Interim Decision #2725 

MATTER OF SANDOVAL 

In Deportation Proceedings 

A-20824162 

Decided by Board August 20, 1979 

(1) Exclusionary rule is a "judicially created remedy designed to safeguard Fourth 

Amendment rights generally through its deterrent effect. United States v. Calandra, 414 U.S. 338, 348 (1974). 

(2) The United States Supreme Court has never applied the exclusionary rule to exclude 

evidence from purely civil proceedings. 

(3) The issue of whether the Fourth Amendment exclusionary rule should apply in 

deportation proceedings must be resolved upon a pragmatic analysis of the purposes 

underlying the rule, the efficacy of the rule as applied in deportation proceedings to 

serve its remedial objectives, the societal costs incurred by the exclusion of reliable 

and probative evidence from deportation proceedings, and the available alternatives 

to deter unlawful conduct by immigration officers. 

(4) If an immigration officer violates an individual's Fourth Amendment rights during 

an investigation, the evidence resulting from the violation will be excluded from any 

subsequent criminal prosecution. 

(5) The application of the exlusionary rule to deportation proceedings would not offer any 

significant additional disincentive to misconduct on the part of immigration officers. 

(6) The application of the exclusionary rule to deportation proceedings would result in 

societal costs, which could be avoided if the more direct and timely alternatives, which 

presently exist, were utilized to curb misconduct by immigration officers. 

(7) When the remote likelihood that the exclusion of evidence seized in violation of an 

individual's Fourth Amendment rights would significantly affect the conduct of immigration officers is balanced against the societal costs that could arise from such 

action and the alternatives available to compel respect for constitutional rights, 

neither legal nor policy considerations dictate the exclusion of such evidence from 

deportation proceedings. 

(8) Even assuming that the alien's admissions as reflected on the Form 1-213 ("Record of 

Deportable Alien") arose as a result of an unlawful search of her apartment, the Form 

1-213 was admissible at the deportation proceeding and established her deportability 

by clear, convincing and unequivocal evidence. 

CHARGE: 

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

Lodged - Act of 1952—See. 241(a)(2) U.S.G. 1251(a)(2)J —In the United States in 

violation of law having failed to establish the time, place 

and manner of entry as required under sec. 291, I&N Act 8 

U.S.C. 1261) 

70 
Interim Decision #2725 

ON BEHALF OF RESPONDENT: 

Charles S. Sims, Esquire 

Melvin L. Wulf, Esquire 

American Civil Liberties Union 

22 Eclat 40th Street 

New York, New York 10016 

Attorneys of Record: 

Leon Rosen, Esquire 

60 East 42nd Street 

New York, New York 10017 

Rhoda K. Dryer, Esquire 

17 Old Colony Drive 

Larchmont, New York 10538 

ON BEHALF OF SERVICE 

George Indelicato 

Appellate Trial Attorney 

Lloyd A. Sherman 

Trial Attorney 

BY: 7Ailhollan, Chairman; Maniatis and Maguire, Board Members. Concurring Opinion, 

Board Member Farb. Dissenting in Part and Concurring in Part Opinion, Board 

Member Appleman 

The respondent appeals from a decision of an immigration judge 

dated September 30, 1975, finding her deportable as charged and ordering her deportation to Mexico_ The appeal will be dismissed. We will, 

however, grant the respondent voluntary departure under section 

244(e) of the Act, 8 U.S.C. 1254(e). 

The respondent is a married 36-year-old native and citizen of Mexico. She entered the United States in March 1975. She and her husband 

crossed the border at night and were not inspected by immigration 

officers. The couple subsequently made their way to New Rochelle, New 

York 

On August 6, 1975, the respondent was taken into custody by immigration officers, who located her during a search of the building in 

which she resided. After being, taken to a Service office and advised of 

her rights, she made a statement admitting her alienage and unlawful 

entry. She also supplied information resulting in the preparation of a 

Form 1-213 ("Record of Deportable Alien"). 

On that same day, an Order to Show Cause was issued charging the 

resp ondent with being deportable under section 241(a)(2) of the Act, 8 

U.S.C. 1251(a)(2), as one who entered the United States without 

inspection. 

The deportation hearing was convened on August 22, 1975, and was 

conducted in several sessions, the last of which was on September 30, 

1975. During these proceedings, an additional charge was lodged, 

alleging the respondent to also be deportable under section 241(a)(2) as 

one who was unlawfully in this country because she failed to establish 

the date, manner, and place of her entry as required under section 291 

of the Act, 8 U.S.C. 1361. 

By order dated September 30, 1975, the immigration judge found the 

resp ondent deportable as charged based on her statement of August 6, 

71 
Interim Decision 112725 

1975, and on an admission made at the hearing that she was an alien 

followed by her refusal to answer subsequent questions regarding her 

entry. 

Both below and on appeal, the respondent, through counsel, submits 

that her statement of August 6, 1975, and the resulting Form 

1-213, should have been suppressed as the "fruit of the poisonous 

tree"—it being alleged that the search of her apartment (which 

resulted in her detention) was in violation of the Fourth Amendment 

of the United States Constitution. It is also submitted that the respondent's admission of alienage before the immigration judge 

resulted from improper questioning subsequent to her invocation of 

her Fifth Amendment privilege against self-incrimination and that 

the admission, therefore, should not have been considered. The respondent further states that the immigration judge's conduct of the 

hearing evidenced a lack of impartiality and a denial of the respondent's Fifth Amendment due process right to a fair hearing. Finally, it 

is argued that the immigration judge improperly denied the respondent the privilege of voluntary departure after he refused to let her 

testify for the limited purpose of supporting her application for that 

relief. 

As regards the evidence of deportability, we agree that the respondent's admission at the hearing concerning her alienage was elicited 

from her after she was improperly denied her Fifth Amendment 

privilege against self-incrimination. We will accordingly disregard the 

respondent's admission in this regard.' See Tashnizi v. INS, 585 F.2d 

781 (5 Cir. 1978); Valeros v. INS, 387 F.2d 921 (7 Cir. 1967); Estes v. 

Potter, 183 F.2d 865 (5 Cir. 1950), cert. denied, 340 U.S. 920 (1951); 

Matter of R—, 4 I&N Dec. 720 (BIA 1952). See also section 275 of the 

Act, 8 U.S.C. 1325. 

In view of this finding, the sole evidence of record regarding deportability is that which the respondent alleges resulted from an 

unlawful search of her dwelling and which she submits should have 

been excluded from the proceedings below. 

' The record suggests that the immigration judge repeatedly questioned the respondent concerning her alienage and directed her to respond to his questioning because she 

had not personally and expressly invoked her Fifth Amendment privilege regarding that 

matter. See U.S ex ret Bilokumsky v. Tad, 263 US. 149 (1923); Laqui v. INS, 422 F.2d 807 

(7 Cir. 1967); Chavez-Raya v. INS, 519 F.2d 297 (7 Cir. 1975). Considering the respondent's statement that she did not "like to answer," counsel's explanation that she was in 

fact invoking the Fifth Amendment privilege, and the language barrier arising from a 

non-English speaking witness testifying through a translator, we are satisfied that the 

privilege had been invoked as to the question of alienage and that the subsequent 

directions to respondent to that question were improper. Cf. U.S. ex ret Vaj fewer v. 

Commissioner of Immigration, 273 U.S. 103,113' (1927) (regarding privilege being "fairly 

brought to the attention of the tribunal which must pass upon it"). 

72 
Interim Decision #2725 

The facts of this case relating to the challenged search were not 

clearly developed in the 68-page record. Apparently, however, the 

respondent and her husband shared the third floor of a 3-story house 

with 2 other men and one of the men's children (some or all of these 

persons were related). The ground level apartment in the house 

belonged to the building's "caretaker" and was accessible by its own 

exterior door. The upper 2 stories were accessible by one outside 

entrance. This outside door was always kept locked and each of the 

tenants and the caretaker had a key. An inside stairway led from the 

second floor to the third floor, where the respondent resided. There was 

a door leading to the third floor of the house, which was kept closed, but 

which had no lock. There was no testimony as to whether the exterior 

of this door reflected that it led to a separate apartment. 

According to the testimony of one of the inhabitants of the third 

floor of the house, at 6:00 a.m. on the morning of August 6, 1975, he 

received a telephone call warning him that immigration officers were 

coming. Approximately 15 minutes later he saw immigration officers 

outside the house. He did not hear the house bell ring or hear a knock, 

but assumed the caretaker let the officers into the locked building. 

Shortly thereafter, two immigration officers opened the door to the 

third floor area of the house, entered partially, knocked after they had 

stepped inside, and then searched the apartment? The respondent's 

witness testified. that no consent was given to search. The Service 

concedes that the investigators had no warrant. The immigration 

judge did not require either investigator to testify at the hearing. 

The respondent and her husband were subsequently taken into 

custody and transported to a Service office, apparently after admitting 

their unlawful status. At 2:15 p.m. that same day, after being advised 

of her rights, the respondent signed an affidavit, admitting her 

alienage and her illegal entry into this country. It is this statement and 

the 1-213 prepared in conjunction with it that the respondent urges 

must be excluded from evidence as the product of an illegal search. See 

Wong Sun v. United States, 371 U.S. 471 (1963) (regarding the suppression of verbal statements). Exclusion is argued solely on Fourth 

Amendment grounds, as the respondent makes no claim on appeal that 

her statement was either involuntary or otherwise inadmissible. 

On these facts, if we assume that evidence unlawfully seized by 

immigration officers must be excluded from deportation proceedings, 

we would find that the respondent had come forward with sufficient 

On appeal, the respondent states, through counsel (Brief on Appeal, at page 4), that 

the 2 investigators, "wielding flashlights, burst through the front door of the apartment." Neither the testimony of the respondent's witness nor her own affidavit, however, 

supports this characterization of the agents' entry. 

73 
Interim Decision #2725 

proof to establish a prima facie case of illegality so as to require the 

Service either to assume the burden of justifying the manner which it 

obtained entry to the respondent's apartment or to establish that the 

connection between the search and the resulting statement and Form 

1-213 had become sufficiently attenuated to dissipate any "taint." See 

Brown v. Illinois, 422 U.S. 590 (1975); Nardone v. United States, 308 

U.S. 338, 341 (1939); Matter of Tang,13 I&N Dec. 691 (BIA 1971). See 

also United States v. Karathanos, 531 F.2d 26, 34-35 (2 Cir. 1976), cert. 

denied, 428 U.S. 910 (1976). As that burden was not placed on the 

Service and as evidence justifying the search is not in evidence, we are 

faced with the issue of whether the exclusionary rule should be held 

applicable in deportation proceedings' 

A preliminary question in this regard is whether unlawfully seized 

evidence has previously been held excludable from deportation 

proceedings. Two early district court decisions' ordered the exclusion 

of such evidence and the Supreme Court in dicta in U.S. ex rel. 

Bilokumsky v. Tod, 263 U.S. 149, 155 (1923) stated that "it could be 

assumed that evidence obtained by the Department [of Labor] through 

an illegal search and seizure cannot be the basis of a finding in 

deportation." A. leading immigration law treatise states that: 

it is undisputed ... that the Fourth Amendment's prohibition against unreasonable 

searches and seizures applies in deportation proceedings, and that evidence obtained 

as the result of an unlawful search cannot be used.' 

Thus, one might assume that the issue has long been resolved. 

During the initial 55 years following the Bilokuntsky decision, however, we find no Federal Court decision either holding that evidence 

obtained through an unlawful search would be inadmissible in deportation proceedings or in fact excluding any such evidence_ Moreover, the Board has never specifically reached this issue. Many decisions do exist in which the merits of a challenge to a contested search 

were addressed,' but over the cited period all reported cases were 

By memorandum, dated October 4, 1978, the General Counsel of the Service states 

that the Service position is that the exclusionary rule is inapplicable in civil deportation 

proceedings 

parte Jackson, 263 F. 110 (D. Mont. 1920), appeal dismissed, sub nom. Andrews v. 

Jackson, 267 F. 1022 (9 Cir. 1920); United States v. Wong Quong Wong, 94 F. 832 (D. Vt. 

1899). 

5Gordon and Rosenfield, Immigration Law and Procedure (Revised Edition 1977), at 

5-31. No case cited in support of this principle, however, includes a holding in this regard 

or resulted in any exclusion of evidence from a deportation proceeding. See Missal v. 

INS, 261 F.2d 529 (D.C. Cir. 1966); United States v. Montez -Hernandez, 291 F.Supp. 712 

(RD. flat 1968); Roa-Rodriguez v. INS, 410 F.2d 1206 (10 Cir. 1969). 

See Hocrasilapa v. INS, 575 F.2d 735 (9 Cir. 1978); Cordon de Ruano v. INS, 554 F.2d 

944 (9 Cir. 1977); Aguirre v. INS, 553 F.2d 501 (5 Cir. 1977); Ho Chong Tsao v. INS, 538 

F.2d 667 (5 Cir. 1976), cert. denied, 430 U.S. 906 (1977); Vlissidis v. Anadell, 262 F.2d 398 (7 

74 
Interim Decision #2725 

resolved in the Government's favor, thus obviating the need to specifically reach the question now under consideration. This wealth of eases 

can be read either as assuming the excludability of unlawfully seized 

evidence or as declining to address that fundamental issue where not 

essential to do so.1In either case, however, during this 55-year period 

neither the Board nor any Federal Court either ordered the exclusion 

of any unlawfully seized evidence or reached the issue of whether such 

evidence should in fact be excluded from deportation proceedings. 

Remarkably, not until 1977 do we find a Circuit Court decision 

specifically addressing the question. That year, the First Circuit Court 

of Appeals in Wong Chung Che v. INS, 565 F.2d 166 (1 Cir. 1977), held 

that the product of an unlawful search would be inadmissible in 

deportation proceedings. That decision, however, was based in large 

part on what was viewed as the long history of "assumed" inadmissibility rather than on a detailed analysis of the relative merits of 

excluding such evidence from deportation proceedings. Compare Smith 

v. Morris, 442 F.Supp. 712 (ED. Pa. 1977), appeal dismissed on other 

grounds sub num. Smith v. INS, 585 F.2d 600 (8 Cir. 1978) (exclusionary 

rule not applicable to deportation proceeding in which decision did not 

depend upon proof of specific events, but merely on proof of status). 

Accordingly, as the Board has not previously resolved this issue, as 

we find only one contemporary Federal Court decision in which unlawfully seized evidence is specifically held to be excludable, and as we 

find no decision in which the appropriateness of applying the rule in 

deportation proceedings is analyzed hi any detail, we will address the 

question as one of first impression. 

The initial issue is whether relevant Supreme Court precedent 

mandates the conclusion that all unlawfully obtained evidence be 

excluded from civil deportation proceedings without further inquiry 

into the necessity, usefulness, and effect of the exclusion of such 

evidence within the context of immigration law. We find this not to be 

the case. 

The exclusionary rule is "a judicially created remedy designed to 

safeguard Fourth Amendment rights generally through its deterrent 

Cir. 1959); Matter of Gonzalez, Interim Decision 2536 (BIA 1976); Matter of Burgos, 15 

I&N Dec. 278 (BIA 1975); Matter of Scavo,141&N Dec. 826 (BIA 1973); Matter of Tsang, 

14 I&N Dec 294 (BIA 1973); Matter of Wong, 13 I&N Dec. 620 (1971); Matter of Tang,13 

I&N Dec. 691 (BIA 1971); Matter ofAu, rim and Lam, 13 I&N Dec. 294 (BIA 1969); Matter 

ofDoo, 13 I&N Dec. 30 (BIA 1968); Matter of Chen, 12 I&N Dec. 603 (BIA 1968); Matter of 

D—M—, 6 I&N Dec. 726 (BIA 1955). 

'This Board has not previously intended to reach the issue decided today and withdraws from any language which may be read as suggesting otherwise. See also Lee v. 

INS, No. 77-2265 (3 Cir. filed Jan. 4,1979); Cuevas-Ortega v. INS, No. 77-1630 (9 Cir. filed 

Jan. 2. 1979). 

75 
Interim Decision #2725 

effect. . . ." United States v. Calandra, 414 U.S. 338, 348 (1974). The 

Supreme Court has found that the "need for deterrence and hence the 

rationale for excluding evidence are strongest where the Government's 

unlawful conduct would result in the imposition of a criminal sanction 

on the victim of the search." (Emphasis supplied.) Calandra at 338. 

Thus, in certain criminal proceedings, the Court has assumed the 

necessity and efficacy of the "drastic measure" of excluding evidence as 

a means of deterring law enforcement officials from violating Fourth 

Amendment rights. See United States v. Janis, 428 U.S. 433, 459 (1976). 

The Supreme Court, however, has "never ... applied [the exclusionary rule] to exclude evidence from a civil proceeding, federal or state." 

United States v. Janis at 447" The Court in Janis did reference the 

"seminal" lower court decisions that had applied the exclusionary rule 

to civil proceedings involving "intrasovereign" Fourth Amendment 

violations, but expressly did not consider that situation. Janis at 456. 

In the same decision, the Court also noted without adverse comment 

that in "some cases the courts have refused to create an exclusionary 

rule for either intersovereign or intrasovereign violations in proceedings other than strictly criminal prosecutions."' Thus, it is not entirely 

clear that the Court would extend the exclusionary rule to exclude 

evidence in any civil proceeding. See Todd Shipyards Corp. v. Secretary 

of Labor, 586 F.2d 683, 689 (9 Cir. 1978) (questioning applicability of 

rule in OSHA proceedings). We are convinced, however, that if the rule 

were to be extended to apply in a given civil proceeding, the Court 

would only do so after balancing the likelihood of deterring misconduct 

by- government officials against the societal costs imposed by rendering 

unavailable clearly probative and reliable evidence.° 

Although deportation is a drastic measure and at times "the 

equivalent of banishment or exile,"" it has consistently been classified 

as a civil rather than a criminal procedure 12 For this reason, every 

s See Janis at 447 n. 17, regarding the exclusion of evidence from 2 proceedings which 

were in "substance" and "effect" criminal (i.e., proceedings the subject of which were to 

"penalize for the commission of an offense against the law." Plymouth Sedan v. Pennsylvania. 380 U.S. 693, 700 (1965)). 

Janis at 456. We note in this regard that all of the numerous reported cases which 

have considered the question have held the exclusionary rule inapplicable to probation 

revocation proceedings. See United States v. Frederickson, 581 F.2d 711, 713 (8 Cir. 1978) 

and the cases cited therein. See also U.S. ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2 

Cir. 1970) (rule not applied in parole revocation proceedings). 

" See Stone v. Powell, 428 U.S. 465, 488 (1976); United States v. Janis, supra at 447-460 

(1976); United States v. Calandra, 414 U.S. 338, 349 (1974). 

" Deloadillo v. Carmichael, 332 U.S. 388, 391 (1947). 

"See Woodtry v. INS, 385 U.S. 276, 285 (1966); Harisiades v. Shaughnessy, 342 U.S. 580, 

594 (1952); Ramirez v. INS, 550 F.2d 560, 563 (9 Cir. 1977); LeTourneur v. INS, 538 F.2d 

1368,.1370 (9 Cir. 1976), cert. denied, 429 U.S. 1044 (1977); Nai Cheng Chen v. INS, 537 F.2d 

76 
Interim Decision #2725 

court of appeals that has considered the issue has held that the absence 

of Miranda warnings does not render an otherwise voluntary statement inadmissible in a deportation case. See Navia-Duran v. INS, 568 

F.2d 803, 808 (5 Cir. 1977); Trias-Hernandez v. INS, 528 F.2d 366, 368 (9 

Cir. 1975); Anila-Gallegos v. INS, 525 F.2d 666, 667 (2 Cir. 1975); 

Chavez-Ray a v. INS, 519 F.2d 397, 399-401 (7 Cir. 1975). Accordingly, 

we find no clear mandate to extend the Fourth Amendment exclusionary rule to apply in deportation proceedings without a further inquiry 

into the appropriateness of doing so. Instead, we find that this issue 

must be resolved only upon a "pragmatic analysis" of the purposes 

underlying the exclusionary rule, the efficacy of the rule as applied in 

deportation proceedings to serve its remedial objectives, the societal 

costs incurred by the exclusion of reliable and relevant evidence from 

deportation proceedings, and the available alternatives to deter unlawful conduct by immigration officers. 

The Supreme Court has held that the prime, if not sole, purpose of 

the exclusionary rule is to detet future unlawful police conduct. United 

States v. Jaais, supra at 446; United States v. Calandra, supra at 347. It 

is well-settled that the rule is not calculated to "redress the injury into 

the privacy of the search victim"' and there would appear little 

support for the view that application of the rule is essential for the 

purposes of "judicial integrity." Further, the rule's ultimate purpose 

is not to punish the Government for the wrongful acts of its agents. 

Thus, at a minimum, it would appear essential to a decision to apply 

the rule in deportation proceedings that we find that such application 

would have some meaningful effect on the future conduct or misconduct of immigration officers." 

We initially note in this regard that immigration officers are 

charged with investigating both civil and criminal violations of the 

566 (1 an 1976); Avila -Gallegos v. INS, 441 F-2d 1245 (5 Cir. 1971), cert. denied, 404 U.S. 

946 (1971). See also Abel v. United States, 362 U.S. 217, 237 (1960): 

According to the uniform decisions of this Court, deportation proceedings are not 

subject to the constitutional safeguards for criminal prosecutions. Searches for 

evidence of crime present situations demanding the greatest, not the least, restraint 

upon the Government's intrusion into privacy; although its protection is not limited to 

them, it was at these searches which the Fourth Amendment was primarily directed. 

"Stone v. Powell, supra at 488 

" United States v. Calandra, supra at 347. 

" Stone v. Powell, supra at 499 (1976) (Burger, CI, concurring); United States v. Janis, 

supra at 457. 

' We limit our inquiry here to the question relating to the exclusion of evidence 

unlawfully seized by immigration officers. However, we find significant support in Janis 

for the conclusion that evidence unlawfully seized by federal and state police officers in 

pursuance of criminal investigations should not be excluded from deportation hearings 

(collateral, civil proceedings). 

77 
Interim Decision #2725 

immigration laws. See, for example, sections 242(d) and (e), 252(c), 

264(e), 266, and 274-278 of the Act, 8 U.S.C. 1252(d) and (e), 1282(c), 

1304(e), 1306, 1324-1328 (criminal violations under Service jurisdiction). The criminal and civil investigations are routinely performed 

concurrently because an officer who suspects an individual of being 

unlawfully present in the United States will not ordinarily know in 

advance whether or not the individual may also have violated a 

criminal provision of the immigration laws. If an immigration officer 

violates an alien's rights under the Fourth. Amendment during such an 

investigation, he knows that evidence resulting from that violation 

will be excluded from any subsequent criminal prosecution. See United 

States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. 

Briononi-Ponce, 422 U.S. 873 (1975); United States v. Karathanos, 

supra. Thus, if one starts with the premise that the exclusionary rule is 

an effective tool of deterrence, the question now before us is whether 

any additional significant deterrent effect would be served by ruling 

that such evidence should also be excluded from the related civil 

deportation proceeding. 

At first appearance, it might seem that the deterrent effect on 

immigration officers of excluding unlawfully seized evidence from 

deportation proceedings could still be equated to the presumed effect 

on law enforcement officials of excluding such evidence from criminal 

proceedings. In both instances the evidence would be made unavailable 

in the proceedings that fall within the officers' "zone of primary 

interest."" The fact that deportation proceedings are civil in nature, 

however, creates further distinctions which make this comparison 

inapposite. 

First, although there is no convincing empirical evidence that the 

exclusionary rule has operated to deter violations of Fourth Amendment rights by law enforcement officials, the Supreme Court has been 

willing to apply that "drastic measure" in various criminal settings 

based on its "own assumptions of human nature arid the interrelationship of the various components of the law enforcement system." 

United States v. Janis, supra at 459. This willingness arises in part 

because the rationale for excluding evidence is strongest where 

criminal sanctions can result and because it was searches for evidence 

of crime to which the Fourth Amendment was primarily directed. In 

view of the absence of these factors in the civil setting, we are not 

convinced that the Court would "assume" the efficacy of the exclusionary rule as a meaningful tool of deterrence if applied in deportation 

proceedings. 

Secondly, the civil nature of deportation proceedings creates a clear 

"Janis at 458. 

78 
Interim Decision #2725 

impact on the rule's potential effectiveness to deter future misconduct 

by immigration officers, even if it were extended so as to require the 

exclusion of unlawfully seized evidence in those proceedings. A significant number of deportation cases involve solely the question of a 

respondent's present status, as distinguished from criminal proceedings where the issues generally relate to a defendant's past actions. See 

Smith v. Morris, supra. In fact, in many deportation cases the sole 

matters necessary for the Government to establish are the respondent's identity and alienage—at which point the burden shifts to the 

respondent to prove the time, place and manner of entry. See section 

291 of the Act. It is also true, in view of the civil nature of these 

proceedings, that the "body" or identity of an alien (as distinguished 

from alienage) is not suppressible as the "fruit of the poisonous tree" 

even if it is conceded that an illegal arrest, search, or interrogation 

occurred. See Hoons-ilapa v. INS, supra at 738; Wong Chung Chs v. INS, 

supra at 168; Katris v. INS, 562 F.2d 866, 869 (2 Cir. 1977); AvilaGallegos v. INS, supra at 667; Guzman-Flores v. INS, 496 F.2d 1245, 

1247-48 (7 Cir. 1974); Huerta-Cabrera v. INS, 466 F.2d 759, 761 n. 5 (7 

Cir. 1972); La Franca v. INS, 413 F.2d 686, 689 (2 Cir. 1969). Once an 

alien's identity is learned, the Service can entirely avoid triggering the 

exclusionary rule in all eases where documents lawfully in the Service's possession evidence unlawful presence. 

Accordingly, even if one presumes the existence of an immigration 

officer who would intentionally elect either to violate or not to violate 

an individual's Fourth Amendment rights based on whether his 

wrongful actions could result in evidence available for use in deportation proceedings, it is not clear that the application of the exclusionary 

rule would significantly impact on that officer's judgment because 

what is often the most damaging evidence resulting from an illegal 

search (the alien's "body") cannot be suppressed." Thus, even if the 

exclusionary rule were applied in deportation proceedings, a presumed 

unscrupulous immigration officer would not be assured prior to his 

unlawful act that he would not be "rewarded" with damaging evidence 

which could result in an alien's deportation." This Board is, therefore, 

not convinced that the adoption of the exclusionary rule in deportation 

proceedings would offer any significant additional deterrent to misconduct to an immigration officer who would otherwise intentionally 

"By this analysis, we of course do not sanction any hypothetical misconduct. It is 

solely intended to illustrate the limitations of excluding evidence from deportation 

proceedings as a meaningful deterrent to immigration officers. 

"'Under these circumstances, only where the officer knew prior to the search that the 

individual was one for whom the Service had no records (e.g., an alien who entered 

without inspection) or that the Service records alone could not result in a finding of 

deportability, could now even assume that the incentive for misconduct could be affected. 

79 
Interim Decision #2725 

choose to violate an individual's Fourth Amendment rights in hopes of 

assisting in the alien's deportation." 

Against this somewhat questionable role as a tool of deterrence, one 

must consider the "societal costs" imposed by application of the rule. It 

might be presumed that these "costs" would be minimal in view of the 

fact that since 1899 we can find only two reported cases in which 

unlawfully seized evidence was in fact excluded from deportation 

proceedings and only one other case in which the applicability of rule 

was specifically addressed. Under such circumstances (even if one 

assumes that the Service may have elected not to issue Orders to Show 

Cause in some cases for fear that critical evidence might be found 

inadmissible), the rule would not appear to have the potential to 

significantly impact on this country's immigration laws and policies. 

There are, however, "costs" which arise even when evidence is not 

ultimately excluded. Absent the applicability of the exclusionary rule, 

questions relating to deportability routinely involve simple factual 

allegations and matters of proof. 2' When Fourth Amendment issues 

are raised at deportation hearings, the result is a diversion of attention 

from the main issues which those proceedings were created to resolve, 

both in terms of the expertise of the administrative decision makers 

and of the structure of the forum to accommodate inquiries into search 

and seizure questions. The result frequently seems to be a long, confused record in which the issues are not clearly defined and in which 

there is voluminous testimonylbut the underlying facts not sufficiently 

developed. The ensuing delays and inordinant amount of time spent on 

such cases at all levels has an adverse impact on the effective administration of the immigration laws, which to date (in view of the virtual 

absence of eases in which evidence has been ultimately excluded) has 

in no way been counterbalanced by any apparent productive result. 

This burden on the "system" is certainly not a basis in itself to 

conclude that such issues are not appropriate in deportation proceedings, but we think this effect is a relevant consideration when balancing competing interests and one which cannot be characterized as 

"trivial." See Pranks v. Delaware, 98 S.Ct. 2674, 2682-2683 (1978). This 

is particularly true in a proceeding where delay may be the only 

"defense" available and where problems already exist with the use of 

dilatory tactics. See, e.g., Vasquez-Contreras v. INS, 582 F.2d 334 (5 Cir. 

"See, Austin T. Fragoman, Jr., Procedural Aspects of Illegal Aspects of Illegal Search 

and Seizure in Deportation Cases, San Diego Law Review, Vol. 14, No. 1, Dec. 1976, at pp. 

181-182, regarding impact of exclusionary rule as a deterrent to misconduct by immigration officer under present statutory and rase law . 

"Presently, in the majority of cases, deportability is conceded and the bulk of the 

hearing concerns applications for various categories of mandatory or discretionary 

relief from deportation. 

80 
Interim Decision #2725 

1978); Der-Rung Choir v. INS, 578 F.2d 464 (2 Cir. 1978); BallenillaGonzalez v. INS, 546 F.2d 515 (2 Cir. 1976), cert. denied, 434 U.S. 819 

(1976); Medina v. INS, 473 F.2d 728 (3 Cir. 1973), cert. denied, 412 U.S. 

928 (1973). 

Other "societal costs" would arise in any case where the rule operated to preclude the deportation of an alien whose presence in this 

country was not lawful. We do not suggest that the "cost" of an alien's 

continued unlawful presence is in any way comparable to the "cost" of 

allowing a criminal to go free; the differences are of kind, rather than 

degree. A criminal may be given immunity for past conduct, but is 

never licensed to commit future crimes. However, where an alien 

whose status is not lawful is saved from deportation through the 

operation of the exclusionary rule, the result would be a sanctioning of 

a continuing violation of this country's immigration laws. 

As a final consideration in this regard, we think it possible that the 

availability of the exclusionary rule in deportation proceedings would 

make it less likely that alien§ and their counsel would pursue more 

direct and timely approaches to curbing violations of Pourth Amendment rights by immigration officers. It is not unreasonable to assume 

that an alien will be primarily concerned with his or her own status, 

and only secondarily concerned with the future actions of immigration 

officers. Thus, even though the suppression of evidence may be the 

most cumbersome and unproven tool of deterrence, it is the approach 

most likely to be pursued by an alien whose Fourth Amendment rights 

have been violated because of its "windfall" effect. 

This last consideration is relevant only if other alternatives exist 

with respect to curbing such misconduct by immigration officers, but 

we find that alternatives are available. The most direct initial action 

that one can take when there is misconduct by an immigration officer is 

a formal complaint to his or her superior; in most instances relating to 

unlawful searches, the District Director. See 8 C.F.R. 100.2. See also 

Operations Instruction 287.19, March 15, 1978 ("The Service Professional Integrity Program"). There is no evidence suggesting that the 

Service is not responsive to complaints regarding employee misconduct. Such an approach provides no "windfall" to the alien, and offers 

significant advantages over the exclusionary rule in preventing subsequent misconduct. First, the action is direct and timely. It can follow 

immediately after the alleged misconduct and the complaint can be 

directed to the official responsible for supervising the day-to-day actions of the officer or officers in question. This approach does not rely 

on any presumption (which we think unfounded) that the officer will 

tailor his or her conduct based on an administrative or judicial decision that may come months or even years after the contested action, 

particularly when it is in no way clear that officers are even aware of 

81 
Interim Decision #2725 

the ultimate disposition of the cases in which there are involved. 

Moreover, this, approach has the benefit of forcing supervisory personnel to confront the issues and to clarify policies relating to searches 

and seizures. Where misconduct is determined to have occurred, the 

impact on the responsible officer can be significant, direct, and incapable of being ignored (e.g., a fine, suspension, or dismissal). Equally 

as important, where improper actions are taken by an officer in good 

faith, education and training can be substituted for punishment. 

We note in this regard that we are not dealing with a diverse group 

of law enforcement agencies responsible to various federal or state 

authorities. We are concerned with one federal agency and its officers, 

who are responsible to one agency Commissioner, and in turn ultimately responsible to the Attorney General of the United States. We 

are not satisfied—and have not been shown—that misconduct by Service officers relating to violations of individuals' Fourth Amendment 

rights cannot be adequately addressed within this forum. 

Secondly, where the violations stem from unlawful Service policies 

rather than from individual misconduct, such policies regarding 

searches can be challenged in the Federal Courts by injunctive or 

mandamus actions—actions specifically designed to deter future misdeeds, rather than to punish for past conduct. See Lowy. INS, 583 F.2d 

1110 (9 Cir. 1978); LaDuke v. Castillo, 455 F.Supp. 209 (E.D. Wash. 

1978); Marques v. Kiley, 436 F.Supp. 100 (S.D.N.Y. 1977); Illinois 

Migrant Council v. Pilliod, 540 F2d 1062 (7 Cir. 1976), modified en bane, 

548 F.2d 715 (7 Cir. 1977). These actions also directly impact on the 

perceived problem, rather than relying on any hope that an officer's 

conduct will be affected by the result of a subsequent proceeding in 

which he is neither a party nor (if we presume malevolence) much 

concerned"' 

Finally, civil or criminal actions against the individual officer may 

be available. See Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 

(1971). See also U.S. ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1164 

(2 Cir. 1970); 18 U.S.C. 2234-2236. 

We recognize the fundamental right of all persons in this country to 

privacy free from unreasonable state intrusion. We are sensitive to the 

fact that many persons journey to this country—at times at great 

personal sacrifice—in order to live in a society in which constitutional 

guarantees are meaningfully enforced. We simply are not convinced, 

however, that the exclusion of unlawfully seized evidence from deportation proceedings would in fact affect the conduct of any immigration officer who would otherwise malevolently violate individual 

rights. 

" United States v. Janis, 428 U.S. at 448 n. 20. 

82 
Interim Decision #2725 

Accordingly, when we balance what we consider to be the remote 

likelihood that the exclusion of unlawfully seized evidence from deportation proceedings would significantly affect the conduct of immigration officers with the societal costs that could result from such 

action and the alternatives available to compel respect for constitutional rights, we are not satisfied that either legal or policy considerations dictate the exclusion of unlawfully seized evidence from these 

proceedings." In view of the, foregoing, we find that the respondent's 

statement of August 6,1975, and the Form 1-213 were admissible in the 

proceedings below and that deportability under section 241(a)(2) of the 

Act was established by clear, convincing and unequivocal evidence. 

Regarding the claim that the immigration judge was biased, disrespectful, and incompetent, we find that the respondent's contentions 

are not supported in the record_ We do not agree that alleged errors in 

rulings and that which counsel perceives as "silly procedural technicalities" indicate either prejudice or incompetence requiring new 

proceedings before a different immigration judge. The record is at 

times confused and also suggestive of a strained relationship between 

the immigration judge and the respondent's three counsel (particularly on the part of counsel), but we find no manifestation of any "bias" on 

the part of the immigration judge as regards the respondent nor any 

impermissible restraint on counsel's representation of their client. We 

note that the immigration judge made various rulings in the respondent's favor, in fact elicited from the Service the fact that no warrant 

had been issued for the search in question, granted frequent recesses 

to the respondent to confer with her attorneys, accommodated every 

rescheduling request made by the respondent's counsel, and ultimately 

adjourned the proceedings and withheld his decision pending submission by the respondent's counsel of a brief in support of their motion. 

Our review of the record does not reveal "flagrantly injudicious conduct" (as submitted by counsel) resulting in a denial to the respondent 

of a fundamentally fair hearing." 

22Our decision in this regard, of course, does not affect the inadmissibility of evidence 

obtained in violation of a respondent's privilege against self -incrimination or of statements or admissions that are involuntary or coerced. See Tashnizi v. INS, supra; Valeros 

v. INS, supra; Navia,Duran v. INS, 568 F.2d 803 (1 Cir. 1977); Bong Youn Choy v. Barber, 

279 F.2d 642 (9 Cir_ 1960). 

" It is submitted that the immigration judge was abusive and "shouted" during the 

proceedings; however, in response to a complaint in this regard he advised counsel that 

he was not raising his voice, but that it was his normal voice level and he wanted counsel 

to keep his "voice up." The record in fact reflects that on numerous occasions the 

immigration judge found it necessary to instruct the parties, including the Service's 

witness, to speak louder. It is also submitted on appeal that the immigration judge 

engaged in an improper ex parts conference with the trial attorney, a Service witness 

and the Chief Special Inquiry Officer. The record indicates, however, that at the 

83 
Interim Decision #2725 

Finally, the respondent challenges the denial of voluntary departure. We are satisfied that she should, as a matter of discretion, be 

granted that privilege. The parties at the hearing appear to have been 

unclear as to the meaning of the regulatory language in 8 C.F.R. 

242.17(d). In Matter of ulos, 15 I&N Dec. 645 (BIA 1976), decided after 

the immigration judge's decision appealed from herein, we clarified 

that the testimony given in support of an application for voluntary 

departure may not be relied upon to base a finding of deportability. 

Considering that there appears little doubt as to the respondent's good 

moral character and in view of the understandable uncertainty at the 

hearing as to the advisability of answering all questions, we will grant 

to the respondent the privilege of voluntary departure. 

The appeal will accordingly be sustained as to the denial of voluntary departure, and dismissed in all other regards. 

ORDERS The appeal is dismissed, except as regards the denial of 

voluntary departure. 

FURTHER ORDERS The outstanding order of deportation is 

withdrawn, and in lieu of an order of deportation the respondent is 

allowed to depart voluntarily, without expense to the Government, 

within 30 days from the date of this order or any extension beyond that 

time as may be granted by the District Director and under such 

conditions as he may direct. In the event of the respondent's failure so 

to depart, the order of deportation will be reinstated. 

CONCURRING OPINION: Ralph Farb, Board Member 

The exclusionary rule is not applicable to deportation hearings, nor 

should it be. 

Decision writers and commentators who assume its applicability 

have failed to discuss it deeply. It is as if it was casually assumed that, 

because the Fifth Amendment's self-incrimination clause applies and 

is operative to bar the use of involuntary statements, the same result 

must follow from violation of the search and seizure clause of the 

nearby Fourth Amendment. That the two are not analogous is easily 

demonstrated. 

The very words of the Fifth Amendment, prohibiting the use of 

enforced self-incriminating statements in criminal trials, underlie the 

extension of the bar to civil and administrative proceedings where the 

September 9, 1975, hearing the respondent's counsel stated only that it "appeared" to her 

that a conversation had occurred (the substance of which she did not know) during the 

course of the previous hearing when she and the respondent were conferring outside the 

hearing room. The immigration judge indicated that no conversation regarding the 

proceedings had occurred and, on this record, we find neither material error nor a need to 

pursue the matter. 

84 
Interim Decision #2725 

Government is the adverse party. Moreover, such statements are suspect as to reliability and probative value. 

By contrast, the Fourth Amendment in itself says nothing about use 

of illegally seized evidence. The exclusionary rule is not a personal 

constitutional right of an aggrieved party, it has never been interpreted as applying to all types of proceedings and it is not intended to 

give redress to the aggrieved party. 

The deportation hearing process has never been linked to formal 

rules of evidence. Evidence which would be inadmissible in a courtroom may be received; if it is probative it may be relied upon to 

establish a fact. This is consonant with the overall approach to this 

type of administrative decision making. Neither illegality in the arrest 

nor irregularity in the contents of the initiating document necessarily 

stands in the way of a deportability. 

For Fiscal Year 1977, the Immigration and Naturalization Service 

reported that it had located 1,042,000 deportable aliens. Of these, 

939,000, or 90%, were listed as having entered without inspection. That 

means that for the vast majority there was no reason to expect that the 

Immigration and Naturalization Service records contained prior 

evidence of their identity as aliens. I am not condoning or encouraging 

violation of Fourth Amendment rights in the immigration investigator's search for solid proof of identity. If it were done deliberately, 

discharge from Government service would be appropriate. I simply 

don't see how we can reasonably bar the use of illegally obtained 

convincing proof that a person is an alien with no right of presence, 

when that may be all that will ever be available to identify him. It 

would be inconsistent with the manifest intention of Congress that the 

Immigration and Naturalization Service know the location of every 

alien in the country. 

The Board's decision attempts to draw a distinction between immigration investigators and other types of law enforcement officers as 

to the hypothetical deterrent effect which might result from the imposition of the exclusionary rule on deportation hearings. I will have 

none of it. There is no reliable evidence of the effect of the exclusionary 

rule on conduct of police officers generally, and it is merely fanciful to 

make comparisons based on the supposed deliberate conduct of knowledgeable officers. Most violations of civil rights result either from 

ignorance or from excess of zeal. The calculating, unscrupulous officer 

belongs to fiction, not reality. Despite my reservation in this one 

regard I agree with the decision. 

85 
Interim Decision #2725 

DISSENTING IN PART AND CONCURRING IN PART: Irving A. Applemen, 

Board Member 

I concur only in the result reached in this case by the majority decision, not in its rationale. My divergence with my colleagues is threefold: (1) Even assuming an unlawful arrest, the Service evidence in this 

case is admissible and alienage and deportability have been established 

by clear and convincing evidence, without any necessity for reaching 

the issue of applicability of the exclusionary rule; (2) Assuming any 

necessity for examining the arrest, the evidence respecting the claimed 

illegality is unsatisfactory in crucial areas, and a reopening of the 

proceedings is required before the applicability of the Fourth Amendment can be discussed, to determine if an issue actually exists; (3) 

Assuming arguendo the necessity for, and propriety of, reaching the 

issue, the exclusionary rule is applicable in deportation proceedings. 

I 

The Government's case rests on a Form 1 -213 (Record of Deportable 

Alien), an Affidavit signed by the alien, a Form 1-214 (Advice of 

Rights), and the testimony of Investigator DiPlacidi. 

DiPlacidi was responsible for the execution of these documents at 

the Immigration and Naturalization Service office. He was not the 

arresting officer. His initial action was to fully advise the respondent 

of her rights in her own language. The Affidavit (Exhibit 2) was taken 

from her in Spanish, written down in English and read back to her in 

Spanish. The Form 1-213 (Exhibit 3) was filled out from information 

partly known to the investigator and partly furnished by the respondent. The Form 1-214 is part of Exhibit 2 and notes the time of execution 

as 2:15 p.m., on the day of the arrest and the place as 20 West 

Broadway, New York City.' The Form 1-213 and the affidavit state that 

the respondent is a native and national of Mexico who entered the 

United States without inspection in March 1975. 

The 1-213 shows that the alien was apprehended at her residence on 

August 6, 1975 at 6:30 a.m. during a "field investigation." The Affidavit 

recites that it was taken in Spanish by Investigator DiPlacidi, that he 

identified himself as an, officer of the United States Immigration and 

Naturalization Service and informed her that he desired to take her 

sworn statement regarding her illegal entry into the United States. It 

contains warnings as to her right to remain silent; that anything she 

said might be used against her in a court or in an immigration or 

administrative proceeding; that she had the right to talk to a lawyer 

' This is the location of the New York office of the Immigration and Natualization 

Service. 

86 
Interim Decision #2725 

for advice during questioning; that if she could not afford a lawyer one 

would, be appointed for her; that she had the right to stop answering 

questions at any time. 

According to DiPlacidi, these warnings were given to her in Spanish 

and she fully understood them. Included in the preliminary warnings, 

is the statement "I am willing to make a statement without anyone 

else being present." Her signature appears on both pages. The warnings and statement of rights on the attached 1 -214 are also in the 

Spanish language, and are equally complete. The form concludes in 

substance, "I understand my rights, I am ready to make a declaration 

and answer questions. For now I do not desire a lawyer. I understand 

and know what I am doing. I have not been made any promises nor 

have I been threatened, nor has any pressure or force been used 

against me." It too bears her signature. 

DiPlacidi testified that all information reflected in Exhibits 2 and 3 

was freely furnished by the alien. No allegations have been made by 

the respondent, nor has there been any offer of proof that the information was furnished on other than a completely voluntary basis, without 

any coercion, duress, or intimidation. There appears to have been 

complete compliance with the Service regulation governing arrest 

procedures. 

Nothing in the evidence offered by the respondent in support of her 

motion to suppress, indicates that the arrest, even assuming arguendo 

that it was illegal, bore a relationship to the information furnished 

hours later at the Service office. The allegations in the respondent's 

affidavit in support of her motion to suppress relate only to the circumstances surrounding the arrest itself. Her supporting witness testified 

only as to what took place at the time of the arrest. We are being asked, 

with no evidentiary support whatsoever, to assume that a "taint" 

carried over automatically to these documents, notwithstanding their 

facial compliance with evidentiary due process requirements (TriasHernandez v. INS, 528 F.2d 366 (9 Cir. 1975)), the fact that they were 

executed at a time and place substantially removed from the scene of 

the arrest, and the buttressing, testimony of the Service officer that the 

information was given freely and voluntarily. 

It is appreciated that the bar of the exclusionary rule extends to 

verbal evidence as much as to other physical evidence. Under the 

holdings in Wong Sun v. United States, 371 U.S. 471 (1963), and United 

States v. Karathanos, 531 F.2d 26, 34-35 (2 Cir. 1976), the taint of an 

original illegal arrest can carry over to such evidence, and render it 

inadmissible. Nevertheless, it does not do so in all cases, and in all 

circumstances. The rule recognizes the possibility of attenuation. 

Clearly, verbal statements made at the time of an illegal arrest would 

be inadmissible under Wong Sun. At the same time a voluntary confes87 
Interim Decision #2725 

sion made several days after the arrest was held admissible in Wong 

Sun, because the connection between arrest and statement had been 

dissipated. This case falls somewhere in between. United States v. 

Karathanos, supra, has an additional element of a government 

promise to alien witnesses, of voluntary departure without prosecution, which helped to carry the original taint over to their testimony. 

NO such element is present in this case, and Karathanos is not 

determinative on the facts here. 

Brown v. Illinois, 422 U.S. 590 (1975), places a burden on the Government to show that a later admission was an act of free will unaffected 

by initial Fourth Amendment illegality. Miranda warnings by themselves do not break the causal chain. Brown, however, rejects any 

automatic "but for" rule. Whether a confession is the product of a free 

will under Wong Sun, supra, must be answered on the facts of each 

case. Miranda warnings are an important factor. So too are the 

temporal proximity of the arrest and confession, the presence of 

intervening circumstances, and the purpose and flagrancy of the official misconduct. Brawn v. Illinois, supra, at 003 and 004. 

Measured against these criteria the Service has met its burden. 

There is unrebutted testimony and evidence as to much more than 

mere Miranda warnings. The warnings themselves were particularly 

full and complete. There was an intervening lapse of time of about 

seven hours (as against the less than two hours in Brown) between 

arrest and statement. There is no satisfactory showing of flagrant 

government misconduct, nor a deliberate Fourth Amendment violation "for investigation" or for "questioning" as was the case in Brown 

(See II—below). None of the evidence relied on was obtained at the 

time of the arrest.2Above all, there is the testimony of the Service 

officer respecting the completely voluntary nature of the admissions, 

to establish their lack of connection with the arrest. Under these 

circumstances, under the rule in Wong Sun v. U.S, supra, the admission cannot be rejected out of hand, as the majority has done. 

In summary, the Service has met its burden by a combination of (1) 

the recitations of the documents themselves, (2) the testimony of the 

investigator, (3) the lapse of time, and (4) the removal to a different 

physical location. There is no evidence whatsoever, with respect to 

Exhibits 1, 2, and 3, even in the form of an offer of proof, let alone any 

testimony, that the respondent was in any way influenced by the 

circumstances of the arrest in giving the information in these exhibits. 

2In this respect the ease differs materially from Wong Chung Cho, and Wong Pei Tong 

v. INS, 565 F.2d 166 (1 Cir. 197'7), where the immigration judge had placed heavy reliance 

on a Crewman's Landing Permit obtained from the alien himself at the scene of the 

arrest. 

88 
Interim Decision #2725 

Nothing whatsoever counters the substantial government showing 

that whatever taint there may have been in the arrest, would have 

been purged, and the causal chain, broken. The admissions and exhibits 

must be taken at their fame value.' 

Under this view of the ease, it is not necessary to reach the applicability of the exclusionary rule. Even assuming a Fourth Amendment 

violation, the exhibits were admissible and the government has met its 

burden of establishing aliemage and deportability by clear and convincing evidence, Woodby v. INS, 385 U.S. 276, 285 (1966). I would concur in 

a grant of the privilege of voluntary departure, the only relief for 

which the respondent could be eligible, solely to bring the case, which 

has been pending far too long, to a conclusion. 

II 

Assuming, arguendo, the necessity of examining the arrest, the 

second point of divergence is with respect to the majority finding that 

an illegal arrest has been established. As the majority notes (Dec. page 

4) the facts relating to the challenged "search" were not clearly developed. The evidence as to a claimed illegal arrest consists of the respondent's affidavit in supiort of her motion to suppress (on advice of 

counsel she stood largely mute throughout the hearing) and the testimony of a witness to the arrest. Taking this evidence in its most 

favorable light to the respondent, there is a vagueness in crucial 

details. 

At about 6:00 a.m., when the respondent's husband was preparing to 

go to work, he was alerted. by a telephone call that the Service officers 

were on their way or were in the neighborhood. This was some 15 

minutes before the investigators arrived at the apartment building in 

which the respondent lived with her husband.* We do not know exactly 

what he was told on the phone, but there is at least a reasonable 

possibility that the officers were pursuing a specific lead directly to the 

respondent or her husband or both. This was not developed by either 

side, beyond ascertaining that the officers did not have a warrant of 

arrest. Again, the street entrance to the apartment building, according 

to testimony, was locked. There is evidence that the officers could not 

have gained entry into the building unless they secured permission of 

the caretaker on the first floor, and established in some manner their 

authority to enter. The record is silent in this area. 

The respondent's witness, Jose Sandoval, a nephew of the respondFor what it is worth it will be noted that there is testimony the respondent was not 

held in custody "after she was 'brought to the office" (Tr. -23). It raises an intriguing 

question as to just when custody ceased. 

At the time of the hearing the husband had departed to Mexico (Tr. 42). 
Interim Decision #2725 

ent's husband, testified that the officers entered the apartment, 

knocked on the wall after entering, and identified themselves. Clearly, 

if the officers knocked before entering, this would be inconsistent with 

the representations of their entering "quickly without permission or 

consent." Yet, if their actions were as depicted, why would they knock 

at all? It is unquestioned that there was in fact a knock, raising at least 

the likelihood that they may have requested and received permission 

before entering a crucial area of inquiry if the arrest is to be the 

turning point of the case. The witness at first (Tr. 56) testified that the 

door to the respondent's apartment was locked when the immigration 

officers arrived. Subsequently (Tr. 59), he stated it was not locked. 

Again, this is a crucial point of inquiry. 

No substantial offer of proof was made, or evidence submitted, of 

abusive conduct by the Service officers following the arrest. Those 

present were questioned as to "legal papers." There was no search of 

the person. The search, such as it was, was "under the beds and the 

rooms"—apparently for illegal aliens; nothing was taken from the 

persons or the premises or from the respondent herself. While these 

points are not determinative of the nature of the arrest itself, they do 

tend to negate a picture of a coerced and violent entry and search. All 

of these considerations, coupled with the obvious possibility for misstatement, confusion, or misunderstanding, create substantial doubts 

whether the respondent's allegations as to a Fourth Amendment violation can be taken at their face value. 

The respondent did ask to call the arresting officer to the stand at the 

outset of the hearing. No objection was interposed by the Service trial 

attorney, but the request was denied by the immigration judge as 

premature (Tr. 26). At the time the request was based solely on the 

affidavit of the respondent in support of her motion to suppress. She 

herself at no time testified in support of the affidavit nor did she 

submit herself to examination respecting the circumstances of the 

arrest or what took place afterwards. Instead she chose to rely on the 

testimony of Jose Sandoval. (Tr. 40). Following the testimony of 

Sandoval, both sides rested on the issue of deportability. 5The request 

to subpoena the arresting officer was never renewed, with the result 

that the record is left in the dubious state in which we now find it. 

There was other error below. Either through lack of knowledge of 

the meaning of 8 C.F.R. 242.17(d), or unwillingness to rely on the 

somewhat clouded terminology of that regulation, the respondent not 

only refused to testify with respect to alienage and deportability, but 

Respondent testified to some extent in support of her application for voluntary 

departure, although here too, refusing to answer many questions on 5th Amendment 

grounds. 

90 
Interim Decision #2725 

gave very limited testimony in support of her application for discretionary relief of voluntary departure. In this the immigration judge 

was at least partly to blame in not advising (Tr. 74), that any admissions made in this connection could not be used against her on the issue 

of deportability. This Board has since clarified the interpretation of 

the regulation. An alien may testify freely in support of an application 

for voluntary departure without fear of adverse affect on the case in 

chief. Matter of Bulos, Interim Decision 2486 (BIA 1976). See also 

Matter of Lam, 14 I&N Dec. 168, 173 (BIA 1972); Matter of Tsang,14 

I&N dec. 294, 296 (BIA 1973). 

The majority decision has recognized this deficiency in the record 

and has solved the problem by granting voluntary departure. I would 

concur in that grant, as a practical matter, for the reasons stated in I, 

above, and to bring the case to a speedy conclusion. However, if the 

proceeding has to be remanded for other reasons, as is the case if the 

exclusionary rule issue is to be reached because of a possible Fourth 

Amendment violation, then the question of her eligibility and worthiness for this relief should also be developed fully in reopened proceedings, particularly since Exhibit 2 shows that this is her second entry. 

In light of Matter of Bulos, supra, respondent is now free to testify 

without restraint 

These inadequacies of the record are significant if this case is to be a 

tour de force on the legal issue. It has not been satisfactorily shown 

that the arrest was illegal. At the same time some groundwork has 

been laid. The majority ruling on the inapplicability of the exclusionary rule is, at the very least; premature. That issue involves a complex 

consideration of reach and scope of the Fourth Amendment prohibition against unreasonable search and seizure. It can affect countless 

cases for years to come. Should this case be made the subject of a 

petition for judicial review, as it gives every indication it may, a court 

has the right to know if it needs to reach such an issue, or if the case 

could be disposed of on other, well established and less controversial 

principles. Accordingly, again assuming the dubious necessity for 

meeting the issue, the record should be remanded for full development 

of the circumstances of the arrest, including the testimony of the 

arresting officer and of the respondent should she elect to testify. If, on 

remand, a lawful arrest is proved, the issue can then be met with full 

knowledge of all of the facts, and an appreciation that it is real rather 

than hypothesized.' 

The argument is not convincing that, since the Service has already 

' This also would have the incidental benefit of facilitating evaluation of the quality of 

the Fourth Amendment violation, if any, in accord with the rule in Brown v. Illinois, 

supra. 

91 
Interim Decision #2725 

expressed its view that the exclusionary rule has no applicability in 

these cases, a remand would serve no useful purpose. The Service has 

adopted a similar position as to Miranda warnings, yet they are in fact 

required by regulation, appear in Service forms, and are given, even 

though not judicially mandated. 8 C.F.R. 287.3; Navies-Duran v. INS, 

568 F.2d 803 (5 Cir_ 1977); Trias-Hernandez v. INS, 528 F.2d 366 (9 Cir. 

1975). Either for purposes of this case, or for clarification of the record 

in anticipation of a court challenge, or in defense of Immigration and 

Naturalization Service actions and those of government officers generally, or having in mind possible criminal prosecution in this and in 

other cases, or for other reasons not known to this Board, the Service 

might still prefer to amplify this record. More importantly, a remand 

is required for the sake of the respondent. 

If the respondent's legal position should be examined on judicial 

review, it should not meet with a rebuff solely as a result of her not 

having an opportunity to present significant evidence_ 

III 

Lastly, since this case may well reach the courts in its present 

posture, it is necessary to state a position on the applicability of the 

exclusionary rule in deportation proceedings. 

It is difficult to quarrel with substantial portions of the majority 

decision. The applicability of the exclusionary rule in civil proceedings, 

generally, does appear to be a viable issue. Weeks v. LT. S., 232 U.S. 383 

(1914); Wong Sun v. U.S., 371 U.S. 471 (1963); U.S. v. Janis, 428 U.S. 433 

(1976); cf. Concurring Opinion Chairman Roberts, Matter of Yau, 14 

I&N Dec. 630, 637 (BIA 1974). Concededly too, it has now been established that the deterrent effect of the rule underlies its purpose and 

usefulness. U.S. v. Calandra, 414 U.S. 338 (1974); United States v. Janis, 

supra. 

Some impatience with the application of the exclusionary rule in 

deportation proceedings, is also understandable. In case after case, 

this Board has been confronted with a mute alien and a claim that 

evidence is tainted by a Fourth Amendment violation and hence should 

be excluded. Unlike the instant case, frequently no foundation whatsoever has been laid for such a claim. As Board Member Farb noted in 

his separate concurring opinion, the claims are often advanced in that 

large body of cases involving claimed recent entrants without inspection, as to whom there usually exist no Service records and little 

besides the aliens' own admissions to establish alienage and deportability. In many such cases no affirmative defense to .deportability 

is offered, no offer of proof of improper Service action is advanced, at 

least in correct or substantial form, and a loud outcry is made for 

92 
Interim Decision #2725 

production of the arresting officer, whether his testimony is shown to 

be necessary or not, presumably so that the respondent may lose 

himself, the Service, and this Board, in the thickets of obfuscation and 

delay thus created. 

To the extent that this sort of irresponsible challenge is a by-product 

of holding the exclusionary rule applicable in deportation cases, the 

majority decision is correct. However, that a challenge may be 

mounted irresponsibly, in itself does not justify rejection of the rule as 

a matter of law. Rather, each claim must be met on a case-to-case basis 

with patience and firmness, and with due regard to the merits of the 

given case. The exclusionary rule protects the long time lawful 

permanent resident just as much as the recent entrant without inspection. In any event, it is doubtful that elimination of the exclusionary 

rule will cure these claims. Challenges to the admissibility of evidence 

can always be counted on allegations of duress, coercion, and lack of 

due process. 8 C.F.R. 287.3 bears indigenous seeds for motions to 

suppress for failure to follow correct arrest procedures. As long as this 

regulation remains in the books—and the Service, thankfully, has 

shown no inclination towards removing it—there is always the possibility of a frivolous and purely dilatory challenge to the admissibility 

of evidence_ 

However, the majority decision glosses over, much too lightly, one 

very serious, and perhaps determinative, consideration. It is too late in 

the game for a change of Service or Board position regarding the 

applicability of the exclusionary rule. The fact is that the Immigration 

and Naturalization Service has accepted and applied the rule, as has 

this Board, for many years and in countless cases since the dictum in 

U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155 (1929) that "evidence 

obtained * * * through an illegal search and seizure cannot be made the 

basis of a finding in deportation proceedings." As the majority notes, 

the Board Eas often pointed to untainted evidence in cases involving 

this issue, as the basis for its decision, and has refused to rely on 

evidence which might be flawed by a Fourth Amendment violation. 

See, for example, Matter of Cheung, 13 I&N Dec. 794, 796 (BIA 1971); 

Matter of Wong, 13 I&N Dec. 820, 822 (BIA 1971); Matter oftiemblen, 14 

l&N Dec. 739 (BIA 1974). The published decisions are replete with 

discussion of the admissibility of evidence challenged on the ground of 

illegal arrest and search—discussion which would be surplusage if the 

Board were not applying and following the exclusionary rule. It is 

totally irrelevant that the rule has been followed and applied, sometimes expressly, and sometimes by implication. The rule has been 

followed. There is no question whatsoever that this is the case.' 

A partial list of relevant administrative and judicial decisions is set forth in the 
Interim Decision #2725 

The rule having been accepted and followed for so many years, the 

natural inquiry is—what reason is there for a change now? The 

majority decision fails to answer this satisfactorily. The Service has 

advanced no argument for a change beyond mere reliance on the civil 

nature of deportation proceedings, and advice that, according to a 

memorandum of the Associate Attorney General, the Department of 

Justice is adopting, generally, the rule which the Service is now urging 

upon us. We, of course, are not bound by the enunciation of position of 

the Associate Attorney General. See U.S. ex rel Accardi v. Shaughnessy, 347 U.S. 260 (98 L.Ed. 681, 74 S.Ct. 499). 

Despite the strident debate by legal scholars over its efficacy, the 

exclusionary rule remains the law of the land. To date, nothing in the 

precedents has limited its application to criminal eases. On the contrary, its application to some civil proceedings has been recognized in the 

federal courts. See, for example, Pizzarello v. U.S., 408 F.2d 579 (2 Cir. 

1969), cert. denied, 396 U.S. 986 (1969)—civil assessment of wagering 

taxes; Knoll Associate Inc. v. Federal Trade Commission, 397 F.2d 530 

(7 Cir. 1968) —use of stolen documents by Federal Trade Commission 

barred in civil action; Powell v. Zuckert, 366 F.2d 634 (D.C. Cir. 1966)— 

review of plaintiff's discharge from the Air Force; One 1958 Plymouth 

Sedan v. Commonwealth of Pa.. 380 U.S. 693 (1965) —civil proceeding 

by the state for the forfeiture on an automobile; Rogers v. U.S., 97 F.2d 

691 (1 Cir. 1938)—civil action to recover customs duties on imported 

liquors; U.S. v. Blank, 261 F.Supp. 180 (N.D. Ohio 1966)—civil tax 

assessment; Lassoff v. Gray, 207 F.Supp. 843 (W.D. Kentucky 1962)— 

civil liability for wagering taxes and assessment. See also U.S. v. Janis, 

supra, at 455, 456 and cases there cited. There is also judicial recognition of its use in deportation proceedings, Ex parte Jackson. 263 F.110 

(DC Mont. 1920), appeal dismissed 267 F.1022 (9 Cir. 1920); Schenck ex 

rel Chow Pook Hong v. Ward, 24 F.Supp. 776 (DC Mass 1938); Wang 

Chung Che v. INS, 565 F.2d 166 (1 Cir. 1977); (and see also court cases 

cited in APPENDIX). 

The rationale of these cases is well expreAed in U.S. v. Blank, supra, 

"Where as here there is a correlative civil action open to the Government which imposes a penalty * * * commensurate with the criminal 

sanctions to which as accused, victimized by an illegal search would be 

exposed, then we see rio distinguishable difference between the two 

forms of punishment which excuses the government from complying 

APPENDIX. As is to be expected, the growth in the sophistication of the challenges is 

compatible with that of the judicial rulings. While the references to the Fourth Amendment, "tainted evidence," "fruit of the poisoned tree, the exclusions/7 rolo," and formal 

Motion to Suppress, appear, as such, primarily in the later decisions, the basic underlying challenge to the admissibility of evidence is the same in all of the cited cases, namely, 

that it was procured by a Fourth Amendment violation. 

94 
Interim Decision #2725 

with constitutional mandates when prosecuting their action in a civil 

forum." Id, at 182. While the applicability of the rule in all civil 

proceedings would be highly questionable—and in fact has been 

rejected, U.S. v. Frederickson, 581 F.2d 711 (8 Cir. 1978); U.S. ece rel 

Sperling v. Fitzpatrick, 426 F.2d 1161 (2 Cir. 1970), absent special 

considerations it would seem that a nexus to a criminal sanction 

should reasonably dictate its use. One 1958 Plymouth, Sedan v. Commonwealth of Pa., supra. 

It will be noted that all of the foregoing cases involved intrasovereign violations, a careful distinction drawn in Janis, supra. Their 

precedent force, therefore, is in no way impeached by Janis, a decision 

based on the blunting of the deterrent effect of the rule by the lack of 

interaction between the federal criminal proceeding, and a state civil 

proceeding. Janis, on the other hand, does emphasize the significance 

of the proximity of the deterred action to the result sought to be 

achieved. 

We are concerned here with one Governmental agency and the 

enforcement of a statute narrowly restricted to aliens. The evidence 

supporting the civil deportation case is frequently the same as that 

which may support a criminal proceeding against the same person. 

See, for example, Section 27E I&N Act. 8 U.S.C. 1325 (Illegal Entry). 

The same arresting officer initiates both proceedings and precipitates 

either or both of the results—i.e., civil or criminal. Even with full 

awareness of the many cases rejecting, in a civil deportation proceeding, the constitutional safeguards applicable generally to criminal 

proceedings, one cannot ignore the severe consequences of deportation 

in some cases, and its analogy to a criminal sanction (Fong Haw Tan v. 

Phelan, 333 U.S. 6, 10). Despite the circumscription of such rulings as 

Almeida-Sanchez v. INS, 413 U.S. 266 (1973); Brignoni-Ponce, 422 U.S. 

873 (1975); and U.S. v. Martinez-Fuerte, 514 F.2d 308 (9 Cir. 1975), 

Immigration and Naturalization Service officers have wide latitude to 

arrest without warrant, both in anticipation of criminal proceedings, 

and/or as a precursor to the civil deportation proceedings (Section 287, 

Section 235, I&N Act, 8 U.S.C. 1357 and 1225). 

In essence, civil and criminal proceedings walk hand in hand in 

intrasovereign wedlock. We have, therefore, the two requisites for use 

of the rule in civil proceedings: 1) an intrasovereign relationship, and 

2) a correlative criminal sanction. Under the majority position, the 

government may have a criminal action against an alien for violation 

of section 275 (8 U.S.C. 1325) thrown out because of fatally contaminated evidence, and then turn right around and proceed against him in 

a deportation proceeding of equal or greater consequence, relying on 

the identical evidence. This is wrong. U.S. v. Blank, One 1958 Plymouth 

Sedan v. Commonwealth of Pa., supra. 

95 
Interim Decision #2725 

Underlying the majority decision is the premise that there is something inherent in a civil deportation proceeding, as against a criminal 

proceeding, which makes the application of the rule (a) less necessary, 

and (b) less effective. Neither of these assumptions is acceptable. 

There is inconsistency in the majority reasoning that since the 

exclusionary rule will continue to deter misconduct because criminal 

proceedings may flow from the deportation "arrest," therefore it is not 

necessary to apply the rule to the civil proceedings flowing from that 

arrest. The deportation itself, in some cases, civil or not, is a far more 

serious consequence than the brief imprisonment or negligible fine 

customarily meted out for criminal immigration violations, by the 

courts. If necessary and effective as a deterrent flowing from inability 

to establish the criminal case, it is at least just as necessary as to the 

civil one. 

The Fourth Amendment guards the right of the "people" to the 

security of their homes, property and persons. It is not limited in its 

language either, as to criminal cases or as to citizens.° The exclusionary rule, in turn, links the power Co search and seize with the use of 

incriminatory evidence. Its purpose is to insure that an abuse of one 

takes the profit out of the acquisition of the other. It prevents the 

violation by penalizing the violator. Aborting the consequences of a 

violation is only an incidental result, or, better stated, a means to the 

primary end of curbing. Fourth Amendment violations. 

So long as an abuse of a power to invade privacy and arrest and 

search, might be an integral part. of the gathering of incriminatory 

evidence for use in either a civil or criminal proceeding, as is possible 

in deportation cases, it would seem to make little difference, so far as 

the violation is concerned, if the end result is the use of the evidence in 

a civil, or criminal, proceeding, or both. If anything, looking to the need 

for the rule, it would seem to follow that the less significant the 

objective sought to be obtained by the breach of the constitutional 

imperative, the more reprehensible and needful of restraint or deterrence, is the violation. Certainly nothing in the inherent nature of a 

civil deportation proceeding, even assuming it has less "importance" 

than a criminal ease, supports the conclusion the rule is less necessary. 

Indeed, given the possible lack 01 education of the alien, frequent 

language difficulties, and unfamiliarity with either the law or his 

rights in a strange country, the opposite would seem to be the case. 

"For the inalienable rights of personal security and safety, orderly and due process of 

law, are the fundamentals of soda! compact, the basis of organized society, the essence 

and justification of government, the foundation, key, and capstones of the Constitution. 

They are limited to no man, race, or nation, to no time, place, or occasion, but belong to 

man, always, everywhere, and in all circumstance. Every nation demands them for its 

people from all other nations." Ex parts Yackson, 263 F.110,113. 

96 
Interim Decision #2725 

To evaluate the effectiveness of the rule when applied to deportation 

proceedings, it is necessary to appreciate its rationale. The exclusionary rule is premised on the assumption that the likelihood of aborting 

a prosecution is a sufficiently significant loss to an officer, to deter him 

from violations in the future. The majority, in effect then, is saying 

that the civil deportation proceeding is not sufficiently significant, as 

compared with a criminal proceeding based on the same facts, to bring 

the deterrent effect of the rule into play. 

This too does not withstand examination. On the contrary, if the 

evidence is barred in the civil deportation proceedings, the consequences are grave enough that the deterrent effect is equivalent to that 

in a criminal proceeding stemming from the same breach of the law. 

As for the officer, one possible result of his violation could be, as the 

majority notes, that the illegal alien may be forever in a non-deportable status. At the very least, new proceedings, wasteful of manpower 

and money, and uncertain in result, might have to be begun. This 

should certainly deter a conscientious Service officer from the violation. The conclusion is inevitable that the rationale of the exclusionary 

rule compels its application to this proceeding. 

That there is a paucity of cases terminated because of Fourth 

Amendment violations, is the soundest proof that the Service has been 

able to live more than adequately with the rule and that, as the 

majority noted (Dec. 13), the "societal costs" of the application of the 

rule have been minimal. Indeed, if one is to look to consequences 

(admittedly a questionable basis for decision making), there is probably no better way to facilitate confusion and delay in these cases than 

through the litigious weapon the majority has now forged. Where 

hitherto the Board has patiently examined each of these claims of 

Fourth Amendment violations, their summary rejection as a matter of 

law, can only spawn repeated, unexamined, unrebutted, and, undoubtedly, lurid, claims of abuse. 

In the past the Board has demanded an acceptable, nonfrivolous 

offer of proof as a minimum. Matter of Geronimo, 13 I&N Dee. 680 (BIA 

1971); Matter of Tang, 13 I&N Dee. 691 (BIA 1971); U.S. v. Garcia, 272 

F.Supp. 286 (S.D.N.Y. 1967); Matter of Godfrey, 13 I&N Dec. 790 (BIA 

1971); Matter of Wong, 13 I&N Dec. 820 (BIA 1971). It has relied only on 

clearly untainted evidence. If an immigration judge failed in this 

regard, or misunderstood the position of this Board, the questioned 

evidence was either given no weight, rejected outright, or the case was 

returned so that the record might be clarified as to just what had 

occurred and whether the evidence was tainted or not. See, for example, Matter of Cheung and Matter of Wong, supra. In at least one 

instance where the Board failed to clearly set forth its reasons for 

accepting apparently questionable evidence, it was quickly called to 

97 
Interim Decision #2725 

account. Wong Chung Che v. INS, 565 F.2d 166 (1 Ch. 1977). With this 

screening, the rule has worked, and the frivolous claim has been sifted 

out, generally without too much trouble. On the other hand, the 

occasional nonfrivolous claim, supported by hard facts, has received 

the attention that it deserves. 

In summary, the long standing practice of the Board has been to 

recognize and apply the exclusionary rule. This has been satisfactory 

up to this point, due in part to a screening process which weeds out 

frivolous and irresponsible claims, yet permits scrutiny of substantial 

challenges. No adequate reason for a change in the Board's position 

has been put forth. There is judicial support for the use of exclusionary 

rule in civil proceedings, including deportation proceedings. 

Precedents dictate its use in civil proceedings involving (1) an intrasovereign relationship and (2) a correlative criminal proceeding. 

Deportation is such a proceeding. The reason for the existence of the 

rule dictates its application here, both in the aced for the rule and its 

possible effectiveness as a deterrent. Lastly, experience has shown an 

absence of serious societal costs in the use of the rule in deportation 

proceedings. 

For all of the above reasons I am unable to concur in that portion of 

the majority decision which holds that the exclusionary rule is inapplicable in civil deportation proceedings.' 

Solely for the reasons set forth under Part I of this separate decision, I would find the alien deportable, and would grant voluntary 

departure within 30 days from the date of this order or such further 

extension as might be granted by the District Director. 

APPENDIX 

Matter of B—R—, I&N Dec. 760 (BIA 1952); Matter of D—M—, 6 I&N 

Dec. 726, 729 (BIA 1950; Matter of R—S— , 7 I&N Dec. 271 (A.G. 1956); 

Matter of T—, 9 I&N Dec. 646, 647 (BIA 1962); Matter of Pang 11 I&N 

Dec. 213 (BIA 1965), aff'd sub nom.; Ah Chiu Pang v. INS, 368 F.2d 637 

(3 Cin 1066), cert. denied, 386 U.S. 1037; Matter of Chen, 12 I&N Dec. 

603 (BIA 1968); Matter of Yam, 12 I&N Dec. 676 (BIA 1968), aff'd, Yam 

Sang Kwai v. INS, 411 F.2d 683 (D.C. Cir. 1969), cert. denied, 396 U.S. 

877; Matter of Doo, 13 I&N Dec. 30 (BIA 1968); Matter of Methure, 13 

I&N Dec. 522 (BIA 1970); Matter of Lane,13 I&N Dec. 632 (BIA 1970); 

• There may be alternatives (Dec. P.14ff). They may or may not be effective. Clearly, 

their existence does not compel rejection of the present remedy. Employee complaints to 

the Service might seem of questionable effectiveness; and the parameters of Bivens v. 

Six Unknown Narcotics Agents, 403 U.S. 388 (1971), and not yet fully known. 

98 
Interim Decision #2725 

Matter of Yau, 14 I&N Dec. 630 (BIA 1974); Matter of Scavo, 14 I&N 

Dec. 326 (BIA 1973); Matter of Tsang, 14 I&N Dec. 294 (BIA 1973); 

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

Dec. 691 (BIA 1971); Matter of Au, Yam, and Lam, 13 I&N Dec. 294 

(BIA 1969); aff'd, Au Yi Lau v. INS, 445 F.2d 217. (D.C. Cir. 1971), cert. 

denied, 404 U.S. 864; Matter of Burgos and Burgos-Goeloy, Interim 

Decision 2375 (BIA 1975); Matter of Chen, Interim Decision 2440 (BIA 

1975), kifi'd Nai Chew Chen v. INS, 537 F.2d 566 (1 Cir. 1976); Matter of 

.Rojas, Interim Decision 2444 (BIA 1975) Matter of Bulos, Interim 

Decision 2486 (BIA 1976); Matter of Rojas, Interim Decision 2510 (BIA 

1976); Matter of Davila, Interim Decision 2621 (BIA 1976); Matter of 

Mejia, Interim Decision 2527 (BIA 1976); Matter of Gonzalez, Interim 

Decision 2536 (BIA 1976); Matter of Escobar, Interim Decision 2538 

(BIA 1976); Matter of Castro, Interim Decision 2547 (BIA 1976); Matter 

of Baltazar, Interim Decision 2556 (BIA 1971); Matter of Cachiguango 

and Torres, Interim Decision 2582 (BIA 19'77); Matter of Taerghodsi, 

Interim Decision 2596 (BIA 1977); Matter of King and Yang, Interim 

Decision 2647 (BIA 1978). 

See also Klissas v. INS, 361 F.2d 529 (D.C. Cir. 1966); Vlissidis v. 

Anadell, 262 F.2d 398 (7 Cir. 1959); Ho Chong Tsao v. INS, 538 F.2d 667 

(5 Cir. 1976); Aguirre v. INS, 553 F.2d 501 (5 Cir. 1977); Cordon de 

Rum) v. INS, 554 F.2d 944 (9 Cir. 1977); Hconsilapa v. INS, 575 F.2d 

735 (9 Cir. 1978); Cheung Tin Wong v. INS, 468 F.2d 1123 (D.C. Cir. 

1972); Skit Fuk Cheung v. INS, 476 F.2d 1180 (8 Cir. 1973); Hv,erta, 

Cabrera v. INS, 466 F.2d 759 (7 Cir. 1972); Ojeda-Vinales v. INS, 523 

F.2d 286, 287-288 (2 Cir. 1975); Illinois Migrant Council v. Pilliod, 548 

F.2d 715 (7 Cir. 1977); modifying, 540 F.2d 1062 (7 Cir. 1976); Marquez v. 

Kiley, 436 F.Supp. 100 (S.D.N.Y. 1977); Shan Gan Lee v. INS, 590 F.2d 

497 (3 Cir. 1979). 

99