Interim Decision #2820 

MATTER OF Ramirez-SANcHEz 

In Deportation Proceedings 

A-230074'72 

Decided by Board August 25, 1980 

(1) The decision to institute deportation proceedings involves the exercise of 

prosecutorial discretion and is one which neither the immigration judge nor this 

Board reviews. 

(2) Once deportation proceedings are commenced, the immigration judge must find the 

respondent deportable if the evidence sustains the charge. 

(3) Where the name on Service records is identical to the respondent's name, in the 

absence of a denial by the respondent that those documents relate to him, we may 

infer that those records do pertain to him. 

(4) Counsel's comments in support of a motion to suppreao are not evidence. 

(5) Where Forms 1-274 (Request for Return to Mexico) advised the respondent of his 

right to counsel and to a deportation hearing, there was substantial compliance with 

8 C.F.R. 287.3 despite the failure of the record to indicate that the respondent was 

advised that any statement he made could be used against him in a subsequent 

proceeding. 

(6) Where there was substantial compliance with 8 C.F.R. 287.3, in the absence of any 

claim of any right to remain in the United States, there was no prejudice to the 

respondent from the admission into evidence from Service files of Forms 1-274 reflecting that the respondent had twice previously requested and received voluntary 

departure_ 

(7) Where copies of Forms 1-274 offered into evidence were properly certified by the 

District Director pursuant to 8 C.F.R. 103.7(dX2) and 287.6, and the respondent did not 

challenge the authenticity or accuracy of those documents, the immigration judge's 

refusal to require the Service to produce for cross-examination the agents who 

completed the forms was proper. 

(8) The facts that the respondent twice requested and accepted voluntary departure and 

that, even with the assistance of counsel, he has not alleged any right to remain in the 

United States constitute persuasive evidence of alienage. 

CHARGE; 

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)1—Entry without inspection 

ON BrHAr 5,or RESPONDENT: Kenneth A. Leshen, Esquire 

5228 Whittier Boulevard 

Los Angelce, California 90022 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

tiny 
Interim Decision #2820 

In a decision dated November 17, 1978, an immigration judge found 

the respondent deportable under section 241(a)(2) of the Immigration 

and Nationality Act, 8 U.S.C. 1251(a)(2), for having entered the United 

States without inspection. The immigration judge denied voluntary 

departure and ordered the respondent deported. The respondent has 

appealed. The appeal will be dismissed. 

The respondent is a married male approximately 23 years of age, 

allegedly a native and citizen of Mexico. A written argument in support of a motion to suppress contained in the record reflects that the 

respondent was arrested by Service officers on May 17, 1978, at the 

Sbicca Shoe Factory in South El Monte, California. 

At the hearing, the respondent testified that his name is Mario 

Ramirez-Sanchez. His counsel indicated that the respondent is the 

person named in the Order to Show Cause. The respondent then 

invoked his rights against self-incrimination under the Fifth Amendment and refused to answer further questions regarding deportability. 

To establish deportabiIity, the Service introduced two sets of documents from Service File No. A23 007 472 pertaining to one Mario 

Ramirez-Sanchez. Each set of documents included Forms 1-213 

(Record of Deportable Alien), 1-274 (Request for Return to Mexico), 

and WR-424. These sets of documents which were prepared on March 3, 

1977, and September 9, 1977, respectively, indicate, inter alit; that 

Mario Ramirez-Sanchez twice entered the United States without inspection by paying a smuggler, and that in both instances he requested 

and was allowed voluntarily to return to Mexico. Both Forms 1 -213 

show Sbicca, El Monte, California (the respondent's most recent employer) as the last or current employer. The respondent refused to 

identify the signatures on the Forms 1-274, but did not deny that he 

signed those, documents. The immigration judge found that these 

documents established the respondent's deportability by clear, convincing, and unequivocal evidence. 

On appeal, the respondent contends that the Order to Show Cause 

was facially insufficient to require him to answer it, that the documentary evidence introduced at the hearing should have been suppressed or at least that he should have been granted a separate hearing 

on his motion to suppress during which he could have testified without 

his testimony being considered against him on the issue of deportability, and that he was denied the right to cross-examine the agents who 

prepared the documents admitted into evidence against him.' His 

' The respondent devoted several pages of his, brief on appeal to the question whether 

his apprehension by Service agents at his place of employment was legally sufficient. 

This issue was not raised before the immigration judge and.the facts of the arrest are not 

set forth in the record. Moreover, no evidence seized in connection with the respondent's 

arrest was offered into evidence at the hearing It is well established that an illegal 

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Interim Decision #2820 

contentions were preserved for appeal by appropriate objections 

below. ' 

The respondent's challenge to the Order to Show Cause is in essence 

a contention that deportation proceedings were improperly instituted. 

Every proceeding to determine the deportability of an alien in the 

United States is commenced by the issuance of an Order to Show 

Cause. 8 C.F.R. 2421. The decision to institute deportation proceedings 

involves the exercise of prosecutorial discretion and is one which 

neither the immigration judge nor this Board reviews. Matter of 

Morin, 16 I&N Dec. 581 (BIA 1978); Matter of Geronimo, 13 I&N Dec. 

680 (BIA 1971). Once deportation proceedings are commenced, the 

immigration judge must order deportation if the evidence supports the 

charge. Guan Chow Tok v. INS, 538 F.2d 36 (2 Cir. 1976). Thus, the 

question is whether the evidence submitted established deportability 

and not whether the Order to Show Cause should have been issued. 

To be admissible in deportation proceedings, evidence must be relevant and probative and its use must not be fundamentally unfair. 

Hoonsilapa. v. INS, supra; Marlowe v. INS, 457 F.2d 1314 (9 Cir. 1972); 

Matter of Toro, Interim Decision 2784 (BIA 1980). The use of admissions obtained" from a respondent involuntarily to establish deportability is fundamentally unfair. Matter of Garcia, Interim Decision 2778 

(BIA 1980). An objection to the admissibility of a statement on the 

ground that it was involuntarily obtained must be supported by 

specific and detailed statements based on personal knowledge or other 

evidence, and a prima facie case must be shown before the Service is 

required to justify the manner in which the statement was obtained. 

Matter of Garcia, supra; cf. Matter of Rojas-Flores, 15 I&N Dec. 722 

(BIA 1976); Matter of Wong, 13 I&N Dec. 820 (ETA 1971); Matter of 

Tang, 13 I&N Dec. 691 (BIA 1971). 

The respondent's motion to suppress the evidence offered by the 

Service was insufficient and properly denied. There is no evidence that 

the prior statements of Mario Ramirez-Sanchez were- made involuntarily. The respondent's offer of proof in support of his motion is 

a mixed legal and factual declaration by counsel, not based on counsel's 

personal knowledge and never corroborated personally by the respondent. The respondent stood mute at the hearing, refusing to testify on 

the issue of deportability on the ground that his answers might incriminate him. In a brief to the immigration judge, his counsel argued 

arrest alone does not invalidate subsequent deportation proceedings otherwise legally 

sufficient. U.S. ex. rel. Bilolcurnsky v. Tod, 263 U.S. 149 (1923); Medina-Sandoval v. INS, 

524 F.2d 658 (9 Cir. 1975) is also settled that the respondent's identity is not 

suppressible. See Smithy. INS, 585 F.2d 600 (3 Cir. 1978); Ho onsilapa v. INS, 575 F.2d 735 

(9 Cir. 1978), Wong Chung Che v. INS, 565 F.2d 166 (1 Cir. 1977); Kati* v. INS, 562 F.2d 

866 (2 Cir. 1977); Guzman-Flores v. INS, 496 F.2d 1245 (7 Cir. 1974). 

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Interim Decision #2820 

that if the respondent were allowed to testify without his testimony 

being considered against him, the respondent would testify that at the 

times the statements in question were taken, he was detained in the 

custody of Service agents, he was nervous and fearful, and that the 

agents misrepresented if not suppressed his rights to counsel and to a 

hearing. 

Counsel's arguments are not evidence and even if they were, they 

would not constitute a prima faeie showing that the statements were 

involuntarily given. The statement lacks factual details from which we 

could conclude that there may have been coercion or duress. There is 

no allegation of physical abuse, hours of interrogation, denial of food 

or drink, threats or promises, or interference with any attempt by the 

respondent to exercise his rights. Compare Matter of Garcia, supra. 

The record does not reflect that the respondent was advised that any 

statement that he made could be used in a subsequent proceeding. 

However, we find substantial compliances with 8 C.F.R. 287.3 in that 

both Forms 1-274 advised the respondent, in both English and Spanish, 

of his right to consult a lawyer and his right to ask for a hearing to 

determine his right to remain in the. United States. Despite these 

warnings, the respondent acknowledged his alienage and requested 

voluntary departure. As the respondent, now with assistance of counsel, has offered no evidence or even an allegation of any right to remain 

in the United States, we infer that none existed at the time of his 

requests for voluntary departure. Under these circumstances we find 

no prejudice to the respondent (Matter of Garcia-Flores, supra) and 

that use of the documents described above is fundamentally fair? 

As the names on the documents from the Service's files and the 

respondent's name are identical and the respondent has not denied 

that the documents pertain to him or that the information contained 

in those documents is true, they are clearly relevant and clearly 

probative of alienage. U.S. v. Rebon-Delgado, 467 F.2d 11 (9 Cir. 1972); 

Matter of Lepva, 16 I&N Dec. 118 (BIA 1977); Matter of14,15 I&N Dec. 

514 (BIA 1975); Matter of Cheung,13 1&N Dec. 794 (BIA 1971). Further, 

aside from the verbal admissions made by the respondent, the facts 

that he twice requested and accepted voluntary departure to Mexico 

and that, even with the assistance of counsel, he has not alleged any 

2The immigration judge's. refusal to require the Service to produce for cross-examination the agents who recorded the respondent's statements was not error. The copies of 

those documents which were admitted were properly certified as official records of the 

Service by the District Director pursuant to 8 C.F.R. 287.6. A District Director is 

authorized by 8 C.F.R. 103.7(d)(2) to certify copies of files, documents, and records in the 

custody of his office. As the respondent did not challenge the authenticity or accuracy of 

those documents, no further authentication was required. Compare Matter of Exantus 

and Pierre, 16 I&N Dec. 382 (BIA 1977). 

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Interim Decision #2820 

right to remain in the United. States constitute persuasive evidence of 

alienage. The respondent has offered no evidence to establish the time 

and manner of his entry into the United States as required by section 

291 of the Act. 

We find the evidence of deportability to be clear, convincing, and 

unequivocal. See Woodby v. INS, 385 U.S. 276 (1966). Accordingly, the 

appeal will be dismissed. 

ORDERS The appeal is dismissed. 

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