Interim Decision #2193 

MATTER OF SCAVO 

In Deportation Proceedings 

A-14809313 

Decided by Board April 10, 1973 

Respondent, encountered by service officers in May 1972, turned over his 

driver's license in response to a request for identification and thereafter fled. 

Following apprehension in November 1972, in a sworn statement made in the 

presence of his attorney and after a Miranda warning, he admitted entry as a 

stowaway. At the deportation hearing he stood mute. Held: There was nothing 

illegal about the May 1972 questioning; a Miranda warning was not required 

since respondent was not then in custody; and the driver's license obtained at 

the time of the May questioning is admissible in evidence. In any event, 

irrespective of the legality of the May questioning, respondent's November 

statement, made after a full warning as to his rights, constitutes independent, 

untainted, clear, convincing, and unequivocal evidence of deportability. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Stowaway—entered 

without inspection. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Joseph A. Gatto, Esquire Irving A. Appleman 

3280 Penobscot Building Appellate Trial Attorney 

Detroit, Michigan 48226 

(Brief filed) 

This is an appeal from an order of deportation entered by the 

special inquiry officer on December 4, 1972. We shall dismiss the 

appeal. 

The respondent is a 39-year-old married male alien, a native and 

citizen of Italy. He is charged with entering the United States as a 

stowaway in 1966. An order to show cause in deportation proceedings was issued February 24, 1970 but could not then be served 

because the respondent could not be located. He was encountered 

by Service officers on May 31, 1972, at which time he turned over 

his driver's license (Exh. 4) in response to a request for identification. He then ran away. The respondent was not apprehended 

until November 9, 1972 at which time the order to show cause was 

served upon him. On November 10, 1972, in the presence of his 

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Interim Decision #2193 

attorney, he made a sworn statement to Service officers admitting 

that he had entered the United States as a stowaway. At a 

deportation hearing conducted on November 28, 1972, the respondent stood mute. The November 10 statement was introduced and a 

finding of deportability was based thereon. 

The respondent appeals on the ground that his motion to 

suppress the use of all the evidence introduced, including the 

November 10 statement, was improperly denied. The motion to 

suppress was based on the theory that the Service investigators 

should have advised the respondent of his constitutional rights, as 

set forth in Miranda v. Arizona, 384 U.S. 436 (1966), prior to 

questioning him in May 1972 as to his identity. Because of the lack 

of warnings, counsel characterizes the May questioning as an 

illegal arrest and illegal search and seizure, and the entire deportation proceeding, including all the evidence introduced, as fruit of 

the poisoned tree. 

The respondent's theory lacks merit for several reasons, the 

most obvious of which is that there was no connection between the 

May 1972 questioning and the November 1972 statement, inasmuch as the respondent ran away from the Service investigators 

in May 1972 and was not found again until November 1972. The 

November statement was given in the presence of counsel, following warnings regarding the right to remain silent and the potential use against the respondent of any statement_ The statement 

given in November, therefore, was in no way related to, or tainted 

by, the May questioning. 

Secondly, counsel's attack on the deportation proceeding itsellaS 

illegal fruit of the poisoned tree is without merit. Evidence tainted 

by an illegal arrest or search and seizure may be suppressed but 

untainted evidence may be received. 

Even if the arrest were illegal, the mere fact that the authorities got the 

"body" of Huerta-Cabrera illegally does not make the proceeding prosecuting 

him or deporting him the fruit of the poisoned tree ... (Huerta-Cabrera v. INS, 

466 F.2d 759 (CA. 7, 1972). 

Thus, even assuming, arguendo, that the May confrontation resulted in respondent's temporary custody and that there was some 

defect in the manner in which he was then apprehended, the 

deportation hearing was not thereby rendered illegal. The evidence of deportability on which the decision rested was the 

respondent's November statement (Exh. 3). That statement was 

independent of, and untainted by, the May questioning. 

Because the respondent stood mute at the deportation hearing, 

evidence was introduced to identify him as the subject of the 

proceedings. This evidence was the respondent's driver's license 

(Exh. 4), the records of prior bond proceedings (Exh. 5), and the 

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Interim Decision #2193 

testimony of Service personnel who had interviewed him prior to 

the hearing. 

Counsel contends that the admission of the driver's license was 

improper and makes the record fatally defective. Counsel objects 

to the admission of the driver's license on the ground that it was 

taken during an illegal arrest, illegal because the Miranda warnings were not administered prior to any questioning. However, we 

note that during oral argument before us counsel himself admitted 

that the Service investigators followed proper procedure when 

they obtained the driver's license: 

Chairman: ... the Immigration officer ... inquired of this man as to his 

identity. And this respondent produced his driver's license which 

contained his name, and that identified him. What was wrong with 

this procedure? 

Attorney: Nothing. Up to that point nothing was wrong. (Tr. of oral argument, 

P. 9) 

In any event, since the driver's license is not a crucial piece of 

evidence in this case—even without it, the evidence in the record 

identifying the respondent is overwhelming—we need not further 

concern ourselves with its admissibility. 

Moreover, there is no support in the cases for the proposition 

advanced by counsel that immigration officers must administer 

warnings as set forth in Miranda v. Arizona, supra, prior to any 

Questioning. While some have held that there is no right to counsel 

during the taking of a statement in the investigative stage of an 

immigration proceeding, 1and that, consequently, Miranda warnings need not be given because deportation proceedings are civil, 

not criminal, in nature,2we need not rely on that approach. It is 

clear in any event that the requirement of warnings applies only 

when the subject of the inquiry is in custody or is deprived of his 

freedom in a significant way, Miranda v. Arizona, supra. There is 

no showing in this record that the respondent was in custody or 

deprived of his freedom when questioned in May 1972. 3In fact, he 

left the scene. 

As for counsel's claim that the questioning constituted an illegal 

arrest, the record indicates that the questioning in May can be 

Nason v. INS, 370 F.2d 865 (CA. 2, 1967); Matter of Steele, 12 L & N. Dec. 302 

(BIA, 1967). 

2 Jolley v. INS, 441 F.2d 1245, 1255 (C.A. 5, 1971), cert. den., 404 U.S. 946 (1971); 

Matter of Lavoie, 12 I. & N. Dec. 821 (BIA, 1968), affd Lavoie v. INS, 418 F.2d 732, 

734 (C.A. 9, 1969), cert. den. 400 U.S. 854 (1970); Matter of Pang, 11 I. & N. Dec. 

213 (BIA, 1965), affd Ah Chiu Pang v. INS, 368 F.2d 637 (C.A. 3, 1966), cert. den. 

. 386 U.S. 1037 (1967). 

Counsel asserted at oral argument that a gun was "pulled" on the respondent but there is nothing in the record so indicating. 

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Interim Decision #2193 

characterized neither as illegal nor as an arrest. Section 287(a)(1) 

of the Immigration and Nationality Act gives authority to officers 

of the Immigration and Naturalization Service to interrogate 

without a warrant any person believed to he an alien as to his 

right to be or remain in the United States. Such interrogation has 

been held not to constitute an arrest, Yam Sang fiwai v. INS, 411 

F.2d 683 (D.C. Cir., 1969), cert. den. 396 U.S. 877 (1970); Au Yi Lau v. 

INS, 445 F.2d 217 (D.C. Cir., 1971), cert. den. 404 U.S. 864 (1971); 

Cheung Tin Wong v. INS, 468 F.2d 1123 (D.C. Cir., 1972). It may be 

deduced from these cases that mere detention for questioning does 

not constitute "custody," and, therefore, does not require that 

Miranda warnings be given before any questioning. 

In view of the above, we conclude that there was nothing illegal 

about the May questioning, or the obtaining of the respondent's 

driver's license, and that the special inquiry officer's finding of 

deportability was fully supported irrespective of the legality of the 

May questioning.' The respondent's November statement, made 

after a full warning as to his rights, constituted independent, 

untainted, clear, convincing and unequivocal evidence of deportability. It was a voluntary statement against self-interest and 

admissible as such, Matter of C—C—Y—, 9 I & N. Dec. 225 (BIA, 

1961); Matter of P—, 5 I. & N. Dec. 306 (BIA, 1953); Schoeps v. 

Carmichael, 177 F.2d 391 (C.A. 9, 1949), cert. den. 339 U.S. 914 

(1950); Gonzales v. Landon, 215 F.2d 955 (C.A. 9, 1954). 

The respondent did not apply for any relief from deportation. 

ORDER: The appeal is dismissed. 

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