Interim Decision #2510 

MATTER OP ROJAS 

In Deportation Proceedings 

A-21415960 

Decided by Board August 2, 1976 

(1) Burden is on alien to establish a prima facie ease that the Service obtained its evidence 

illegally before. the Service will be required to justify the manner in which it obtained its 

evidence. 

(2) Allegation o! unfairness of hearing is not sustained where there is no evidence that 

alien's statements were involuntary and coerced and where the Service advised the 

alien of his rights in compliance with 8 CFR 287.3. 

(3) Denial of the privilege of voluntary departure was not an abuse of discretion where 

respondent ac mitted that he had twice entered the United States without inspection 

and also had previously rejected an offer of voluntary departure without the institution 

of deportation proceedings. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U. S. C. 1251(a)(2))—Entry -without inspection 

ON BEHALF OF RESPONDENT: Gary Silbiger, Esquire 

2212 Sunset Boulevard 

Los Angeles, CA 90026 

This is an appeal from the November 17, 1975 decision of the immigration judge it which he found the respondent deportable as charged, 

denied his 'application for voluntary departure, and ordered him deported to Mexico. 

On appeal counsel for the respondent contends (1) that the immigration judge wrongfully denied his motion to suppressevidence; (2) that 

the immigration judge improperly denied the respondent the right of 

cross-examination; (3) that deportability was not proven; (4) that the 

respondent was not given a fair hearing; and (5) that the immigration 

judge's denial of voluntary departure was, arbitrary, capricious, and an 

abuse of discretion. We shall answer each contention in turn. 

At the hearing the respondent identified himself, and it was stipulated 

that the order to show cause related to him. Thereafter, the respondent 

refused to testify on Fifth Amendment grounds and the Immigration 

and Naturalization Service was put to its proof. 

The Service introduced a Form 1-213, Report of Deportable Alien, 

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and a Form 1-214, Warning as to Rights. Counsel objected to these 

documents saying (1) that they were the fruit of an illegal arrest; (2) that 

they were the result of an involuntary and coerced statement; (3) that 

the respondent was not given his Miranda warnings or read his rights; 

(4) that no foundation had been laid as to the authenticity of the documents; (5) that the respondent was denied his right to crossexamination; and (6) that the forms contained hearsay statements. 

Counsel then examined the immigration officer who prepared the documents. 

• The immigration officer did not remember this particular respondent, 

but he described his unvarying practice in interviewing arrested aliens 

as follows. After picking up Form SW-424 (Exhibit 3) 1, the officer calls 

the subject in from the holding room and hands him Form 1-214 to 

advise him of his rights. If the subject cannot read or does not understand, the officer himself reads and explains his rights to him. If the 

subject requests a lawyer, the officer at this time gives him the opportunity to use the pay telephone and call a lawyer. Otherwise, he signs 

the warning of rights himself to show that he afforded the subject those 

rights, and then proceeds to fall out the Form 1-213, taking much of the 

information from the Form SW-424 and getting the rest from the 

subject. 

The respondent testified that he repeatedly asked for an opportunity 

to call a lawyer but was told to wait until later. The immigration officer 

testified that it was his invariable practice to allow a subject who 

requested a lawyer to call one at the time of the request. It was noted on 

the Form 1-213 that the respondent had requested a lawyer, but the 

notation does not indicate when the request was made. 

The respondent has offered no evidence tending to establish that his 

arrest was illegal. It is his burden to establish a prima facie case that the 

Service obtained its evidence illegally before the Service will be called 

upon to justify the manner in which it obtained its evidence. Matter of 

Tsang, 14 L & N. Dec. 294 (BIA 1973); Matter of Wong, 13 I. & N. Dec. 

820 (BIA 1971); Matter of Tang, 12 I. & N. Dee. 691 (BIA 1971). The 

immigration judge correctly denied the respondent's motion to suppress 

evidence and his request to examine the arresting officers. 

The authenticity of the Form 1-213 has been established by the officer 

who prepared the form. The form has the same name and the same A 

number as are on the order to show cause, which the respondent 

conceded related to him. Although counsel insinuated in his questioning 

of the Service officer that subjects who insist on speaking to their 

attorneys before answering questions are held on higher bond than 

This form has space for information concerning the subject's name; date and place of 

birth; nationality; status, place, date, and time of entry; date, place and time questioned; 

time and place arrested; and apprehending officers. 

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others and that the respondent's statement was involuntary and 

coerced, the, immigration officer denied this, and there is no evidence 

that any form of coercion was used to extract information from the 

respondent in this case. Moreover, we are satisfied that the respondent 

was advised of his rights in compliance with 8 CFR 287.3. There is no 

requirement that Miranda warnings be given. Trial-Hernandez v. 

INS, 528 F.2d 366, 369 (C.A. 9, 1975). We therefore find that deportability has been established by evidence which is clear, unequivocal, and 

convincing. We see no way in which the hearing was unfair as alleged by 

counsel. 

Regarding the respondent's application for voluntary departure, he 

stated that he did not have the funds to depart at his own Rxpense, nor 

would he even if he were given a somewhat extended period of time 

within which to depart. Accordingly, the immigration judge correctly 

found the respondent ineligible for the privilege of voluntary departure. 

8 CFR 244.1. 

The respcndent admitted, in his testimony on his application for 

voluntary departure, that this was his second entry without inspection. 

Furthermore, he rejected an offer of voluntary departure without institution of deportation proceedings. We do not think that denial of the 

privilege of voluntary departure in such a case is an abuse of discretion. 

Gil v. Del Guercio, 246 F.2d 553 (C.A. 9, 1957). 

Accordingly, the following order will be entered:. 

ORDER: The appeal is dismissed. • 

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