Interim Decision #2582 

MATTER OF CACHIGUANGO AND TORRES 

In Deportation Proceedings 

A-21072898 

A-21073899 

Decided by Board May 16, 1977 

(1) Respondents who are husband and wife were questioned by a Service officer as they 

disembarked from a domestic flight at Kennedy International Airport. They were 

subsequently charged with entering the United States without inspection and found 

deportable under section 241(a)(2) of the Immigration and Nationality Act. 

(2) A stop and interrogation by an immigration officer at a location such as this, which is 

not the functional equivalent of the border must be based upon a reasonable belief 

derived from specific articulable facts that the person is an alien, rather than the mere 

fact of the person's foreign heritage. See Sec. 287(a)(1) of the Act, and United States v. 

Brignoni-Ponce, 422 U.S. 873 (1975). In this case respondents became alarmed and 

sought to avoid coming into proximity with the immigration officer. This furtive response in the presence of the immigration officer and the attempt to flee, taken together 

with the foreign appearance of respondents justified the officer's interrogation of them. 

(3) The attempt of respondents to flee and evade the officer combined with the evidence of 

respondents' alienage and lack of immigration registration documents constituted justification for respondents' arrest without warrant under section 287(a)(2) of the Act. 

(4) Admission and affidavit by female respondent that she and her husband had paid to be 

smuggled into the United States and entered without inspection, taken along with 

testimony of the immigration officer at the hearing as to their identity, established 

respondente deportability by clear, convincing and unequivocal evidence. 

CHARGE: 

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

ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE: 

Jules E. Coven, Esquire Mary Jo Grotenrath 

Lebenkoff & Coven Appellate Trial Attorney 

One East 42nd Street 

New York, New York 10017 

In a decision dated August 31, 1976, the immigration judge found the 

respondents deportable under section 241(a)(2) of the Immigration and 

Nationality Act as aliens who had entered the United States without 

inspection, and granted them the privilege of voluntary departure. The 

respondents appeal from the finding of deportability, alleging that it 

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was based upon evidence obtained illegally by Service officers. The 

appeal will be dismissed. 

The respondents, husband and wife, are natives and citizens of 

Ecuador. They were questioned by Service officers as they disembarked 

from a domestic flight at Kennedy Airport in New York City, New York 

on February 12, 1976. The statements made by the respondents at this 

time led to their arrest. In the respective Orders to Show Cause, served 

on the respondents after their transportation to Service offices, they 

were charged with entering the United States without inspection. 

At the hearing before the immigration. judge, the respondents refused 

to identify themselves and stood mute, claiming a privilege under the 

Fifth Amendment. The Government called as a witness the Service 

investigator who had arrested the respondents. This investigator identified the respondents as the aliens he had questioned and arrested. He 

farther identified the female respondent as the person who signed an 

affidavit after her arrest admitting that she and the male respondent 

had been smuggled into the United States. The respondents' counsel 

objected to the introdUction of any evidence stemming from the interrogation and subsequent arrest, claiming that the initial confrontation was 

illegal, and that the statements of the respondents, as products of that 

confrontation, should be excluded from consideration by the immigration judge. The immigration judge overruled all objections to this 

evidence. Ile also refused to allow the respondents' attorney to crossexamine the Service investigator as to the reasons for his presence at 

the arrival point of a domestic flight, or the manner in which other aliens 

than the respondents were singled out for interrogation. On appeal, the 

respondents' counsel renews his objections to the introduction and admission of the statements made after the detention and subsequent 

arrest of the respondents. 

Our survey of the record convinces 115 that the interrogation of the 

respondents by the Service officer was proper. The officer testified that 

while displaying his Service badge to other disembarking passengers, 

h e noticed that the respondents became visibly alarmed and sought to 

avoid coming into proximity with him. He further testified that the 

general appearance of the respondents was foreign. . 

Under section 287(a)(1) of, the Immigration and Nationality Act, a 

service investigator has the power to interrogate without a warrant any 

psersun believed to be an alien as to his right to be or remain in the 

United States. With respect to interrogations which take place at locations, as in this case, which are not the functional equivalents of a 

hoarder, the Supreme Court has imposed the requirement that a stop and 

interrogation be based upon a reasonable belief derived from specific 

airtieulable facts, other than the mere fact of foreign heritage, that the 

person is an alien. United States v. Brignoni -Ponce, 422 U.S. 8'73 

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(1975). A furtive response to the presence of an immigration officer, and 

an attempt to flee from the vicinity of that officer, constitute articulable 

facts which, taken together with the foreign appearance of a person, 

might reasonably give rise to a suspicion of alienage. Au Yi Lau v. INS, 

445 F.2d 217 (D.C. Cir. 1971). The interrogation of the respondents, 

after they were observed trying to evade the immigration inspector, 

was therefore not improper. 

At the hearing, the respondents' counsel sought to question the investigator as to the interrogation of other persons disembarking from the 

flight and as to his operations generally at Kennedy Airport. The immigration judge refused to permit this cross-examination on the ground 

that the respondents would not be allowed to make out a prima facie 

case of illegal Government activity by the testimony of a Government 

witness. Without addressing the correctness of the immigration judge's 

reasoning, see Matter of Tsang, 14 I. & N. Dec. 294 (BIA 1973); Matter 

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

Dec. 691 (BIA 1971), we conclude upon an examination of the record 

that such questioning was properly excluded as immaterial to the issue 

of the respondents' interrogation. Since the interrogation of the respondents was proper upon a reasonable belief of alienage based on articulable facts, the reasons for the presence of the Service investigators at the 

airport, and their activities with respect to other persons, are immaterial. 

The interrogation of the respondents at the airport revealed that (1) 

the male respondent was a citizen of Ecuador, (2) he had no evidence of 

alien registration, and (3) the female respondent was his wife. The 

respondents were then arrested. These facts, combined with the attempt to flee, were sufficient grounds upon which to base a justifiable 

arrest without warrant under section 287(a)(2) of the Act_ After transportation to Service offices, the female respondent, after being advised 

of her rights under 8 C.F.R. 287.3, stated that she and her husband had 

entered the United States without inspection, by paying an unnamed 

individual to smuggle them across the border into California. The 

female respondent also signed an affidavit (Form 1-214) to this effect. 

This form was admitted into evidence at that hearing. 

Based upon this evidence and the testimony of the Service officer as to 

the identity, the immigration judge found the respondents deportable 

under section 241(a)(2) of the Act as aliens who had entered the United 

States without inspection. This finding was correct, and was based upon 

clear, convincing, and unequivocal evidence. 

On the basis of the record before us at this time, dismissal of the 

appeal is warranted. However, in view of the Immigration and Nationality Act Amendments of 1976, Public Law 94-571, 90 Stat. 2703, 

effective January 1, 1977, certain natives of the Western Hemisphere 

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may be eligible for relief which previously was not available to them. 

Any questions in this regard should be addressed to the Immigration 

and Naturalization Service. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: Pursuant to the immigration judge's order, the 

respondents are 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; and in the event of 

failure so to depart, the respondents shall be deported as provided in the 

immigration judge's order. 

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