Interim Decision #2556 

MATTER OF BALTAZAR 

In Deportation Proceedings 

A-19092787 

Decided by Board February 18, 1977 

(1) Respondent's application for relief under section 245 of the Immigration and Nationality Act filed in deportation proceedings brought under section 241(a)(2) of the Act 

was denied as a matter of discretion by the immigration judge based on evidence that 

the respondent had divorced his wife in order to obtain immigration benefits and had a 

preconceived intent to remain at the time of his entry into the United States as a 

nonimmigrant. This evidence was in the form of a written memorandum to the file by 

the arresting officer, and his testimony at the hearing, based on answers to the officer's 

questions given by respondent while being taken to the Service office. At the tune of 

arrest, respondent was advised of his right to silence and unsuccessful attempts were 

made to locate his attorney. On appeal counsel contends that the interrogation was 

unlawful because it was conducted without the presence of counsel and without 

Miranda warnings. 

(2) Neither the statute nor the regulations provide that an alien in deportation proceedings is entitled to have counsel present during the initial interrogation or receive 

Miranda warnings, nor are Miranda warnings required to he given in connection with 

civil proceedings under the immigration laws, even to an alien in custody. 

(3) The Supreme Court has held with respect to criminal proceedings that in a case in 

'which the Miranda decision did not apply, a person who requested assistance of counsel 

but nonetheless proceeds to answer questions, had not been deprived his right to 

counsel. There is no indication in the record that respondent answered the questions 

under duress or as a result of coercion. 

(4) Respondent's preconceived intent to remain in the United States is an adverse factor 

relating to his application for discretionary relief and has no bearing on deportability. 

Evidence indicating that the respondent divorced his wife primarily to obtain immigration benefits is a significant adverse factor bearing upon the exercise of discretion. 

Eowever, Matter of Blas, Interim Decision 2485, (A.G. 1976) is distinguishable. 

from this ease because unlike the present case in Blas there was evidence that the 

divorce was obtained for reasons other than to circumvent the immigration laws. 

CHARGE: 

Order. Act of 1952—Section 241(a)(Z) [8 U.S.C. 1251(a)(2)] —Nonimmigrant—remained 

longer 

ON BEHALF OF RESPONDENT: Richard Fraade, Esquire 

5670 Wilshire Boulevard, Suite 1800 

Los Angeles, California 90036 

131i: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members 

The respondent was found deportable under section 241(a)(2) of the 

108 
Interim Decision #2556 

Immigration and Nationality Act and granted voluntary departure in 

lieu of deportation in proceedings instituted against him in 1972. He 

moved to reopen the proceedings in order to apply for adjustment of 

status under section 245 of the Act. In a decision dated April 15, 1976, 

the immigration judge, after granting the motion, denied the application 

and renewed the previous grant of voluntary departure. The respondent 

has appealed from that decision. The appeal will be dismissed. 

The immigration judge held that the respondent, a native and citizen 

of the Philippines, was statutorily eligible for section 245 relief, but he 

denied it as a matter of discretion. In so doing, he relied on evidence 

that the respondent had divorced his wife in order to obtain immigration 

benefits, and that, at the time of his entry to the United States as a 

nonimmigrant, the respondent had a preconceived intent to remain in the 

United States. 

The evidence was in the form of a written memorandum to the file by 

the arresting immigration officer and the officer's testimony at' the 

hearing. In the memorandum and at the hearing the witness allegedly 

related the substance of an interrogation made of the respondent after 

his arrest. According Lu the officer's testimony, at the time of the arrest 

the respondent asked that his attorney be notified. An unsuccessful 

attempt was made to contact her. The officer also testified that he had 

advised the respondent at that time of his right to remain silent (Tr. p. 

23-24). Nevertheless, while being taken to the Service office, the respondent answered the officer's questions, admitting that he came to the 

United States with the intention to remain here permanently and that 

he had divorced his wife in order to obtain an immigrant visa. Shortly 

after arriving at the Service office, the respondent's attorney was contacted. 

Counsel objects to the admission into evidence of the memorandum 

and of the arresting officer's testimony. He contends that the interrogation was unlawful because it was conducted (1) without the presence of 

counsel and (2) without Miranda warnings. 

It is not clear from this record that there was a failure to give 

Miranda warnings. In any event, neither the statute nor the regulations provide that an alien in deportation proceedings is entitled to have 

counsel present during an initial interrogation or to receive the warnings required in criminal proceedings by the Supreme Court's decision 

in Miranda v. Arizona, 384 U.S. 436 (1966). Furthermore, it has been 

held that Miranda warnings are not required to be given in connection 

with civil proceedings under the immigration law, even to an alien in 

custody. Chavez-Rays v. INS, 519 F.2d 397 (7 Cir. 1975). See Nai 

C heng Chen v. INS, 537 F.2d 566 (1 Cir. 1976); Trias-Ilernandez v. 

INS, 528 F.2d 366 (9 Cir. 1975); Matter of Chen, Interim Decision 2440 

(BIA 1975), affirmed Chen v. INS, 537 F.2d 566 (1 Cir. 1976). 

109 
Interim Decision #2556 

Counsel argues that the fact that the respondent was questioned 

without counsel after having requested counsel amounted to a denial of 

his Sixth Amendment right. We disagree. In Escobedo v, Illinois, 378 

U.S. 478 (1964) the United States Supreme Court established the right 

to have the assistance of counsel in a- criminal interrogation when the 

person being interrogated so requested. However, the Supreme Court 

has held with respect to criminal proceedings that, in a case in which the 

Miranda decision did not apply, a person who made a request for the 

presence of counsel but who nonetheless proceeded to answer questions 

had not been deprived of his right to counsel. Frazier v. Cupp, 394 U.S. 

731 (1969). See also Earp v. Cupp, 453 F.2d 378 (9 Cir. 1972); Connors 

v. South Dakota, 422 F.2d 122 (8 Cir. 1970), cert. denied 389 U.Z. 954 

(1970). As in Frazier, there is no indication in the record that the 

respondent answered the questions under duress or as a result of 

coercion. We note that the court stated in Frazier that the defendant's 

request had been somewhat ambiguous. Nevertheless, even assuming 

that in the present case the request for counsel was clearer than that in 

Frazier, we find the distinction insignificant in view of the more stringent rules applicable to criminal proceedings_ 

The admissions made by the respondent regarding his preconceived 

intent to remain here permanently have no bearing on deportability, 

which has been conceded. They relate only to his application for discretionary relief and are an adverse factor. Soo Yuen v. INS, 456 F.2d 1107 

(9 Cir. 1972); Ameeriar v. INS, 438 F.2d 1028 (3 Cir. 1971), cert. 

dismissed, 404 U.S. 801 (1971); Chen v. Foley, 385 F.2d 929 (6 Cir. 

1967), cert. denied, 393 U.S. 838 (1968); Cubillos-Gonzalez v. INS, 352 

F2d 782 (9 Cir. 1965); Castillo v. INS, 350 F.2d 1 (9 Cir. 1965). 

Moreover, we also conclude that the evidence indicating that the respondent divorced his wife primarily to obtain immigration benefits is a 

significant adverse factor which bears upon the exercise of discretion. 

We note that the facts of this case distinguish it from those in Matter of 

Bias, Interim Decision 2485 (BIA 1974; Attorney General 1976). In 

Bias, although affirming the Board decision denying the application for 

adjustment of status, the Attorney General held that it was improper to 

deny the relief for the purpose of vindicating the alien's former marriage. However, in Bias, unlike in the present case, there was evidence 

that the divorce was obtained for reasons other than to circumvent the 

immigration laws. 

The equities present in behalf of the respondent are insufficient to 

'w arrant a grant of adjustment of status. Accordingly, we conclude that 

the immigration judge's denial of section 245 relief was proper, and we 

shall dismiss the appeal. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: The respondent is granted voluntary depax110 
Interim Decision #2556 

ture without expense to the Government on such date as may be granted 

by the District Director. If the respondent fails to depart when and as 

required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following Order shall thereupon become immediately effective: the respondent shall be deported 

from the United States to the Philippines on the charge contained in the 

Order to Show Cause. 

111