Interim Decision #2538 

MATTER OF ESCOBAR 

In Deportation Proceedings 

A-21299769 

Decided by Board October 18, 1976 

Where the evidence establishing deportability was not obtained as a result of respondent's 

arrest, a claim of illegal arrest is not relevant to the proceedings; hence, counsel's 

motion for pre-hearing discovery seeking evidence that respondent's arrest was illegal, 

was properly denied since he failed to establish that the evidence sought was "essential" 

within the meaning of 8 C.F.R. 287.4(a)(2). 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)J—Entered without inspection 

ON BEHALF OF RESPONDENT: Richard Eiden, Esquire 

5932 Stafford Avenue 

Huntington Path, California 140255 

In a decision dated July 13, 1975, the immigration judge found the 

respondent deportable as charged, denied his application for voluntary 

departure under section 244(e) of the Immigration and Nationality Act, 

and ordered his deportation to Guatemala. The respondent has appealed 

from that decision. The appeal will be dismissed. 

The respondent, a native and citizen of Guatem ala, has been charged 

with deportability as an alien who entered the United States without 

inspection under section 241(a)(2) of the Act. At the hearing counsel 

submitted a Motion for Pre-Hearing Discovery in which he requested 

that the Immigration and Naturalization Service make available and 

permit the inspection and copying of records in its possession relating to 

the respondent's arrest. The immigration judge denied the motion. The 

respondent then admitted the truth of the allegations in the Order to 

Show Cause and conceded his deportability. 

The immigration judge denied the application for voluntary departure 

as a matter of discretion. Based on the respondent's testimony at the 

hearing, the immigration judge found that the respondent had gained 

entry into the United States with the aid of a professional smuggler. He 

concluded that such evidence adversely affects an application for volun52 
Interim Decision #2538 

tary departure. Unable to discover any equities in the respondent's 

behalf to overcome this adverse factor, he denied the application. We 

agree with his conclusion. See Matter of Rojas, Interim Decision 2444 

(BIA 1975). 

Counsel for the respondent contends that the respondent was denied 

his right to due process in these proceedings. He bases his argument on 

the fact that the immigration judge denied counsel's motion for discovery. The immigration judge denied the motion on two grounds: (1) 

that it appeared to be a belated request for pre-hearing discovery and 

(2) that it had not been established that the evidence requested was 

essential to the proper resolution of these proceedings. 

The type of discovery requested by counsel is covered by regulation. 

Under 8 C.F.R. 287.4(a)(2) an immigration judge may issue subpoenas 

requiring the attendance of witnesses or the production of documentary 

evidence or both subsequent to the commencement of the proceedings. 

According to the regulation, "The party applying for a subpoena shall be 

required, as a condition precedent to its issuance, to state in writing or 

at the proceeding what he expects to prove by such witnesses or 

documentary evidence, and to slum affirmatively that he has made 

diligent effort without success to produce the same. Upon being 

satisfied that a witness will not appear and testify or produce documentary evidence and that his evidence is essential, the . . . special inquiry 

officer shall issue a subpoena." 

Counsel at the hearing asserted that he expected to show by the 

evidence sought that the respondent's arrest was illegal and that, without access to Service records, he would be unable to make such a 

showing. 

A claim of illegal arrest is not relevant to these proceedings where the 

evidence establishing the respondent's deportability was not obtained 

as a result of the arrest. See Guzman-Flores v. INS, 495 F.2d 1245 (7 

Cir. 1974); Klissas v. INS, 361 F.2d 529 (D.C. Cir. 1966). Nor is the 

alien's mere physical presence "evidence" which may be suppressed in 

the event the arrest was illegal. Guzman-Flores v. INS, supra. The 

record in the present ease contains no evidence which was obtained as a 

result of the respondent's arrest. We therefore_ conclude that counsel 

failed to establish that the evidence sought was "essential" within the 

meaning of 8 C.F.R. 287.4(a)(2). Accordingly, the denial of the motion 

for discovery was correct. 

The appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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