MATTER OF T— 

In DEPORTATION Proceedings 

A-11465252 

Decided by Board May 8, 1962 

L eportability—Section 241(a)(4)—Single scheme—Fair hearing—Admissibility 

of preliminary statement—Limitation of cross-examination. 

(1) Where respondent stood mute, Government has met its burden of establishing by competent evidence mat the two crimes committed did not arise 

out of a single scheme of criminal misconduct by introduction of respondent's preliminary statement and court records of his convictions. 

(2) Respondent's preliminary statement under oath, which was voluntarily 

made, is properly admissible in evidence. 

(3) Curtailment of counsel's cross-examination of Government witness when 

it became apparent that the line of questioning was directed to the witness' 

motives and other circumstances concerned with respondent's arrest did not 

render nearing Unralr, Inasmuch as substantial and probsti -e evidence of 

deportability had already been introduced into the record. 

(4) Alleged atmosphere of tension created by respondent's refusal to testify 

or be sworn did not result in unfair hearing. 

CuAaos: 

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—After entry 

convicted of two crimes involving moral turpitude not arising out 

of a single sehemp of criminal misconduct, to wit: attempted petit 

larceny and attempted petit larceny. 

BEFORE THE BOARD 

DISCUSSION: The respondent appeals from an order entered by 

the special inquiry officer on December 26, 1961, directing his deportation as an alien convicted of two crimes involving moral turpitude 

and not arising out of a single scheme of oriminal misconduct, to 

wit, attempted petit larceny and attempted petit larceny (8 U.S.C. 

1251(a) (4) ). A memorandum of law in support of the appeal urges 

procedural and substantive error_ 

The respondent concedes that he is the person named in the order 

to show cause. He stood mute on advice of counsel when questioned 

concerning alienage and deportability. Documentary evidence introduced during the course of the hearing establishes that the respondent is a native and citizen of Germany, male, unmarried, 25 years 

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of age, who last entered the United States as an immigrant through 

the port of New York on September 3, 1958. Exhibits 3, 4, 5 and 7 

are certified records of the respondent's conviction on two occasions 

in the Court of Special Sessions of New York City for attempted 

larceny. The offenses were committed on May 1, 1961, and July 23, 

1961, and involved the attempted larceny of property belonging to 

one F—. 

Counsel maintains that the finding of deportability is not supported by credible, substantial and probative evidence in that the 

documents involved and respondent's preliminary statement were 

improperly admitted over counsel's objections. Exhibit 6 is a sworn 

statement taken from the respondent on November 14, 1961. The respondent agreed to make the statement voluntarily under oath (p. 1 

of Exh. 6). 8 CFR 242.14(c) provides, in substance, that a special 

inquiry officer may receive in evidence any oral or written statement previously made by the alien and relevant to the issue before 

him. We find no error on the part of the special inquiry officer in 

admitting in evidence the recorded statement and other documents 

material to the issue of deportability. Cf., United States ex rel. 

Impasta.tov. O'Rourke, 211 F.2d 609 (C.A. 8, 1954), cert. den. 348 

U.S. 827 (1954). 

Counsel urges prejudicial error in that the special inquiry officer 

arbitrarily curtailed cross-examination of the Government's witness 

which sought to develop the illegality of the respondent's arrest 

without a warrant. We have carefully reviewed that portion of 

the record concerned with the respondent's arrest without a warrant. Counsel was allowed wide latitude in cross-examining the 

immigration officer on the subject of whether any evidence was obtained by unlawful search and seizure. Counsel's cross-examination 

was curtailed only when it became apparent that his line of questioning was directed to developing whether there was credible testimony on the part of the Government's witness with regard to the 

alien's arrest without a warrant. Inasmuch as substantial and probative evidence of deportability had already been introduced into 

the record, no error was committed when the special inquiry officer 

limited counsel's repeated attempts to cross-examine the Government's witness on his motives and other circumstances concerned 

with the respondent's arrest (8 CFR 242.8, and see Kielema v. Crossman, 103 F.2d 292 (C.A. 'fax., 1939)). 

Counsel's brief charges tlhat the reaction of the special inquiry 

officer to respondent's refusal to testify or be sworn created an 

atmosphere of tension and autugunisni which as a matter of due process and policy require a reversal of the order of deportation. A 

deportation proceeding is civil rather than criminal and the fact 

that an alien claims privilege against self-incrimination does not 

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grant him privilege with respect to his identity and the burden of 

showing the time, place and manner of his entry into the United 

States (8 U.S.C. 1361; cf., Vlieidi8 v. Hollaaa, 150 F. Supp. 678, 

aff'd 245 F.2d 812 (C.A. 3, 1957)). 

We note that counsel made no attempt during the course of the 

hearing to have the special inquiry officer disqualify himself. Under 

the circumstances, it is not proper for him to raise this issue on 

appeal. The fact that the record created amounts to 112 pages, notwithstanding the fact that the respondent stood mute, is not persuasive of a finding that the respondent was denied due process of law 

by reason of the special inquiry officer's antagonism or hostility. 

Counsel urges error in the finding that the two crimes committed 

by the respondent did not arise out of a single scheme of criminal 

misconduct. He argues that under precedent court decisions 1the 

burden is upon the Government to establish that the offenses did not 

arise out of a single scheme of criminal misconduct and that the 

Government has made no attempt to meet this burden. Counsel cites 

the case of Woad v. Hay (supra 1 ) as authority for his argument. 

We agree with counsel that the burden is upon the Government to 

establish by competent evidence that the two crimes did not arise 

out of a single scheme of criminal misconduct. Inasmuch as the respondent stood mute, this burden was met by the best evidence 

available, namely, respondent's preliminary statement and the court 

records of his conviction. 

The case before us is distinguishable from the Woad case, cited by 

counsel (supra 1 ). The only evidence on the subject of single scheme 

in the Wood case was the alien's testimony that there was an agreement to participate in two robberies which were subsequently 

committed. The Government made no attempt to impeach the alien's 

testimony. 

Here the alien has stood mute. Apparently the court recognized 

that such a situation could arise because it said: 

It may he that in some cases the proof of the commission of two crimes 

may be the very nature of the crimes themselves, or the time or circumstances 

of their commission, be reasonable, substantial and probative evidence that 

they did not arise out of a single scheme of criminal misconduct , (Wood v. 

Hop, supra, at page 831) 

The respondent's testimony at pages 4 and 5 of his statement 

(Exh. 6) is affirmative evidence that two separate and distinct, crimes 

were committed by the respondent and that the crimes were not the 

end result of a preconceived plan. The special inquiry officer has 

fully evaluated this evidence and finds that deportability is established. We find no error on the part of the special inquiry officer 

1Wood v. Huy, 200 F.2d 825 (CA. 0, 1959) ; Khoury v. Hoy (unreported 

S.D. Cal., 1959) ; Zito v. Moutal, 174 F. Supp. 531 (D.C. 111., 1959) ; Jeronirti 

v. Muff, 157 F. Supp. 808 (S.D. N.Y., 1957). 

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We find no basis for reversing the special inquiry officer's order 

and remanding the case for a hearing de novo. The respondent was 

represented by counsel of his own choosing. He was given a full 

opportunity to testify in his own behalf. He declined this opportunity and made no effort to rebut the evidence introduced by the 

Government. The opportunity thus afforded him and the proof 

offered by the Government comply in all respects with the statutory 

requirements set forth in 8 U.S.C. 1252(b). The respondent's failure 

to present evidence in his own behalf and to rebut that proffered by 

the Government does not render the hearing unfair or deprive him of 

due process in any respect. The conclusion of the special inquiry 

officer is supported by reasonable, substantial and probative evidence. 

The appeal will be dismissed. 

ORDER: It is directed that the appeal be and the same is hereby 

dismissed. 

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