to establish his deportability were obtained as a result of the 

illegal arrest, his motion was properly denied by the special inquiry officer for 

lack of justification since on a motion to suppress he has the burden of 

establishing prima facie that the evidence was unlawfully obtained. 

(2) An alien's refusal to testify regarding his deportability on a claim of selfincrimination is not a factor which should weigh against the exercise of 

discretion (voluntary departure, in the instant ease) in his favor. However, 

merely because relief may not be denied in the exercise of discretion on the 

basis of a self-incrimination claim does not mean that it may not be denied in 

the exercise of discretion on some other basis. 

CHARGE: 

Order: Act of 1952—Section 241(aX2) [8 U.S.C. 1251(a)(2)1—Nonimmigrant 

crewman—remained longer. 

ON BEHALF OF RESPONDENT: 

Peter Zimmerman, Esquire 

100 State Street 

Roston, Massachusetts 02109 

Attorney of Record: 

Joseph F. O'Neil, Esquire 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

The respondent appeals from an order of deportation entered by 

the special inquiry officer. The appeal will be dismissed. 

The record relates to a male alien of Chinese nationality, 45 

years of age. He entered the United States as a nonimmigrant 

crewman on September 23, 1968 and deserted his ship at Norfolk, 

Virginia on or about October 10, 1968. 

Respondent refused to testify regarding his deportability at the 

deportation hearing, invoking the privilege against self-incrimination in the Fifth Amendment to the Constitution. He did testify on 

behalf of his application for voluntary departure. 

As evidence of deportability, his seaman's discharge book was 

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read into evidence as was his Hong Kong seaman's identity book. 

Both show his place of birth as China. Also admitted into evidence 

was a certified copy of the arrival-departure record of the crew of 

the M/V "Ocean Splendour" which shows respondent's arrival with 

and desertion from that ship. 

The respondent moved to suppress the introduction of these 

documents as eviaence on the ground that he had been illegally 

arrested and that the documents were obtained as a result of the 

illegal arrest. The respondent submitted no evidence tending to 

establish that his arrest was illegal or that any evidence was 

unlawfully obtained from him. 

On a motion to suppress the defendant has the burden of establishing that the 

evidence was unlawfully obtained, United States v. Lyon, 397 F.2d 505 (CA. 7, 

1968). 

See also Nardone v. United States, 308 U.S. 338 (1939); United 

States v. Garcia; 272 F. Supp. 286 (S.D.N.Y., 1967). This rule, which 

is applied in criminal cases, has been adopted for use in deportation hearings, Matter of Tang, 13 I. & N. Dec 691 (B IA, 1971). 

Therefore,the special inquiry officer correctly denied the respondent's motion to suppress on the ground that the respondent had 

presented no justification for his motion. 

Furthermore, there is no showing here that any of the documents introduced was obtained either directly or indirectly as a 

result of the respondent's arrest. Those particular documents 

would normally be independently in the possession of the Immigration, Service. Seaman's books are retained by the carrier and 

sent to the Immigration Service upon the desertion of a seaman to 

whom they relate. Arrival and departure lists are official records 

given to the Immigration and Naturalization Service in the 

ordinary course of business by carriers. Thus, competent evidence 

which was in possession of the Service, independently of respondent's apprehension, establishes that Hon Kwan Tsang, a Chinese 

national, was admitted to the United States as a crewman and 

deserted. The documents introduced constitute clear, convincing 

and unequivocal evidence of deportability. We do not draw any 

inference from respondent's silence. 

The special inquiry officer denied voluntary departure as a 

matter of discretion because respondent, by asserting the privilege 

against self-incrimination and consequently refusing to testify in 

regard to deportability, had put the Immigration and Naturalization Service to additional time, trouble and expense in securing 

evidence of deportability. The cases have held, however, that 

adverse action may not be based on silence under a self-incrimination claim; otherwise the prospect of adverse action would cut 

down on the privilege by making its assertion costly, Spevack v. 

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385 U.S. 511 (1967), Griffin v. Calif, 380 U.S. 609 (1965). 

Furthermore, the regulations by implication recognize that an 

alien who refuses to testify on issues involving deportability may 

nevertheless be granted voluntary departure, 8 CFR 242.17(d). 

Thus, an alien has the right to refuse to testify with regard to the 

matter of his deportability without thereby forfeiting his opportunity to receive voluntary departure. 

Of course, merely because relief may not be denied in the 

exercise of discretion on the basis of a self-incrimination claim does 

not mean that it may not be denied in the exercise of discretion on 

some other basis. The alien has the burden to establish eligibility 

for voluntary departure, both that he is statutorily eligible and 

that he merits the favorable exercise of discretion. The statutory 

requirement is five years of good moral character, section 244(e). 

The regulations specify the requirement that the alien establish 

that he is willing, and has the immediate means with which, to 

depart promptly, 8 CFR 244.1. 

Whether discretion should be exercised in favor of a particular 

alien depends upon the facts of the individual case. In Order to 

achieve a measure of uniformity in cases involving applications for 

voluntary departure by crewmen, this Board has previously set 

forth certain guide lines, Matter of M—, 4 I. & N. Dec. 626 (BIA, 

1952). Inquiry should be made whether the alien was a bona fide 

crewman at the time of entry as against one who intended to stay 

permanently and used the crewman status merely as a means to 

effect entry. Because it is difficult to determine whether a particular alien- was a bona fide crewman or not, we held that a 

respondent should usually have been a crewman for at least one 

year before being granted voluntary departure, Matter of M—, 

supra. If it is clear that at the time of entry a respondent intended 

to stay permanently in the United States, normally voluntary 

departure should be denied as a matter of discretion, with an 

exception in the case of an alien who has served as a crewman for 

many years. If an alien crewman has been previously granted 

voluntary departure, whether he departed pursuant thereto or 

failed to avail himself of the privilege, we have held that such is an 

adverse factor militating against another grant of voluntary 

departure. 

We wish to emphasize that while these guide lines should be 

considered they do not set forth an invariable rule, Matter of T—, 5 

I. & N. Dec. 736 (B IA, 1954), and they do not relieve the special 

inquiry officer from his duty of exercising the discretion which is 

entrusted to him. He should consider all the relevant factors 

present in the ease before him and base his decision thereon 

accordingly. 

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This record establishes that at the time of entry to the United 

States, respondent had been a crewman for about eleven years 

(Tr. of hearing, p. 5). Eleven years is a substantial length of time. 

The respondent has never previously violated our immigration 

laws. This is his first request for voluntary departure. He has the 

ability to depart at his own expense and will depart within the 

time allotted, according to his testimony. We find that respondent 

merits voluntary departure. We do not consider his refusal to 

testify regarding his deportability as a factor which should weigh 

against the exercise of discretion in his favor. 

ORDER: The respondent is granted voluntary departure from 

the United States without expense to the Government, to any 

country of his choice, within such period of time, in any event not 

less than 30 days, and under such conditions as the officer-incharge of the District deems appropriate. 

FURTHER ORDER:If the respondent does not depart from the 

United States in accordance with the foregoing, he shall be 

deported to Hong Kong on the charge contained in the order to 

show cause. 

FURTHER ORDER:If the aforenamed country declines to accept the respondent into its territory or fails to advise the Attorney General within three months following original inquiry 

whether it will or will not accept the respondent into its territory, 

the respondent shall be deported to the Republic of China on 

Formosa. 

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