Interim Decision #1848 

OF YAM. 

In Deportation Proceedings 

A-15950259 

Decided by Board March, 19,1068 

Where, as a result of a routine Service investigative search of a restaurant, an 

alien produced two documents (an executed warrant of arrest and an order 

of supervision) in different names, the investigator was justified in believing 

the alien to be in the United States in violation of law and likely to escape 

before a warrant of Arrest could be obtained, and since following arrest the 

alien was taken without unnecessary delay for examination before a Service 

officer who took an affidavit from him and obtained an order to show cause 

and a warrant of arrest, the alien's arrest without a warrant was not 

illegal and the documents produced by him during the search and the affidavit 

obtained following arrest are admissible in evidence in deportation proceedings. 

Onus= : 

Order: At of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) [—Excludable at 

entry, previously excluded, no permission to reapply 

within year. 

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at 

entry, previously deported, no permission to reapply 

(as amended). 

ON BEHALF OF RESPONDENT : ON BEHALF OF Ssavica: 

Jack Wasserman, Esquire Irving A. Appleman 

Warner Building Appellate Trial Attorney 

Washington, D.O. 20004 (Brief filed) 

(Brief filed) 

The case comes forward on appeal from the order of the special 

inquiry officer entered October 23,1967 finding the respondent deportable on the charge stated in the order to show cause, as amended, 

denying voluntary departure and ordering respondent deported to 

Hong Kong. 

At the hearing respondent remained mute upon advice of counsel. 

The order to show cause alleges that the respondent is a native and 

citizen of China who entered the United States at Philadelphia, Pennsylvania on or about September 20, 1966; that he was arrested and 

deported from the United States on November 17,1965 at Honolulu, 

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Interim Decision #1848 

Hawaii; that he did not receive consent from the Attorney General 

to apply for readmission to the United States; and that he was found 

in the United States on October 12, 1967. The order to show cause 

charged that respondent was deportable under section 241(a) (1) of 

the Act, in that, at time of entry he was within one or more of the 

classes of aliens excludable by law existing at the time of such entry, to 

wit, aliens who have been excluded from admission and deported and 

who again seek admission within one year from date of such deportation, consent to reapply for admission not having been granted by the 

proper authority, under section 212 (a) (16) of the Act. Prior to 

rendering his decision the special inquiry officer permitted an amendment of the charge of deportability against the alien as one who has 

been previously arrested and deported, in whose case consent to reapply for admission has not been granted by the proper authority. 

Counsel objected to the amendment or propsed amendment, alleging 

it came after the close of the hearing. The special inquiry officer properly ruled that the hearing had not been closed inasmuch as he had 

not yet rendered a decision in the case. Counsel then stated that under 

the rules he was entitled to an adjournment. The special inquiry officer 

agreed that he was so entitled but counsel waived the adjournment. 

It is believed that counsel has not been harmed nor misled by -the 

amended charge. The same factual allegations of the order to show 

cause are used, only the technical wording of the charge has been 

change to conform to the factual allegations. Counsel did not object 

that the additional charge was not lodged in conformity with 8 CFR 

242.16 (d). His only objection was that the charge was amended after 

the close of the hearing whereas the hearing had not as yet been closed 

inasmuch as a decision had not been rendered. Counsel waived the 

adjournment to which he was entitled, and therefore appears to have 

acquiesced in the propriety of amending the charge in the order to 

show cause. The record, in the form of Exhibits 2, 3 and 4, establishes 

deportability. 

Counsel alleges that the arrest of the respondent without a warrant 

was illegal and that the documents taken from him and the affidavit 

(Ex. 2) executed by him should be suppressed. Immigration Investigator Podrasky testified that he and three other investigators, later 

joined by two others, made a routine search operation of the premises 

operated by the respondent as a restaurant. Investigator Podrasky 

stated there was no need to carry a warrant of arrest -because they had 

no information about the alien being here illegally until he got to the 

restaurant; that the respondent was present with his bookkeeper with 

whom he could not communicate. The respondent called a friend who 

acted as an interpreter. While waiting for the friend to arrive the 

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Interim Decision #1848 

respondent continued working. The investigator testified that the respondent furnished two pieces of paper, one an executed warrant of 

arrest in the respondent's name; the other, a Form I-220B, an Order 

of Supervision in the name of Yung Ing Wa (phonetic). The investigator testified that 'because of the production of these two documents 

in different names he did not know whom he had and he then made a 

determination that the respondent might abscond. He then asked the 

respondent to come to the immigration office where he executed the 

affidavit, with the same friend of the respondent acting as interpreter. 

Upon the basis of this affidavit the investigator applied for and remixed a warrant of arrest and order. o show cause which were served 

upon the respondent at about 8:00 p.m. of the same evening of October 12, 1967- Subsequent to the issue of the order to show cause and 

warrant of arrest, the investigator obtained from the New York office 

the respondent's file which contains Hong Song Seaman's Identity 

Book No. 47427; a Form 1-195 showing the refusal of admission of 

the respondent on September 20, 1066 at the port of Philadelphia (Er. 

3) ; and a warrant•f deportation relating to the respondent showing 

his deportation from the United States on November 17, 1965 from the 

port of Honolulu (Ex. 4). 

Counsel contends that the respondent's arrest was illegal because it 

was accomplished without a warrant. Section 287 (a) (1) of the Immigration and Nationality Act (8 U.S.C. 1357 (a) (1) ) states that any 

officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant 

to interrogate any alien or person believed to be an alien as to his right 

to be or to remain in the United States. It is clear that this provision 

was ample authority for the interrogation of the respondent. 

Section 287(a) (2) of the Immigration and Nationality Act (8 

U.S.C. 1357(a) (2)) authorizes the arrest of any alien in the 'United 

States if the officer has reason to believe that the alien so arrested is 

in the United States in violation of any such law or regulation and is 

likely to escape before a warrant can be obtained for his arrest, but 

the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine 

aliens as to their right to enter or remain in the United States. When 

as the result of interrogation the respondent produced two different 

types of documents, an unexecuted warrant of arrest in the respondent's name referring to an arrest April 18, 1965 and and Order of 

Supervision (Form I-22013), in another name, Yung Ing Wa, the 

immigration officer did not know whom he had, thought the respondent was likely to abscond because of the conflicting documents, asked 

him to come to his office where the same friend of the respondent was 

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Interim Decision #1848 

used as an interpreter. There can be no doubt that the respondent understood the interpreter and the answers are fully responsive. The 

investigator took an affidavit and obtained an order to show cause and 

warrant of arrest, which were duly served about eight o'clock of the 

same evening as the commencement of the interrogation. Under the 

circumstances, in view of the possession of two conflicting documents, 

the officer was justified in believing that the respondent was in the 

United States in violation of law and was likely to escape before a 

warrant of arrest could be obtained. The order to show cause and warrant were obtained after the respondent had been taken without unnecessary delay for examination before a Service officer? We therefore 

believe that the arrest was not illegal and that the respondent's 

affidavit and other evidence were properly admissible in evidence 

under 8 OFR 212.11(0).2. 

Inasmuch as the respondent remained mute upon advice of counsel, 

the special inquiry officer denied the privilege of discretionary relief 

of voluntary departure. Since the "respondent must. establish eligibility 

for discretionary relief, the special' inquiry officer's denial o•such relief under the circumstances was proper. 

ORDER; It is ordered that the appeal be and the same is hereby 

dismissed. 

'Matter of Chen Chin Ding, Int. Dec. No. 1833 (February 6, 1908) ; United 

States v. Alvaredo, 321 F.2d 336 (2d Cir., 1983) ; Pinero-Lopez v. Kennedy, 293 

F.2d 540 (D.O. 1961), cert. den. 386 U.S. 866; Diogo v. Holland, 243 F.2d 571 (3rd 

Cir., 1957) ; Tsimounia v Holland 182 F. Snpp. 754 (E.D. Pa.i 1955). 

2 Cf. Shiny Hang Tsui v. Immigration and Naturalization Service, No. 16246 

(7th Cir., January 31, 1968). 

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