Interim Decision #2375 

MATTER OF BURGOS 

In Deportation Proceedings 

A-20354694 

A-20353298 

Decided by Board April 25, 1975 

Under section 237 of the Immigration and Nationality Act, a Service officer is empowered, 

without warrant to interrogate an alien as to his right to be or remain in the United 

States, and to arrest an alien illegally here who is likely to escape before a warrant can 

be obtained. On appeal respondents' counsel contends that it was error not to grant his 

motion to suppress the evidence which he alleged was the result of an illegal arrest, and 

that it was also error to refuse him freedom to inspect the Service files relating to 

respondent; to discover the basis of the arrests; respondents' motion is denied. Whore 

respondents admitted at the hearing that they were not United States citizens, under 

section 291 e the Act, they had the burden of proving the time, place and manner of 

entry into the United States. Since they failed to sustain that burden they are presumed 

to be in the United States in violation of law, and were therefore forma deportable by 

clear, convincing and unequivocal evidence. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2)18 U.S.C. 1251(a)(2)]—Entry without inspection 

(Both aliens). 

ON BEHALF a? RESPONDENTS: William H. Oltarsh, Esquire 

225 Broadway 

New York, New York 10007 

This is an appeal from an order of an immigration judge, dated 

October 25, 1974, finding the respondents deportable as charged (entry 

without inspection) and denying their applications for voluntary departure: The appeal will be dismissed. 

The respondents are husband and wife. The male respondent is 26 

years old, a native and citizen of El Salvador, who entered the United 

States on or about March 14, 1972 without inspection by an officer of the 

Immigration and Naturalization Service. His wife is 25 years old, also a 

native and c.tizen of El Salvador, who entered the United States on or 

about April 9, 1974 without inspection by an officer of the Immigration 

and Naturalization Service. Both entries are in violation of section 

241(a)(2) of the Immigration and Nationality Act. Each respondent 

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admitted entry into the United States without inspection by an officer of 

the United States Immigration and Naturalization Service. 

The male respondent admitted (1) alienage (Tr. p. 10); (2) paying $225 

to unidentified individuals to gain entry into the United States without 

inspection (Tr. p. 11). The female alien also admitted that she was an 

alien (native and citizen of El Salvador), who paid $200 to gain entry into 

the United States without undergoing inspection by an officer of the 

Immigration and Naturalization Service (Tr. pp. 11,13). On the basis of 

the respondents' admissions, the immigration judge found the respondents deportable and denied their applications for voluntary departure 

in the exercise of discretion. 

On appeal counsel has submitted a brief in which he contends (1) that 

prior to taking any testimony, he filed a motion to suppress the evidence 

so as to establish that as a result of the illegal arrest, search and seizure 

by immigration officers, the Immigration and Naturalization. Service 

derived information showing illegal presence of the respondents in the 

United States; and (2) that the immigration judge erred in denying the 

respondents' request under the Freedom of Information Act to inspect 

the records to discover what basis immigration officers had to detain and 

seize the respondents. 

We find no merit in any of counsel's contentions. 

The motion to suppress was properly denied by the immigration 

judge. One who raises the claim questioning the legality of the evidence 

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

Service will be called on to assume the burden of justifying the manner 

in which it obtained the evidence, Matter of Tang, 18 I. & N. Dee. 691 

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

Under section 287(a)(1) of the Act, an officer of the Immigration 

Service is empowered, without warrant, to interrogate any alien, or 

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

United States. Under section 287(a)(2), an officer may arrest any alien 

in the United States in violation of any law or regulation regulating the 

admission, exclusion or expulsion of an alien who is likely to escape 

before a warrant could be obtained for his arrest. 

The courts have recognized that the detention and apprehension of 

aliens is a special law enforcement problem, Laqui v. INS, 422 F.2d 807 

(C.A. -7, 1970); United States v. Monte Hernandez, 291 F. Supp. 715 

(E.D. Cal. 1968). As the court stated in Montez —Hernandez, supra, 

it 

. If immigration authorities were unable to question aliens as to 

their right to be in this country without some independent evidence that 

they were here illegally, their job would be impossible." In the instant 

case from the evidence of record it is concluded that the immigration 

officer was justified in interrogating the male respondent as to his status 

and in taking the male respondent into custody. 

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The record in this case does not disclose any evidence used against the 

respondents to establish deportability which was obtained as a result of 

any search or through arrest. Instead, the respondents argue, in effect, 

that their physical presence is the evidence to be suppressed as that 

presence was obtained illegally. 

The general principle that the illegality of an arrest does not destroy a 

later valid proceeding has long been recognized by the Supreme Court 

and is still a valid rule of law, Frisbie v. Collins, 342 U.S. 519 (1952); 

Ker v. Illinois, 119 U.S. 421 (1886). This principle has been repeatedly 

upheld by the courts, Guzman-Flores v. INS and Castellanos-Castillo 

v. INS, 496 F.2d 1245 (C.A. 7, 1974); Taylor v. Alabama, 465 F.2d 376 

(C.A. 5, 1972); United States v. Woodring, 446 F.2d 733 (C.A. 10, 1971); 

United States v. Morris, 445 F.2d 1233 (C.A. 8, 1971); Autry v. Wiley, 

440 F.2d 799 (C.A. 1, 1971); High Pine v. Montana, 439 F.2d 1093 (C. A. 

9, 1971); La,Franea v. INS, 413 F.2d 686 (C.A. 2, 1969). 

At the hearing the respondents admitted that they were not United 

States citizens. They did not invoke the Fifth Amendment. Therefore, 

under section 291 of the Act, they bore the burden of proving the time, 

place and manner of their entry into the United States, Matter of 

Ortega-Mojaro, 13 I. & N. Dec. 838 (BIA 1970). Since they failed to 

sustain that burden, they are presumed to be in the United States in 

violation of law. The Service did not rely upon any statement taken or 

any evidence seized at the time of the respondents' arrest to establish 

deportability. Thus, even if the arrest was illegal, this would not invalidate the subsequent deportation proceedings, Huerta-Cabrera v. INS, 

466 F.2d 79 (C.A. 7, 1972). See also: Shing Hang Tsui v. INS, 389 F.2d 

994, 995 (C.A. 7, 1968); Valeros v. INS, 387 F.2d 92 (C.A. 7, 1967); and 

Bilokumsky v. Tod, 263 U.S. 149 (1323). 

We reject counsel's statement on appeal that the respondents were 

denied due process and a fair hearing. The respondents were given an 

opportunity to offer evidence that they were legally entitled to remain 

in the United States, but not one shred of evidence was proffered. The 

immigration j udge's finding of deportability was established by evidence 

that is clear, convincing and unequivocal. We find no abuse of discretion 

in the immigration judge's denial of voluntary departure. Accordingly, 

the following order will be entered. 

ORDER: The appeal is dismissed. 

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