Interim Decision #2132 

MATTER OF PEREZ-LOPEZ 

In Deportation Proceedings 

A-19171027 

A-19171025 

Decided by Board March 8, 1972 

An anonymous letter, received after the termination of deportation proceedings 

because of tainted evidence, which resulted in a reopened hearing with the 

introduction of additional evidence leading to deportability, was a lead clear 

and independent of any taint, and the deportation of respondents was ordered 

on the basis of the new evidence. 

CHARGE: 

Order; Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant 

visitor—remained longer (both). 

ON BEHALF OF RESPONDENTS: Lloyd E. McMurray, Esquire 

228 McAllister Street 

San Francisco, California 94102 

(Brief filed) 

At a reopened hearing, the special inquiry officer ordered respondents deported. He certified this order to the Board. The issue 

is whether the evidence used against respondents is free of taint. 

We find it is and, therefore, will make no change in his order. 

The special inquiry officer originally terminated deportation 

proceedings on the ground that the Service's case against respondants was based on evidence that was the "fruit of the poisonous 

tree." He found that a Service on-the-street questioning of respondents resulted in their legal arrest, that the Service subsequently made an illegal search and seizure of documents in 

respondents' living quarters, that these documents were used as 

leads to obtain evidence from the Service and State Department 

files, and that this evidence was presented by the Service at the 

deportation hearing to establish that respondents were Mexican 

aliens who had entered for a temporary period and had remained 

without authority. The special inquiry officer concluded that this 

evidence was tainted and could not be used to establish deportability. The special inquiry officer also held that respondents' admis7 9 
Interim Decision #2132 

sions against interest made after their arrest could not be used to 

establish deportability because the admissions were obtained after 

respondents' detention had become unlawful because of the Service's failure to follow its own regulations, 8 CFR 287.3. The facts 

are stated in detail in the special inquiry officer's comprehensive 

order of March 8, 1971. 

After the special inquiry officer terminated the proceedings, the 

Service received an anonymous letter stating that the respondents, who are brothers, are aliens illegally in the United States; 

that they had brought their mother and also the family of one 

respondent (wife and minor children) here; that they all lived at a 

certain address and that the respondents were working in the 

United States. The Service obtained a reopening of the deportation proceedings from the special inquiry officer- At the reopened 

hearing there was introduced in evidence the anonymous letter 

and statements taken by a Service investigator from the adult 

females named in the letter; the Service officer and the adult 

females testified. The special inquiry officer ruled that the Service 

had established its case by untainted evidence. He entered the 

order of deportation which is now before us. The special inquiry 

officer held that the letter would have led the Service to question 

respondents' adult relatives named in the letter and that such 

examination would have ultimately put the Service in possession 

of the same evidence from its files and those of the State Department that it had tried to use against respondents at the original 

deportation proceeding. Such evidence, free of taint, supported an 

order of deportation. 

Counsel concedes that the questioning of the mother and the 

wife named in the anonymous letter would have revealed that the 

respondents were illegally in the United States (counsel's brief, p. 

2). However, he contends that since it was the anonymous letter 

that led the Service to these witnesses, the Service must show that 

the anonymous letter was itself clear of taint, and to do this, the 

Service must show that the writer of the anonymous letter (the 

informer) had made a factual statement and that his statement 

was based on personal knowledge. In short, counsel would apply 

here, the "probable cause" test used in determining when an 

informer's statement may properly be the basis for the issuance of 

a search warrant, Aguilar v. Texas, 378 U.S. 108 (1964). 

We must reject counsel's contention. The test as to the admissibility of evidence offered by the Government in a case where it has 

obtained evidence unlawfully is well settled. It is not the rule 

advanced by counsel. It is that the Government has the burden of 

establishing that it gained or could have gained the knowledge it 

relies upon from a source independent of its wrongful act, Wong 

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Interim Decision #2132 

Sun v. United States, 371 U.S. 471, 485 (1963). Applying this test 

and assuming arguendo, that the special inquiry officer's termination order was correct for the reasons he gave, we find that the 

anonymous letter was a lead independent of any taint, that it 

warranted Service inquiry and that the evidence which would 

have resulted from it would have established respondents' deportability. 

We must reject counsel's attempt to equate an anonymous letter 

to the Service which became the basis for an investigation, with an 

informer's tip to the police which became the basis for the issuance 

of a warrant in a criminal case. There is a material difference 

between considerations which justify a Service investigation based 

upon an anonymous letter and the considerations in criminal cases 

which require a showing of probable cause before a warrant may 

be issued on an informer's tip. The immigration laws specifically 

provide that an investigation may be undertaken without the 

issuance of a warrant (as long as there is no unconstitutional 

invasion of privacy), section 287(a)(1) of the Act, 8 U.S.C. 1357(a)(1). 

See section 235 of the Act, 8 U.S.C. 1225. An immigration investigation can be initiated without independent evidence of a violation of 

the immigration laws, United States v. Montez-Hernandez, 291 F. 

Supp. 712 (E.D. Cal., 1968). See Laqui v. INS, 422 F.2d 807 (C.A. '7, 

1970). See also United States v. Minker, 350 U.S. 179 (1956). 

There is nothing in this record which would indicate that the 

anonymous letter was inspired by the Service. We reject the 

notion that an alien illegally in the United States who is now 

found deportable on untainted evidence can achieve what is 

tantamount to permanent residence merely because the Service at 

one time may have acted illegally in assembling evidence of his 

deportability. 

In view of the action we now take, it is unnecessary to discuss 

the special inquiry officer's order of March 8, 1971 terminating 

proceedings. 

ORDER: No change is made in the special inquiry officer's 

order. 

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