Interim Decision #2451

MATTER OF LI

In Deportation Proceedings
A-1589247

Decided by Board November 20, 1975
Respondent's deportability under section 241(a)(1) of the Immigration and Nationality Act
as one excludable at entry because previously deported and not granted permission to
reapply is established by clear, convincing and unequivocal evidence where the record
contains a warrant of deportation and a Form 1-294 (Notice of Country to which
Deportation Has • Been Directed and Penalty for Reentry Without Permission) both
issued in 1968 to an alien with the same name as that of respondent, and respondent,
after stating his name, refused to testify, and has offered no evidence to show that he
had been granted the requisite permission to reapply prior to his reentry into this
enuntly

CHARGE:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of
entry--previously deputed —no permission to reapply after

deportation
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Robert Foley, Esquire
4002 W. Underwood Street
Chevy Chase, Maryland 20015
Counsel of record:
Joseph F. O'Neal, Esquire
100 State Street
Boston, Massachusetts 02109

John 1VHdanek
Appellate Trial Attorney

In a decision dated May 14, 1975, the immigration judge found the
respondent deportable as charged, denied his application for voluntary
departure, and ordered his deportation to Hong Kong. The respondent
has appealed from that decision. The appeal will be dismissed.
Deportation proceedings were instituted against the respondent
under section 241(a)(1) of the Immigration and Nationality Act as an
alien who, having been previously deported, entered without permission and thereby became excludable at entry. After stating his name
and indicating that he understood the charge being brought against him,
the respondent refused to testify as to his deportability. Counsel for the
respondent contends that the order of deportation is based upon evi514

Interim Decision #2451
dente obtained as the result of an illegal interrogation and arrest and,
therefore, is invalid.
Although evidence actually seized during an arrest may be suppressed in a criminal proceeding, the mere fact of an illegal arrest has no
bearing on a subsequent deportation proceeding. U.S. ex rel.
Bilokumsky v. Tod, 263 U.S. 149 (1923); Guzman-Flores v. INS, 496
F.2d 1245 (C.A. 7, 1974); La Franca v. INS, 413 F.2d 686 (C.A. 2,
1969). Inasmuch as we will limit our consideration to that evidence
which was in the possession of the Service prior to the apprehension of
the respondent, we need not discuss the legality of the respondent's
arrest. See Matter of Yau, 14 I. & N. Dec. 630 (BIA 1974).

The record before us contains a Warrant of Deportation and a Form
1-294 (Notice of Country to which Deportation Has Been Directed and
Penalty for Reentry Without Permission), both issued in 1968 to an
alien with the same name as that of the respondent. From the identity of
names and the respondent's failure to show otherwise, we may infer
that these documents relate to the respondent and establish that he was
previously deported from the United States. See Vlisidis v. Holland,
245 F.2d 812 (C.A. 3, 1957); Williams v. Mulcahey, 250 F.2d 127 (C.A.
6, 1957); 'Manor of Chasing, 12 L & N. Der_ 794 (BIA 1971). The
respondent thereafter reentered the United States. The burden is upon
the respondent to show that he had received permission to reenter as
required by section 212(a)(17) of the Act. Solis-Davila v. INS, 456 F.2d
424 (C. A. 5, 1972). The respondent refused to answer when questioned
on this issue at the hearing and has offered no evidence to show that the
requisite permission had been obtained prior to his reentry. We conclude that his deportability has been established by clear, convincing
and unequivocal evidence.
The respondent also refused to answer certain questions pertaining to
his application for voluntary departure, and, as a consequence, the
immigration judge denied the application. We agree with the immigration judge's conclusion that the respondent's silence prevented a full
examination of his statutory eligibility for the relief of voluntary departure. Furthermore, after a complete review of the record, we agree that
the respondent has not shown that he merits a favorable exercise of
discretion. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

515


Interim Decision #2077

MATTER OF GERONIMO
In Deportation Proceedings
A-18924288
Decided by Board March 5, 1971
(1) Determination as to the institution of deportation proceedings against a
deportable alien lies within the province of the District Director. Where
deportation proceedings have been instituted, it is not within the province
of the special inquiry officer, nor the Board of Immigration Appeals on
appeal, to review such action but to determine whether deportability is established by evidence which is clear, convincing and unequivocal.
(2) Allegations of misconduct against Service personnel and respondent's
former attorney made on appeal in deportation proceedings and based on
matters outside the administrative record, should not be casually asserted
but should be specified and stated under oath.

CHARGE:
Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Nonimmigrant visitor—remained longer than permitted.

This is an untimely appeal from a decision of a special inquiry
officer, finding the respondent deportable on the above-stated
charge and granting her the privilege of voluntary departure. We
shall consider the case on certification under 8 CFR 3.1 (d).
Respondent is a 24-year-old unmarried female, native and citizen of the Philippines, who was admitted to the United States as
a nonimmigrant visitor for pleasure on October 4, 1969 and has
remained longer than permitted. At a deportation hearing on
January 22, 1971, at which she was represented by counsel, she
admitted the factual allegations of the order to show cause and
conceded deportability. On the same day, the special inquiry
officer granted her the privilege of departing voluntarily on or before February 22, 1971. Respondent thereafter retained present
counsel, whose notice of appeal in her behalf, though dated January 29, 1971, was not filed until February 5, 1971.
In his notice of appeal and supporting brief, present counsel
seeks reversal on the basis of factual allegations outside the ad6R0

Interim Decision #2077
ministrative record. In substance, the brief asserts that respondent obtained her visitor's visa through travel agents in the
Philippines who, without her knowledge, had falsified her visa
application and passport; that following entry, on April 1, 1970
respondent filed a third preference visa petition, which has been
approved by the District Director; that respondnet, on interview
by Service investigators, gave a detailed statement as to her visitor's visa; that the District Director, contrary to his usual policy,_
declined to permit respondent to remain in the United States
until a quota number became available, but instead instituted
these deportation proceedings against her. The brief asserts that
respondent's former counsel failed at the deportation hearing to
raise a defense based on the allegedly improper actions of the
District Director and the Service investigator.
The assertion that the District Director abused his discretion
in refusing to permit the respondent to remain in the United
States after approval of her visa petition presents no defense cognizable in these deportation proceedings. It is within the District
Director's prosecutive discretion whether to institute deportation
proceedings against a deportable alien or temporarily to withhold
such proceedings. Where such proceedings have been begun, it is
not the province of the special inquiry officer (or of this Board on
appeal) to review the wisdom of the District Director's action in
starting the proceedings, but to determine whether the deportation charge is sustained by the requisite evidence. Our review of
this record satisfies us that deportability has been established by
evidence which is clear, convincing and unequivocal. The allegations which present counsel now makes with respect to the District Director raise no proper defense to the deportation charge.
Respondent's former attorney was not remiss in not attempting
to put forward such an untenable defense.
The second point asserted in the notice of appeal is that the respondent's failure to develop at the hearing the facts of her victimization by the Philippine travel agents deprived her of the opportunity to leave voluntarily. Since the special inquiry officer did
in fact grant respondent the privilege of voluntary departure, we
'fail to see how she has been prejudiced by the failure of her former attorney to burden the record with the irrelevant details of
her alleged deception by her travel agents.
The third ground for appeal in the notice of appeal is stated
thus: "Immigration Service through their threats and misleading
statements to induce alien and her former counsel to present no
real defense to the charges in the hearing." This statement is not

681

Interim Decision #2077
merely ungrammatical. If untrue, it is irresponsible. Grave
charges such as these, made against Service personnel and respondent's former attorney, and obviously based on matters outside the administrative record, should not be casually asserted in
an unsworn allegation if they are seriously urged. The facts
should be specified and stated under oath, subject to the penalties
of perjury. If not seriously urged, such charges should not be asserted at all.
We do not know what, if anything, happened outside the administrative record now before us. Our careful review of that rec)rd satisfies us that the special inquiry officer conducted a fair
tearing, properly found the respondent deportable as charged,
Ind accorded her the privilege of voluntary departure, the only
orm of discretionary relief from deportation for which respondnt is eligible. If present counsel feels that additional voluntary
'eparture time is needed, he has an adequate remedy in an appliation to the District Director under 8 CFR 244.2. In support of
hat application he may present such proofs as he may deem apropriate, including the evidence of respondent's alleged good
iith in obtaining the visa, etc.
ORDER: The decison of the special inquiry officer is affirmed.
It is further ordered that, pursuant to the special inquiry
ficer's order, the respondent be permitted to depart from the
nited States voluntarily within 31 days from the date of this
der or any extension beyond that time as may be granted by
e District Director; and that, in the event of failure so to de.rt, the respondent shall be deported as provided in the special
4uiry officer's order.
.

682


Interim Decision #2501

MATTER

OF MUNG1UIA

In Section 248 Proceedings
A-21155436

Decided by Regional Commissioner June

21, 1976

An application filed under section 248 of the Immigration and Nationality Act to change
nonimmigrant status from that of a visitor for pleasure to that of a student as defined in
section 101(a)(15)(F)(i) of the Act is denied in the case of a 14-year-old alien who seeks
such change in order to enroll in a course of cosmetology in the State of Louisiana
because the laws of that state require that a person must be at least 15 years and 3
months of age at the time of entry into a licensed school of cosmetology.
ON BEHALF OF APPLICANT:

Eugene Barriffe, Jr.
Attrwriay at Law

1020 St. Andrew
, New Orleans, Louisiana 70130

The applicant is a single, 14-year-old native and citizen of Honduras.
She was admitted to the United States on March 15, 1976, as a visitor
fOr pleasure, with authorized stay until April 14, 1976. Her application
for change of nonimmigrant status was filed on April 7, 1976. Attached,
was a Certificate of Eligibility, Form 1-20, reflecting enrollment in a
one-year course of study in cosmetology in Louisiana. Also submitted
was an

affidavit of support from a resident alien cousin of applicant, and

evidence that the cousin is employed as a cashier at $2.50 per hour.
The application was denied by the district director on grounds that
the Louisiana State Board of Cosmetology prohibits the enrollment of
cosmetology students who are less than 15 years and 3 months of age;
that the application was an attempt to prolong the stay of applicant in
the United States; and that insufficient evidence of financial support had
been submitted.
On appeal, Counsel for applicant submitted a statement from applicant's mother, in which the care and custody of applicant while in the
United States was given to the husband of applicant's cousin. Also
submitted was a further affidavit of support from the present guardian
of applicant guaranteeing her financial support, and reflecting he has an
annual income of $9,000.00. The affidavit also reflects the afflant has a
spouse and two minor children, ages 3% and 1 year, dependent upon him
for support.

Section 248 of the Immigration and Nationality Act, reads, in part:
698

Interim Decision #2501
"The Attorney General may, under such conditions as he may prescribe, authorize a
change from any nonimmigrant classification to any other nonimmigrant classification. . ." (Emphasis supplied.)

The proceedings, including the material submitted on appeal have
been carefully reviewed. Although new assurances of financial support

were submitted, the sponsor does not have three other persons dependent upon him for support. Further, the record reflects that the fee of
fifty dollars for filing the appeal was paid by the use of two checks, one of
which was from a legal assistance group, a service for indigent persons.
Failing a satisfactory explanation of why a social service for indigent
persons paid a part of the required fee, it must be assumed that the
affidavits of support cannot be taken at face value, and that ground of
denial must stand.
The charge that the filing of this application was a device to prolong
the stay of applicant is without foundation, and it must be discounted as
a supposition.
Finally, the remaining question to be resolved is whether or not the
age requirements of the Louisiana State Board of Cosmetology are an
issue here. The prohibition of the Board is based upon Tart. B, Section
37502, of the Cosmetology Act of the State of Louisiana, which states in
part, that a person must be at least 15 years and 3 months of age at the
time of entry into a licensed school of cosmetology_ This requirement is
based upon Part A of the same Section, which requires a person to be at
least 16 years of age to be eligible for licensing examination. The
Occupational Outlook Handbook of the United States Department of
Labor reflects that cosmetologists shampoo, cut, set, straighten, bleach
and tint hair. They also may give manicures and scalp and facial treatments. Since some of the functions performed by a cosmetologist could
cause long term harm to a patron if not intelligently and properly
performed, safeguards for the patron in the form of restrictive measures, were incorporated into the Cosmetology Act and they should be
upheld. Further, this Service does not condone any violation of Federal,
State, or Municipal ordinance by an alien in the United States, and to
approve the application would in effect do just that. I must conclude that
the decision of the district director was correct and proper, and that
decision will be affirmed.
ORDER: It is ordered that the decision of the district director is
affirmed and the appeal is dismissed herewith.
-

699


Interim Decision #2573

MATTER OF ABEBE
In Exclusion Proceedings
A-22126130

Decided by Board March 30, 1977
(1) Applicant applied for admission as a student. He had no visa or other valid entry
document and his only travel document was a refugee travel document issued by the

Government of Kenya. He was paroled into the country under section 212(d)(5) of the
Immigration and Nationality Act for further inspection. His exclusion proceeding was
postponed pending an asylum hearing. Asylum was denied; the applicant was ordered
excluded, and he appealed.
(2) 8 C.F.R. 108.2 requires departure to be withheld for 30 days after notification of the
Department of State of the filing of an application for asylum. It does not require the
exclusion hearing itself to be so delayed.
(3)Since the Kenya refugee travel document was not issued pursuant to 8 C. F. R. 223a.2, it
was not a refugee travel document as contemplated in Service regulations and 8 C.F.R.
236.3(e) which provides that certain holders of refugee travel documents may not be
excluded was not applicable.
(4)Since applicant was paroled into the United States under section 212(d)(5) of the Act,
he was not "lawfully in" the United States and therefore Article 32 of the Protocol
Relating to the Status of Refugees did not apply to him.
EXCLUDABLE:
Act of 1952—Section 212(aX20) 18 U.S.C. 1182(a)(20)j —Immigrant —no visa
Act of 1952—Section 212(a)(26) [8 U.S.C. 1182(a)(25)]—Nonimmigrant student
nonimmigrant visa

Kaplan, Esquire
Greater Boston Legal Services
793 Tremont Street
Boston, Massachusetts 02118

ON BEHALF OF APPLICANT: Harvey

BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman,

Board Members

In a decision dated November 19, 1976, the applicant was found
excludable as an alien seeking to enter the United States to study
without a nonimmigrant visa or any other valid entry document. The
applicant has appealed from the decision of the immigration judge. The
appeal will be dismissed.

The applicant is a 22-year-old native of Ethiopia. He fled to Kenya in
171

Interim Decision #2573
July 1976, apparently fearing persecution for political reasons. He was
granted a refugee travel document by the Government of Kenya pursuant to the U.N. Convention Relating to the Status of Refugees of
1951. On August 17, 1976, he arrived in New York seeking admission as
a student. He was paroled into the United States for inspection in
Boston_ He was thereafter placed in exclusion proceedings.
On October 8, 1976, the applicant appeared before the immigration
judge and stated that he wished to file an application for political asylum
in the United States. In accordan c e with Operations Instructions
108.1(c), the exclusion hearing was postponed until the District Director

issued his decision on the asylum request. On November 1, 1976, the
District Director denied the applicant's request for asylum and informed
him that the exclusion hearing would be held on November 19.
Counsel for the alien contends that the District Director denied his
client's request for asylum because be incorrectly assumed that the
applicant could return to Kenya. It is alleged that the District Director
should have considered whether the applicant would be subject to
persecution if he is forced to return to Ethiopia.
Counsel presumably recognizes that no appeal lies from the decision
of the District Director upon a request, fur asylum. 8 C.F.R. §108.2. He
instead argues that the immigration judge did not have jurisdiction in
the exclusion proceeding because of the alleged failure of the District
Director to make a proper derision upon the request for asylum. WP

reject this argument. We also reject counsel's contention that 8 C.F.R.
§108.2 requires the immigration judge to wait for 30 days following the
date when the District Director notified the Department of State of his
decision upon the request for asylum before commencing the exclusion
hearing. That regulation only states that "departure shall not be enforced until 30 days following the date of notification." The conduct of an
exclusion hearing obviously precedes and is distinct from the enforcement of departure.
Counsel also contends that the alien was not excludable because of 8
C.F.R. §236.3(e). That regulation states, in pertinent part:
Aliens who are the holders of valid unexpired refugee travel documents may be
ordered excluded only if they are found to be inadmissible under section 212(a)(9), (10),
(12), (22), (27), (28), (29), or (31) of the Act, and it is determined that on the basis of the
a.ets for which they are inadmissible there are compelling reasons of national security or

public order for their exclusion.

Counsel recognizes that 8 C.F.R. §223a.2 defines "refugee travel
document" as "a document issued by the Service on Form 1-571 in
implementation of Articles 28 of the U.N. Convention of July 28, 1951,
ancl in accordance with the provisions of this part."
The applicant's refugee travel document was issued by the Government of Kenya, not by the Service.
172

Interim Decision #2573
Nevertheless, counsel contends that the Service must recognize the
refugee travel document issued in Kenya as the equivalent of one issued
by the Service. Counsel argues that this is compelled by the U.N.
Convention of 1951 which the United States adhered to when it signed
the Protocol Relating to the Status of Refugees of 1967.
Counsel particularly cites Article 32 of the Convention, which provid's: "The Contracting States shall not expel a refugee lawfully in
their territory save on grounds of national security and public order."
(Emphasis added.)

It is obvious that the applicant is not "lawfully in" the United States.
Since he was paroled into the United States, he is not even "in" this
country for purposes of immigration law, much less "lawfully in." Section 212(d)(5) of the Immigration and Nationality Act. Leng May Ma v.
Barber, 357 U.S. 185 (1958); Kaplan v. Tod, 267 U.S. 228 (1925); Low v.
Attorney General, 479 F.2d 820 (9 Cir.), cert. denied 414 U.S. 1039

(1973); Luk v. Rosenberg, 409 F.2d 555 (9 Cir.), cert. dismissed 396 U.S.
801 (1969).
Counsel's interpretation of Article 32 of the Convention has been
repeatedly rejected. Chim Ming v. Marks, 505 F.2d 1170 (2 Cir. 1974);
Kan Kam Lin v. Rinaldi, 361 F. Supp. 177 (D. N.J. 1973), aff'd 493
F.2d 1229 (3 Cir. 1974); Matter of Dunar, 14 I. & N. Dec. 310, 315-16
(BIA 1973).
ORDER: The appeal is dismissed.

173


MArIER OF

A—

In SECTION 245 Proceedings
A-8833595

Decided by Regional, Commi.s.sioncr
Approved by Assistant Commissioner May

4, 1961

Adjustment of status—Section 245 of act—Discretionary denial.

of status under section 245 of the Act Is denied In the exercise
of discretion to a former official of a foreign government accused by that

Adjustment

o , eromeol of inisappi - opciating its funds, whose continuf-d presence in

thin

country, in the opinion of the Department of State, would create an irritating factor in the relations between the United States and such foreign
government.
BEFORE THE REGIONAL COMMISSIONER

DISCUSSION: The applicant, a 30-year-old married male, native
and citizen of the United Arab Republic, was last admitted to the

United States on September 18, 1953, as a nonimmigrant student.
Upon completion of his studies he accepted employment with the
Consulate General of the United Arab Republic at New York. On
February 28, 1959, he was transferred to the Ministry of Foreign
Affairs, Cairo, and was ordered by his government to return home.
He did not depart and on March 26, 1959, he filed this application
for status as a. permanent resident.

Shortly thereafter, the accredited representative of the United
Arab Republic at New York notified this Service that the applicant had been accused of misappropriating consular funds while
serving as Chancellor of the Consulate General of the United Arab
Republic at New York. There are incorporated into the record
letters from the Consul General of the United Arab Republic at.

New York, with transcripts of certain proceedings before that officer, concerning the allegation. The applicant was advised of the
accusation made against him and was afforded an opportunity to
A {tor congideration of the
entire record, the District Director found that the application did
not warrant favorable exercise of the Attorney General's discretion
and on April 29, 1960, entered an order denying the application.
An appeal was taken to the Regional Commissioner and on June 27,
nanko a statement in answer thereto.

249

1960, that officer affirmed the decision of the District Director, An
action was then filed in the United States District Court for the
District of Columbia, for a declaratory judgment, Pursuant to
stipulation by both parties, the matter was remanded to the Service
for further administrative action.
The application has nowbeen reopened and reconsidered by the
District Director. Between the time the application was first denied
and the date of reopening, section 245 of the 1952 Act was amended
by section 10 of the Act of July 14, 1960. The amendment broadened considerably the basis on which an application can be filed;
therefore, the application was considered under the amended provisions of law. As amended, section 245 provides that the Attorney
General, in his discretion, may accord status as a lawful permanent
resident to an alien, other than an alien crewman, who was inspected
and admitted or paroled into the United States, if the alien is eligible to receive an immigrant visa and is admissible to the United
States as an immigrant, and if an immigrant visa is immediately
available to him at the time his application is approved.
When the case was reopened, the applicant was permitted to present additional evidence in support of his application. Also made
a part of the record was a letter dated October 24, 1960, from the
Assistant Director of the Visa Office, Department of State, to the
District Director at New York stating, in effect, that it was the
opinion of the Department of State that approval of this application would be inappropriate since such action would create an irritating factor in the relations between our Government and the
Government - of the United Arab Republic. After consideration of
the entire record, the District Director concluded that favorable
exercise of the Attorney General's discretion was not warranted
and on December 30, 1960, he entered an order denying the application. The order sets forth in detail the basis upon which that
conclusion was founded. The matter was then certified to this office
for review.
In reviewing the record, it has been noted that both the District
Director and counsel for the applicant have erroneously referred
to the proceeding as a "hearing." Neither the statute nor the regulations promulgated thereunder authorize or require a hearing on an
application filed pursuant to section 245. The statements made by
the applicant in support of his application have merely been recorded so that the transcript could be incorporated into the record
for the benefit of the reviewing officer.
The sole issue to be decided here is whether the application merits
favorable exercise of the Attorney General's discretion. The Service has consistently held that the extraordinary discretionary relief
provided in section 245 will only be granted in meritorious cases
250

(Matter of S—, 8-234; Matter of C—, 8 683 Matter of G—, 9
38). The burden is always upon the applicant to establish that his
application merits favorable action (Matter of G—, supra).
The fact that the applicant has been accused of a crime cannot
be considered in determining whether he meets the statutory requirements of the law, since he has neither been convicted of a crime
nor does lift admit committing any criminal acts. However, this
factor, along with all other factors in the case, must be considered
in determining whether favorable discretionary action is warranted.
The Service has been placed on notice by a responsible accredited
official of the Government of the United Arab Republic that the
applicant stands accused of misappropriating funds of that Government while employed in an official capacity. By means of the
letter of October 24, 1960, referred to above, the Secretary of State,
through his designated representative, has informed the Service
that the Embassy of the United Arab Republic has made frequent
representations to the Department of State expressing the view of
that Government that to permit the applicant to remain in the
United States would obstruct justice by permitting him to escape
punishment. The letter also states that the Department of State
is of the opinion that approval of this application would he inappropriate since it would create an irritating factor in this Government's relations with the Government of the United Arab Republic.
In view of all the factors in the case, it is concluded that the
District Director properly found that favorable exercise of the
Attorney General's discretion is not warranted and his order will
be affirmed.
ORDER: It is ordered that the order entered by the District Director on December 30, 1960, be affirmed.
-

251


Interim Decision #2272

MATTER Or YA.0

In Deportation Proceedings
A-15774083
Decided by Board March 19, 1974
(1) Under the alien registration provisions of the Immigration and Nationality
Act and applicable regulations, an alien crewman is under a duty to exhibit
his crewman's landing permit upon request to do so by a Service officer,
without necessity of a Miranda—type warning, even after the alien has been
temporarily detained by the officer for interrogation in accordance with the
provisions of section 287(aX1) of the Act, since the alien registration provisions
are essentially non-criminal and regulatory.
(2) Respondent was placed under forcible restraint by a Service officer for a brief
period (between 5 and 10 minutes) for future interrogation; thereafter he was
accompanied by a Service officer to his living quarters where, upon request,
and while under no physical restraint, he voluntarily handed over to the
service officer his crewman's landing permit (Form I-95A). Held: The temporary forcible detention of respondent for future questioning was not a "fullblown" arrest without warrant pursuant to section 287(aX2) of the Act and did
not continue throughout the period when respondent was in his own living
quarters and was questioned by the Service officer. Hence, since respondent's
crewman's landing permit was not obtained in a custodial setting and a
Miranda—type warning was not required, it is admissible in evidence.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(02)1—Nonimmigrantremained longer crewman.
ON BEHALF OF RESPONDENT:
Jules E. Coven, Esquire
1 East 42nd Street
New York, New York

ON BEHALF OF SERVICE:
Thomas W. Winnerman

Trial Attorney
R. A. Vielhaber
Appellate Trial Attorney

This is an appeal by the Immigration and Naturalization Service from a decision of an immigration judge which ordered the
termination of deportation proceedings against a person named
Yau Cheung Cheong in the Order to Show Cause in which he had
been charged with having illegally remained in the United States
beyond the period of his temporary admission as an alien crew620

Interim Decision #2272
man. Additionally, the immigration judge certified the matter to
us for final decision.
The appeal will be sustained. We find that the hearing before
the immigration judge was fair, and that the deportability of Yau
Cheung Cheong, to whom we shall hereafter refer as the respondent, has been established by clear, convincing, and unequivocal
evidence.

On June 5, 1969, the Service gained information as to the
respondent's name, other personal data, and the date and manner
of his arrival in the United States, as a crewman, when the
respondent, pursuant to a request made by a Service investigator,
handed to him a crewman's landing permit, Form I-95A. On the
basis of that information the District Director at Newark, New
Jersey, obtained from the Houston, Texas, office of the Service
further information concerning the respondent, including a report
of his desertion from the ship on which he had arrived in this
country, and his Hong Kong Seaman's Identity Book. All the
documents in the file pertainng to the respondent at the Houston
office had been maintained there long before June 5, 1969.
During the hearing held before the immigration judge the
respondent stood mute, on advice of counsel, and invoked the
privilege against self-incrimination under the Fifth Amendment of
the United States Constitution.
All the pertinent facts were set forth by the immigration judge

in his decision of April 5, 1971. We quote from it the following two
paragraphs:
"Factually, I am advised through the testimony of the investigators of the
Immigration and Naturalization Service who appeared before me that the
male person whom they identified as the respondent appearing in this cause
was seen by one officer running out of the rear door of a restaurant in
Verona. New Jersey, clad at that time in a white uniform, the usual attire for
restaurant kitchen employees. It was the investigator's opinion that the man
was attempting to flee from other officers of the Immigration and Naturalization Service who were in the restaurant allegedly interviewing and investigating the personnel there in an effort to ascertain whether there were any
illegal aliens employed in the restaurant. The investigator who saw the male
person fleeing gave chase, ultimately caught him, physically restained him,
placed handcuffs upon him, and brought him to a Service owned vehicle,
which was parked near the restaurant, where this officer turned the male
person over to another officer. The male person was then placed in the rear of
the car and detained there for some fifteen or twenty minutes before he and
other persons found at the restaurant were taken to the living quarters for
employees provided by the restaurant some few hundred yards to the rear of
the restaurant. At this place, through an interpreter, an Immigration Service
Investigator requested from the male person his 'papers' and obtained the
Form I-95A which has been marked Exhibit 2 for Identification.
The apprehending Immigration officer reported the information contained
upon this Form I-95A to his supervisor at the offices of the Immigration and

631

Interim Decision #2272
Naturalization Service in Newark, and this officer, in turn, then requested
and obtained, based upon this information, an Immigration file which purportedly related to the person to whom the Form I-95A had been issued. The
other documents offered in evidence and marked solely for Identification
came from this Immigration file."

In his decision, the immigration judge further stated that the
respondent was placed under arrest when handcuffs were put
upon him, that, thereafter, it became incumbent upon the arresting officer to give a Miranda type warning to the respondent, as
required under Miranda v. Arizona, 384 U.S. 426 (1966), before the

officer could request or obtain from respondent any evidence
which could be used against him in a subsequent proceeding, and
that the failure to give such a warning rendered evidence obtained
thereafter inadmissible. He stressed the fact that, under Service
instructions, Service investigators were required to give Miranda—type warnings, and that noncompliance with such instructions was an additional reason for considering evidence obtained
in violation of those instructions to be inadmissible. He cited the

case of Bridges v. Wixon, 326 U.S. 135, 153 (1945). He failed to
mention the significant facts that the respondent was under no
physical restraint at the time when he handed his crewman's

landing permit (Form I-95A) to a Service officer (Tr., p. 19), that
he did so voluntarily, and that no search was made.
In view of counsel's contention that the respondent was subjected to an illegal arrest, we have examined the record for any
violation of the provisions of the Fourth Amendment to the
constitution of the United States which might possibly preclude
the admission in evidence of respondent's crewman's landing
permit and of documents in the possession of the service which
pertain to the respondent. We have found no such violation.
The Fourth Amendment affords protection against unreasonable searches and seizures. Here there was no search; but there
was a "seizure" of the person of the respondent when he was
placed in the Service -owned vehicle, and was handcuffed. We find
that the seizure of the respondent's person was reasonable, in
view of his unusual conduct. In making that finding we have relied
on Terry v. Ohio, 892 U.S. 1 (1968), in which the United States
Supreme Court sanctioned a person's seizure and search, by a
police officer, under not dissimiliar factual circumstances. This
respondent was held in a motor vehicle for future questioning for
between five and ten minutes (Transcript of Hearing before the
immigration judge, p. 22). Such a detention for future interrogation, if brief in duration, has been distinguished from a "full—
blown" arrest. Au Yi Lau v. INS, 445 F2d 217 (D.C. air., 1971), cert.
den. 404 U.S. 864 (1971). Under the circumstances, the respondent's
632

Interim Decision #2272
forcible detention during a five-to-ten-minute period was a reasonable, constitutionally unassailable and under section 287(aX1) of
the Immigration and Nationality Act, authorized investigatory
stop for a reasonable period of time, and was not a "full—blown"
arrest without warrant pursuant to section 287(aX2) of the Immigration and Nationality Act.
The respondent was not questioned while he remained in the
Service vehicle. There was a language barrier. He could not speak
English well enough; and the Service officers did not speak
Chinese. Since the respondent was not questioned during his stay
in the Service vehicle, and no document was obtained from him
during that time, there would have been no occasion for giving
him a Miranda type warning; and, of course, none could have
been given in view of the lack of communication. We therefore do
not have to, and do not, decide the question whether a Miranda—
type warning would have been required if any statements had
been taken from the respondent or if any documents had been
obtained from him, at that time. We find on this record that the
restraint placed upon the respondent, as a necessary and reasonable concomitant of his detention, was temporary in nature, and did
not continue up to the time when he handed his copy of the
crewman's landing permit (Form I-95A) to the Service officer.
The record (Tr., pp. 18-20) indicates that he did so in a noncustodial setting. He had been asked, through a fellow employee,
whether he had a "ship's pass," and had indicated that he had one.
He had then led the Service officer to his room, had found the
document in question, namely his copy of the crewman's landing
permit, and, in his own living quarters, had voluntarily handed it
to the Service officer. In view of those facts, we disagree with the
immigration judge's assumption that there had been an arrest of
the respondent pursuant to section 287(a)(2) of the Immigration
and Nationality Act, rather than a temporary detention for the
purpose of interrogation under section 287(aX1), and with the
—

immigration judge's further conclusion that the restraint imposed

upon the respondent through an assumed "full—blown" arrest
under section 287(a)(2) continued throughout the period when the
respondent was in his own living quarters. We find that the
production, by the respondent, of his copy of the crewman's
landing permit did not take place in a custodial setting, and that,
under the circumstances of this case, a Miranda type warning
was not required any more than in Matter of Lane, 13 I. & N. Dec.
632, (BEA. 1970), where we said the following:
—

"Such warning is required in a custodial setting or when the person
questioned is the subject of a criminal investigation. Neither of these
situations existed here. There was merely an on-the-scene interrogation,

633

Interim Decision #2272
reasonable in nature, relatively short in duration, and there was an absence
of a reasonable possibility that there would be a criminal prosecution."

Even contrary to our foregoing finding, the respondent's copy
of this crewman's landing permit had been procured by the
Service officer in a custodial setting, the Service appeal would
have to be sustained.
We are unable to concur in the immigration judge's conclusion
that the respondent's copy of the crewman's landing permit (Form
I-95A) was obtained from the respondent in violation of Service
instructions. The respondent had referred to the principle that
"one under investigation with a view to deportation is legally
entitled to insist upon the observance of rules promulgated ...
pursuant to law." U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155
(1923), Bridges v. Wixon, 326 U.S. 135, 153 (1945). The following
provisions of 8 CFR 2872 were in existence at the time when the
respondent handed the Form I-95A to the Service officer:
"An alien arrested without warrant of arrest shall be advised of the reason
for his arrest and his right to be represented by counsel of his own choice, at
no expense to the Government. lie shall also be advised that any statement
he =alum may be marl against him in a subsequent proceeding and that a
decision will be made within 24 hours or less as to whether he will be
continued in custody or released on bond or recognizance."

However, like the preceding provisions of section 287.3, the quoted
portion deals exclusively with arrests without warrant, under
subsection (a)(2) of section 287 of the Immigration and Nationality
Act. It does not relate to a brief detention of a person believed to be
an alien, under subsection (aX1) of the Immigration and Nationality Act. In this case, there was only a brief detention. There was
no full-blown arrest without warrant. We therefore reject the
respondent's contention that there was a violation, by the Service,
of the provisions of 8 CFR 287.3.
In support of his view that a Miranda type warning should
have been given to the respondent, the immigration judge relied
on a statement in footnote 2 of a memorandum of the Immigration
and Naturalization Service filed in the Supreme Court of the
United States in connection with its opposition to the granting of a
petition for a writ of certiorari in the ease of An Chin Pang v_ INS,
No. 1081 Misc., October Term 1966, which was reported below at
368 F2d 637(C.A. 3, 1966), and in which certiorari was thereafter
denied, 386 U.S. 1037 (1967). There, however, the Solicitor General
referred to situations where an alien was Yormally interrogated
with respect to an entry believed to be illegal" [emphasis supplied].
There was no such formal interrogation in the matter which is
now before us.
Under section 264(e) of the Immigration and Nationality Act,
—

634

Interim Decision #2272
"Every alien, eighteen years of age and over, shall at all times
carry with him and have in his personal possession any certificate
of alien registration or alien registration receipt card issued to him
pursuant to subsection (d)." In enacting that statute, Congress
could hardly have intended that an alien was merely required to
carry the document with him, but did not have to exhibit it to a
Service officer asking him to identify himself. Pursuant to the
authority granted to him in section 263(a) of the Immigration and
Nationality Act the Attorney General has provided for the registration of alien crewmen and for the issuance of alien crewmen
landing permits (Forms 1-95). 8 CFR 264.1(a) and (b). We hold
that, under the statute and the applicable regulations, an alien
crewman is indeed under a duty to exhibit his crewman's landing
permit when requested to do so by a Service officer, even after the

alien has been temporarily detained by the officer for interrogation in accordance with the provisions of section 287(aXl) of the
Immigration and Nationality Act. We reject the contention that,
under such circumstances, the alien may refuse to identify himself
in the prescribed way, claiming the privilege against self-incrimination, The pertinent provisions of the Fifth Amendment do not
protect the alien in such a situation; for alien registration statutes
are "essentially non-criminal and regulatory provisions." U.S. v.
Sacco, 428 F.2d 264 (C.A. 9, 1970), cert. denied 400 U.S. 903. We
specifically reject the immigration judge's attempted extension of
the principles stated in Miranda v. Arizona, 384 U.S. 436 (1966).
That case did not relate to a legitimate request for identification
which a Service officer may direct to an alien in a non-criminal
matter but dealt "with the admissibility of statements obtained
from an individual who is subjected to custodial police interrogation?'

We believe that the conclusion which we have reached is
consistent with the views which the Court of Appeals for the
Seventh Circuit expressed in its decision in United States v.
Campos-Serrano, 430 F.2d 173 (1970), a decision which was subsequently reversed, on grounds not relevant here, by the Supreme
Court in 404 U.S. 293 (1972). That was a criminal case. The
defendant, Campos Serrano, had been indicted under the provisions of 18 U.S.C. section 1546 for possession of a forged alien
registration receipt card. At the trial it was shown that, after a
completed examination of an alien registration receipt card exhibited by the defendant, immigration officers had come to the
defendant's apartment a second time, and that they had made
that second visit for the purpose of ascertaining whether the card
had been forged. While the Circuit Court thought "that the
defendant should have been given Miranda warnings before he
-

635

Interim Decision #2272
was asked to produce his alien registration receipt card a second
time" [emphasis supplied], it determined that, "the initial inquiry
to determine whether the defendant was properly in this country
did not violate his fifth amendment privilege;" for, "Since the
purpose of these cards is noncriminal, the fifth amendment should
not prevent production in the normal immigration inquiry."
The immigration judge, who had come to the erroneous conclusion that the respodent's rights under the Fifth Amendment had
been violated, was of the opinion that the so-called "fruit of the
poisoned tree" doctrine fitted the facts of this case, and that
consequently the documents offered by the Service were not
admissible in evidence. It was his opinion that "it necessarily
follows that the Service has here failed to establish deportability
and that the proceedings should and must be terminated." We
disagree with his interpretation of that well-established doctrine.
In the case before him, and now before us, the Service obtained
from the respondent no information that was not already in its
possession. The fact that he had handed his copy of the crewman's
landing permit (Exhibit 3) to a Service officer merely made it
easier for the Service to locate the identical copy of that permit

(see Exhibit 2) which the Service had retained at the time when
the respondent had received his copy. The respondent's Hong
Kong Seaman's Identity Book No. 46161 (see Exhibit 5) had been
turned over to the Service by the Master of the "Eastern Sakura"
and had been in the Service's possession at least since June 5,
1969, (see Exhibit 8, which is a report of investigation dated June
5, 1969). So had the crew list of the "Eastern Sakura" (Exhibit 4),
and the Master's letter of May 2, 1969, in which he reported the
respondent's desertion to the Service (Exhibit 6). Inasmuch as all
the evidence on which the Service sought to rely was in its
possession long before the respondent's apprehension, the immigration judge erred in his determination that that evidence was
the "fruit" of the respondent's copy of his crewman's landing
permit.
We conclude that, even if the respondent's copy of his crewman's
landing permit had been obtained by the Service in violation of his
constitutional rights—and we hold that they were not so obtained—the other documents presented by the Service would have

remained untainted, and were admissible in evidence.
We find and determine that the documents submitted by the
Service establish clearly, convincingly, and unequivocally that the
respondent is an alien, that he is a native and national of China,
that he was admitted to the United States as a crewman, that he
deserted his ship, that he has remained in the United States
626

Interim Decision #2272
longer than permitted, and that he is deportable as charged in the
order to show cause.
The respondent who was represented by experienced immigration counsel deliberately did not apply for a grant of the privilege
of voluntary departure. He failed to designate a country of deportation. He made no application for withholding of deportation
under section 243(h) of the Immigration and Nationality Act.
ORDER: The appeal is sustained, and the order of the immigration judge of April 5, 1971, is withdrawn.
Further order: the respondent shall be deported from the
United States to the Republic of China on Taiwan on the charge
contained in the order to show cause.
Further order: If the aforementioned country declines to accept
the respondent into its territory or fails to advise the Attorney

General within three months following original inquiry whether it
will or will not accept the respondent into its territory, the
respondent shall be deported to Hong Kong.

Maurice A. Roberts, Chairman, Concurring:

While I agree that the Service appeal must be sustained, 1
arrive at the conclusion by a somewhat different route from that
of the majority opinion. In addition, I wish to dissociate myself
from some of the precepts laid down by the majority which I
consider not only unnecessary for the conclusion reached but also
incorrect as a matter of law.
From the record before the Board, the following facts appear:
The respondent is a 28-year-old male alien, a native and citizen of
China, who was admitted to the United States at Galveston, Texas
on April 4, 1969 as a nonimmigrant crewman from the British
motor vessel "Eastern Sakura." He was granted shore leave for
the period of time the vessel was to remain in port, in no event to
exceed 29 days. As evidence of his conditional landing privilege
and alien registration, he was given a Form I--05A by the

immigrant inspector (Ex. 3). A duplicate Form I-95B was retained by the Immigration and Naturalization Service (Ex. 2). He
did not depart with the vessel when it left port on April 30, 1969
and he was reported by the master as a deserting crewman on the
vessel's outbound crew list (Ex. 4) The master turned over to the
Service the respondent's Hong Kong Seaman's Identity Book (Ex.
5), which he 'had left behind on the vessel. These documents were
637

Interim Decision #2272
retained in a file relating to the respondent maintained in the
Service's office at Houston, Texas.
On June 5, 1969, four investigators from the Newark, New
Jersey office of the Immigration and Naturalization Service conducted an investigation at the Clairmont Diner in Verona, New
Jersey, to see if aliens unlawfully in the United States were
employed there. This was a periodic visit to the restaurant,
occasioned by the fact that on a number of prior visits numerous
Greek and Chinese aliens had been found working there illegally
as kitchen help. Two of the investigators remained outside while

two entered the premises. Five minutes later, the respondent was
seen running out of the restaurant's rear door, wearing the white
jacket typical of waiters, bus boys and kitchen help, which he tried
to shed as he ran. One of the investigators pursued and caught

him, placed him in handcuffs, and put him in the rear of a nearby
Service automobile. The other investigators soon returned with
other aliens found working illegally in the restaurant.
,

The investigators took the aliens, including the respondent, from
the car after about 15 minutes and went with them to a house
where the aliens all resided, about 100 yards away. There the
handcuffs were removed. One of the investigators asked the
respondent, through one of the other aliens acting as interpreter,
if he had a ship's pass. The respondent indicated that he did and
that it was upstairs in his room. The respondent led the investigator upstairs to his room, found his Form I-95A among his

possessions, and handed it to the investigator. The respondent's
identity, ascertained from his surrendered Form I-95A, was
relayed by telephone to the Service's Newark office, which then
learned by telephone from the Service's Central Office in Washington, D.C. that the Houston office had a file on the respondent as a
deserting crewman. That file was subsequently obtained. The
respondent, meanwhile, was brought to the Newark office, where
he executed a signature specimen form (Ex. 9). On the same day,
an Order to Show Cause in deportation proceedings was issued.
It is conceded that at no time was the respondent given the
warning formulated in Miranda v. Arizona, 394 U.S. 436 (1966).
At the hearing before the immigration judge, counsel for the
respondent admitted that the respondent had been served with an
order to show cause but refused to concede anything else, either
by way of his identity or the correctness of the charges. On advice
of counsel, respondent refused to answer any question or to
identify any documents_ Service investigators testified as to the

manner of the respondent's apprehension and identification on
638

Interim Decision #2272
June 5, 1969 and identified the various exhibits sought to be
introduced, including those contained in the Houston file. The
Service's trial attorney offered in evidence, over counsel's objection, the various documents showing respondent's identity, admission as an alien crewman, and desertion (Exs. 2, 3, 4, 5 and 6). The
immigration judge concluded that the respondent's arrest without
a warrant was proper, but that the Service had obtained his Form

I-95A unlawfully because he had not been given the Miranda
warning before he was asked to produce it. Since the Service had
ascertained respondent's identity through the (to the immigration
judge) illegally obtained Form I-95A and since the other documentary evidence, though already in the Service's files, had been
located only through his (to the immigration judge) illegally
obtained identification, the immigration judge concluded that the
latter documents were equally inadmissible as the "fruit of the
poisonous tree." He sustained counsel's objection to the admission
of all the documents and ordered the proceedings terminated for
lack of proof of the charges. The Service has appealed.
The interplay of several distinct, but related, legal principles
must he considered in appraising the admissibility of the evidence:
(1) Any witness, including an alien, may invoke the Fifth Amendment's privilege against self-incrimination, Sherman v. Hamilton,
295 F.2d 516 (C.A. 1, 1961), cert. denied 369 U.S. 820. (2) A person
who is in custody or in a custodial setting must be given the
Miranda warning before any statement he makes can later be
received in evidence in proceedings against him, Miranda v.
Arizona, 384 U.S. 436 (1966). (3) Evidence illegally obtained by
Government agents may not be used against the person whose
rights were thus violated, U.S. ex rel. Bilolcumsky v. Tod, 263 U.S.
149 (1923); Valeros v. INS, 387 F.2d 921 (C.A. 7, 196'7). (4) Where
Government agents obtain evidence thus illegally, not only is the
use of the evidence itself forbidden, but also use of information or
evidence deriving from the evidence thus illegally obtained, since
they constitute "the fruit of the poisonous tree," Nardone
United States, 308 U.S. 338 (1939); Wong Sun v. United States, 371
U.S. 471 (1963). (5) The alien registration requirements are essentially non -criminal and regulatory provisions. They therefore present no Fifth Amendment problem, United States v. Sacco, 428
F2d 264 (C.A. 9, 1970), cert. denied 400 U.S. 903, and the Miranda
warning is not a prerequisite to a request by a Service officer for
production of an alien registration receipt card, United States v.
Campos-Serrano, 430 F2d 173 (C.A. 7, 1970), affirmed on another
ground, 404 U.S. 293 (1971).

639

Interim Decision #2272
Turning now to the facts developed of record, I agree with the
majority opinion and with the immigration judge that the respondent was properly stopped and lawfully detained by the
investigator. The respondent, oriental in appearance, was fleeing
from the rear door of a restaurant which had previously on
numerous occasions employed aliens here illegally as kitchen help.
He wore the uniform customarily worn by kitchen help and he was
trying to discard it. His sudden departure was obviously precipitated by the entrance on the premises of the other Service
investigators. Be could speak no English. On these facts, the
investigator had reason to believe that the respondent was an alien
in the United States in violation of the immigration laws who was
likely to escape before a warrant could be obtained for his arrest.
Under these circumstances, respondent's initial detention for
questioning, followed by his arrest without a warrant, was fully
justified under section 287(a)(1) and (2) of the Immigration and
Nationality Act, Au Yi Lau v. INS, 445 F.2d 217 (D.C. Cir. 1971),
cert. denied 404 U.S. 864; Cheung Tin Wong v. US INS, 468 ,F2d
1123 (D.C. Cir. 1972); Shu Fuk Cheung v. INS, 476 F.2d 1180 (CA. 8,
1073); Hon Zeurcg .;91.,no v. District Director, 356 F. Supp. 571 (E.D.
Mo. 1973). Cf. United States v. Mallides, 473 F2d 859 (C.A. 9, 1973).
I do not agree with the view of the majority that the respondent,
handcuffed and confined in a Service automobile, was merely
being temporarily detained for further interrogation and was not
the subject of a "full blown" arrest. Nor do I think that he was any
the less under restraint when he was taken from the car to his
own apartment and the handcuffs were removed. Can it be
imagined that, if he had then sought to make a break for freedom
under these circumstances, the investigators would have let him
go without hindrance on the notion that he was no longer in
Service custody?' It seems to me that he was lawfully in Service
custody when he was taken from the car and continued to be
lawfully in Service custody when, on request, he later produced his
Form I-95A.
The fact that he was in custody does not, in my view, compel the
conclusion that he was entitled to the Miranda warning before he
could be asked to produce his Form I-95A. As the majority

See Miranda v. Arizona, 384 U.S. 436 at 444 (1966): "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in
any significant way."

640

Interim Decision #2272
opinion points out, under the pertinent regulations that form was
the evidence of alien registration designed for crewmen. None of
his Fifth Amendment rights was violated by compelling him to
register in the first place and carry his registration card, United
States v. Sacco, supra. In a non-custodial setting, its production
could be required without giving him the Miranda warning,
United States v. Campos -Serrano, supra. I think the same rule
applies even in a custodial setting. The Miranda requirement
arose out of the Fifth Amendment's privilege against self-incrimination. Since that privilege does not impair the Government's
right to request production of an alien registration card, it seems
to me that the right to the Miranda warning, derived from the
same privilege, is equally inapplicable, regardless of whether the

alien is in or out of custody.
Thus, in my view, the Form I-95A produced by the respondent
on request was not unlawfully obtained and should have been
received in evidence. The information as to the respondent's
identity which it revealed was information lawfully obtained, and
the other documents already in the Service's files in Houston,
which this identifying information led to, were equally lawfully
available for evidentiary purposes. They were, in fact, cumulative
evidence, for the Form I-95A was itself sufficient to establish the
respondent's identity as an alien crewman whose limited admission had already expired. The other documents could not, in any
event, be considered "the fruit of the poisonous tree" for there was
no "poisonous tree" to begin with. I agree with the majority
opinion that respondent's deportability as charged has been sustained by evidence which is clear, convincing and unequivocal. The
Service appeal is properly sustained.
That being so, I see no reason for the majority opinion to go
further and to lay down additional precepts which are not required
to reach this decision and which are, in my estimation, of dubious
validity. I refer particularly to the following statements appearing
on page nine of the majority opinion:
... Inasmuch as all the evidence on which the Service sought to rely was in
its possession long before the respondent's apprehension, the immigration
judge erred in his determination that that evidence was the 'fruit' of the
respondent's copy of his crewman's landing permit.
We conclude that, even if the respondent's copy of his crewman's landing
permit had been obtained by the Service in violation of his constitutional
rights ... the other documents presented by the Service would have remained
untainted, and were admissible in evidence.

The law realistically recognizes that on occasion some overzealous Government officials may overreach and may themselves
violate constitutionally protected rights in obtaining evidence of
641

Interim Decision #2272
wrongdoing on the part of others. The rule excluding such evidence (the exclusionary rule) is founded on sound principles of
policy laid down long ago. See Weeks v. United States, 232 U.S. 383
(1914); Wong Sun v. United States, supra. In Silverthorne Lumber
Co. v. United States, 251 U.S. 385 (1920), the exclusionary rule was
extended to bar not only the evidence itself unlawfully obtained,
but also evidence derived from information thus illegally received.
The Court stated (251 U.S. at 392):
... The essence of a provision forbidding the acquisition of evidence in a
certain way is that not merely evidence so acquired shall not be used before
the court, but that it shall not be used at all. Of course this does not mean that
the facts thus obtained become sacred and inaccessible. If knowledge of them
is gained from an independent source they may be proved like any others, but
the knowledge gained by the government's own wrong cannot be used by it in
the way proposed . [Emphasis added].

And see Nardone v. United States, 308 U.S. 338, 340 -341(1939):
... To forbid the direct use of methods thus characterized but to put no
curb on their full indirect use would only invite the very methods deemed
`inconsistent with ethical standards and destructive of personal liberty ...'
The burden is, of course, on the accused in the first instance to prove to the
trial courts satisfaction chat wire tapping was unlawfully employed. Once
that is established—as was plainly done here—the trial judge must give
opportunity, however closely confined, to the accused to prove that a substantial portion of the ease against him was a fruit of the poisonous tree. This
leaves ample oppor tunity to the Gove rnment to ,nnvince the trial court that
its proof had an independent origin.

So far as I am aware, neither the exclusionary rule itself nor its
application to "the fruit of the poisonous tree" has thus far been
repudiated by the courts. See Wong Sun v. United States, 371 U.S.
471 (1963); Gelbard v. United States, 408 U.S. 41 (1972); United
States v. Calandra, 414 U.S. 388 (1974).

The majority opinion declares that otherwise undiscovered documentary evidence already in the files of any of the Service's many
far-flung offices at the time of the illegal apprehension complained
of cannot be considered "the fruit of the poisonous tree," even
though its existence is discovered and it is brought to light only by
identifying information unlawfully obtained in violation of the
alien's constitutional rights. I cannot agree. Such a holding would
effectively undermine the exclusionary rule and its corroliary.
Under it, identifying information, however unlawfully obtained,
could be used as a direct lead to a witness or other evidence,
otherwise undiscovered, and the witness or documentary evidence
thus unearthed could be used at trial.
The cases do not sustain this novel theory. The testimony of
witnesses whose identity was discovered through unlawfully obtained information has been discarded, Tucker v. Johnson, 352
642

Interim Decision #2272
F.Supp. 266 (E.D. Mich. 1972), affirmed without opinion 480 F2d
927 (6 Cir. 1973); United States v. Maltides, supra; United States v.
Guam-Sanchez, 484 F2d 590 (C.A. 7, 1973), cert. petition pending,
No. 73-820, solely on the question of standing.
An argument similar to the view of the majority opinion on this
point was presented by the Government in Au Yi Lau v. MS,
supra. The court's reaction, while not decisive, is illuminating. See
445 F2d 217 at 224, n. 11 and accompanying text.

Since I agree that the Service's evidence was lawfully obtained
without violating the respondent's constitutional rights, I would
sustain the Service appeal without discussion of what our decision
would be if his constitutional rights had, in fact, been breached.

643


Interim Decision #1265

MATTER OP SAUER

In DEPORTATION Proceedings
A-12350247
Decided by Board January 22, 1963
Adjustment of status under section 245 of the Immigration and Nationality Act,
as amended, is denied as a matter of discretion to an alien who did not enter
the United States as a nonimmigrant in good faith and who intended to circumvent the quota restrictions of the Act, haying intended at the 'time of entry
to remain as long as possible and having concealed in his application to the
American Consul in Paris for a nonimmigrant visa the fact that his parents
were then lawful permanent residents of the United States; that he had
registered with the American Consulate in Tel Aviv in 1857 for an immigrant
visa, and that he was denied a nonimmigrant visa by that same consulate
in 1960.
CHARGE :
Order: Act of 1952--Section 241(a) (2)

(8 U.S.C. 1251(a) (2)]--Renlained

longer—visitor.

The respondent, a native and citizen of Israel, male, 25 years of age,
married, appeals from an order entered by the special inquiry officer.
on October 29, 1992, granting him voluntary departure in lieu of deportation as an alien who entered the "United States as a visitor • on
August 18, 1962, and remained longer than permitted (section
241(a) (2) of the Immigration and Nationality Act; 8 U.S.C.
1251(a) (2)). The order also provides for the respondent's deportation to Israel in the event he fails to depart as required. Applications
for discretionary relief under sections 212(h) (1) and 245 of the Immigration and Nationality Act were denied (8 II.S:C. 1182(h) (1) and
1255). This appeal is directed to the denial of the applications for
discretionary relief.
The issue of deportability is not before us as respondent has

conceded that he is deportable as charged in the order to show cause
(p. 4). Our discussion of the evidence will be limited to the respondent's applications for relief under sections 212(h) and 245

(supra).
TeS-450-435--13

177

Interim Decision #1265
The respondent was born at Tel Aviv, Israel, on February 9, 1937.
He and his parents registered for quota immigration visas at the
American Consulate in Tel Aviv on September 10, 1957 (p. 4 and

letter attached to Ex. 14). His parents entered the United States
for permanent residence, the father in 1958, the mother in 1959 (p. 7).
They have resided in the United States since their entry for permanent
residence.
The respondent applied for a nonimmigrant visa at the American
Consulate in Tel Aviv during September of 1960. The consul at Tel
Aviv denied the respondent's application on the ground that he did
not believe the respondent to be a bona fide nonimmigrant (pp. 11 and
12).
Thereafter the respondent journeyed to Paris, Prance_ During

August of 1961 he applied to the American Consul in Paris for a
nonimmigrant visa. He was asked in connection with this application as to whether he had ever filed an application for a visa to come
to the United States and where his parents were residing at that
time.
The respondent admits that he concealed from the consul in Paris
the fact that he was registered for an immigration visa at the Consulate in Tel Aviv and had been denied a nonimmigrant visa in
September of 1960 at this same consulate. The respondent also admits
that he informed the, consul in Paris that his parents were then residing in Tel Aviv, Israel and that at the time he entered the United
States on August 13, 1961, it was his intention to remain in the
United States as long as possible (pp. 11-14). The respondent
testified that he misrepresented the facts to the consul because "I
wanted to be together with my parents" (p.15).
The fact that the respondent has applied for a waiver of the
ground of exclusion specified in section 212(a) (19) of the Immigration and Nationality Act indicates a belief that he considers his misrepresentations to the consul in Paris may have been material to the
issuance of the nonimmigrant visa with which he entered the United
States. He seeks a waiver of this ground for exclusion under the
provisions of section 212(h) (1) of the Immigration and Nationality
Act (8 U.S.C. 1182(h) (1) ). This provision of the Immigration and
Nationality Act, added by the Act of September 26, 1961 (75 Stat.
655), provides, inter alia, that the Attorney General in his discretion,
may admit the respondent for permanent residence notwithstanding
the fact that "he . . . has procured a visa or other documentation, or
entry into the United States, by fraud or misrepresentation .. ."
The respondent also seeks to adjust his unlawful immigration status
to that of a permanent resident alien -without a departure from the

United States. He seeks to accomplish this under the provisions of
178

Interim Decision #1265

section 245 of the Immigration and Nationality Act as amended by
the Act of July 14, 1960.1 The broadened provisions of section 245,
as amended, merely require an applicant for status as a permanent resident alien to establish that he was inspected and admitted or paroled!

into the United States; that he is admissible to the United States for
permanent residence; that he is eligible to receive an immigration visa

and that an immigration visa is immediately available to him at the
time his application is approved. The statute also provides that notwithstanding the fact that the applicant meets the substantive requirements his status "may be adjusted by the Attorney General in his
discretion and under such regulations as he may prescribe." (Emphasis
supplied.)
The respondent maintains that he can meet the substantive requirements of section 245 (supra) provided the Attorney General exercises
his discretion under section 212(h) (1) (supra) thereby removing the
ground of inadmissibility which now exists. He was inspected and
admitted as a nonimmigrant at the port of New York on. August 13,
1961. He alleges that a quota immigration visa is immediately available to him under the third preference of the Israeli quota. 2 The
primary issue before us is whether the respondent's applications merit

favorable exercise of the Attorney General's discretion.
The amendment to section 245 (supra 1) was intended to broaden
the scope, of the Attorney General's authority in order that he may
adjust in his discretion the status of all aliens other than alien crewmen
and aliens residing in territories adjacent to the United States who
enter the United States in good faith without any intention of circumventing the quota restrictions of the Immigration and. Nationality
Act. (See Committee Report, U .S Code, Congressional and Administrative News, 86th Congress, 2d Session 1960 at pp. 3137, 8138 and
3147.) We have in a recent case 3 adjusted the status of an alien from
a nonquota area who entered the United States as a nonimmigrant.

The alien concerned affirmatively established that although he had at
some time in the past a desire to enter the United States for permanent
residence, nevertheless at the time he secured his nonimmigrant visa
he fully intended to comply with the terms of his temporary admission
unless permitted to remain in the United States lawfully by taking
advantage of a provision of the immigration laws designed to obviate
the need for departure and reentry on his part. There was no showing
86-648, 86th Congress, 2d Session.
A visa petition filed in his behalf by his lawfully resident alien wife was
approved on August 28, 1002 (Es. 6).
-

',Vetter of Carlos Barrios,

A-12276413,

October 11, 1062, Service motion

to reconsider, denied January 1963, Int. Dec. No. 1264.
179

Interim Decision #1265

in the case that the alien intended to circumvent the quota restrictions
of the Immigration and Nationality Act.
The alien in the instant ease admits that he concealed from the

consul at Paris the fact that he had been denied a nonimmigrant visa
by the consul at Tel Aviv, the fact that he had been registered for a
quota immigrant visa at the Consulate in Tel Aviv since September of
1957 and the fact that his parents were then residing lawfully in the
United States The respondent also admits that at the time he entered
the United States as a nonimmigrant he had fully intended to remain
as long as possible in order that he could be "together with (his) parents." The evidence affirmatively establishes that the respondent did
not enter the United States in. good faith as a. nonimmigrant without
any intention of circumventing the quota restrictions of the Immigration and Nationality Act.
The circumstances under which the respondent acquired his nonimmigrant visa. in Paris show a preconceived plan to enter the United
States as an immigrant regardless of his position on the Isareli quota
registration. An exercise of the Attorney General's discretion in this
case would adjust the status of an alien who fully intended to circumvent the quota restrictions of the Immigration and Nationality Act.
Section 245 does not contemplate the adjustment of an alien's status
who did not enter the United States as a nonimmigrant in good faith.
The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.

180


Interim Decision #2463

MATTER OF RICCIO
In Deportation Proceeding
A-14778020

A-14778031
Decided by Board January 13, 1976
Administrative discretion in suspension of deportation cases should be exercised without
reliance on Congressional committee reports as assumed indicators of Congressional
policy underlying the statute involved (Matter of Lee, 11 I. & N. Dec. 649, modified).
Discretionary determinations must be based on the circumstances in the case under
consideration. Favorable and unfavorable factors must be weighed. The method by
which an al en has prolonged his stay in the United States is a relevant factor.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor
remained longer (both respondents)
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Victor M. Ferrante, Esquire
265 Golden Hill Street
Bridgeport; Connecticut 06604

George Indelicato
Appellate Trial Attorney

In a decision dated May 29, 1975, after a reopened hearing, the
immigration judge denied the respondent's applications for suspension

of deportation under section 244(a)(1) of the Immigration and Nationality Act in the exercise of his discretion, but granted the respondents the privilege of departing voluntarily in lieu of deportation. They
have appealed from that decision. The record will be remanded.
The respondents had been found deportable on April 6, 1967, and had
been granted the privilege of voluntary departure. They did not take an
appeal from that decision, and failed to depart voluntarily. Their departure was nct enforced during the pendency of three private bills filed in

the Congress in their behalf. These bills were not enacted. The respondents were later granted extensions of voluntary departure time, and
again failed to depart. Warrants for their deportation were issued on
February 25, 1972.
Counsel filed an application for a Writ of Habeas Corpus in the United
States District Court for the District of Connecticut, on August 31,
548

interim

itiecision /Fce*co

1972. The Service did not act to deport the respondents during the
pendency of the court proceeding. The application for the Writ of
Habeas Corpus was not adjudicated. On February 21, 1973, the
immigration judge denied respondents' motion for reopening and reconsideration. On September 19, 1973, they filed applications for suspension of deportation. The immigration judge granted a motion to reopen
the proceedings, on January 22, 1974, so that their applications for
suspension of deportation could be considered.
In the reopened proceedings, the immigration judge concluded that
the respondents were statutorily eligible for suspension of their deportation. Before denying their applications, in the exercise of administrative discretion, he quoted certain statements which the Committee on
the Judiciary of the House of Representatives had made in H.R. Report
No. 2151, September 28, 1966, 89th Cong., 2d Session. That report was
almost identical with the report previously filed by the Committee on
the Judiciary (H.R. Rep. No. 1167, October 14, 1965, 89th Cong., 1st
Session), which we had discussed in Matter of Lee, 11 L & N. Dec. 649
(BIA 1966). However, subsequently, in Asimakopoulos v. INS, 445
F.2d 1362 (C.A. 9, 1971), the court pointed out that the House Judiciary
Committee did not speak for the whole C6ngress, that its 1965 report
was not an effort "to tell the Attorney General how he should exercise
the discretion delegated to him," and that reliance on the Committee
report could effectively preclude the required exercise of administrative
discretion. Our decision in Matter of Lee, supra, was reversed, for
"failure to exercise discretion."
We hereby recede from that part of our opinion in Matter of Lee,
supra, which assumed that the views expressed in the House Judiciary
Committee report indicated a "Congressional policy underlying the
statute involved." We had not intended to imply that the committee's
report should govern or restrict the exercise of administrative discretion. To the extent that our decision in Matter of Lee, supra, has given
that unintended impression, we hereby modify the decision. Administrative discretion in suspension of deportation eases should be exercised
withot reliance on such committee reports as assumed indicators of
Congressional policy. •
Discretionary determinations must be based on the circumstances
present in the case under consideration. Favorable and unfavorable
factors must be weighed. The method by which an alien has prolonged
his stay in this country is a relevant factor.
We shall remand the matter to the immigration judge so that he may
exercise administrative discretion without reliance on the committee
report which he quoted.
ORDER: The record is remanded to the immigration judge for
further proceedings and a new decision_
549


Interim Decision *1479

Meal= or

PANG*

In Deportation Proceedings
A-15169531

Decided by Board Arno 9,1965
(1) Authority exists under sections 235, 287(a) and 287(b), /mmigmtion and
Nationality Act, for a Service officer to interrogate or take evidence T/0111
an alien as to his right to remain in the United States, and respondent's prehearing sworn statement made voluntarily and withont_requesk: for kepre- •
entaiobycuslfreanivtgohSercisadmblIn
evidence in deportation proceedings (8 DIM 20.14(0) f Is not in violation
of .due process or fair hearing; and is not bound by Judicial rules of evidence concerning antheuLtication'In criminal proceedings since a deportation
proceeding is civil in nature rattier than criminal and Is not within Escobedo v. Illinois, 378 U.S. 478 (1964), and Monfort T.. tinned States, 377
U.S. 201 (1964).**
(2) An alien who refuses to testify at his deportation hearing must nevertheless
show his right to stay in the United States or he must depart.** '
•

Order: Act of 1952--Section 241(a) (2) [8 U.S.O. 1251(a) (2) Entered
after having been refused permiseion to4tand as a
crewman.

The special inquiry officer found that respondent is 34 years old,
married, male, alien, a native and citizen of China, who last arrived
in the United States at New York on September 4, 1962. The special
inquiry officer found further that he is a crewman who was refused
permission to go ashore but that he did go ashore, and has remained
in the-United States since that date. The special inquiry officer
found respondent deportable on the charge set forth above and
ordered him deported to the Republic of China on Formosa.
Respondent requests termination of these proceedings on the
ground that the above-found facts are not established by the record.
*NOTE: See also, Matter of Pang, Int. Dee. No. 1502, of which tb- alien it
this case is also the subject.
*•Reaffirmed, 308 5'.2d 687 (0.A. a, 1966).

213

Interim.Deeision *1479
-Respondent declined, through comma', to request voluntary departure
from the United States, and he made no application for temporary
withholding of deportation under section 243(h) of the Immigration.
and Nationality Act. He appeals from the speciaL inquiry officer's

finding that he is deportable. The appeal will be dismissed.
The following facts are admitted: On November 4, 1964, two investigators for the Immigration and Naturalization Service stopped
at a restaurant in Allentown, Pennsylvania, on a routine check.
They went directly to the kitchen, identified themselves as investigators for the Immigration and Naturalization Service, talked to Mr.
Low,

one of the cooks, and then to respondent. The record contains

an affidavit dated November 6, 1964, executed at Philadelphia, Pennsylvania, referred to hereinafter as Fallibit 2. Rvhibit 2 was written
by Harold Stokes, one of the investigators, from information taken
through an interpreter for the Immigration and Naturalization Service, Mr. Mervin Kan.
Respondent alleges with regard to Exhibit 2 that it was improperly admitted into evidence: (1) in violation of the respondent's

constitutional rights under the Fifth Amendment, (2) in violation
of the rules of evidence concerning authentication and that a proper
foundation was not laid, (3) in violation of the Supreme Court decisions guaranteeing the right to an attorney at the time an investigation for'deportation is initiated. Respondent further alleges that
the Immigration and Naturalization Service did not sustain its burden of proof in the deportation hearing_
Exhibit 2, Affidavit, is written on Form I-2161 which has at the
top a printed acknowledgment by the affiant stating, "I,
acknowledge that the above-named officer has identified himself to me
as an officer of the United States Immigration and Naturalization
Service authorized by law to administer oaths and take testimony in
connection with the enforcement of the Immigration and Naturalization laws of the 'United. States. I am willing to make a sworn
statement before him. I understand that any statement which I
make must be freely and voluntarily given and that it may be used
by the Government as evidence in any proceedings against me or any
other person. Being duly sworn, I make the following statement
freely and voluntarily :". In this affidavit respondent stated that he
was born in China on October 2, 1930, that he is a Chinese citizen,
that neither of his parents was ever a United States citizen or resi-

dent in this country. He stated that he arrived in the 'United' States
at New York September 4, 1962, and was refused permission to go
ashore by the immigration officers, but that he went ashore with his
"boss, the bosun" between 6 p.m. and 8 p.m. He further stated gen214

Interim Decision $479
erally his movements from town to town since his entry, gave his 'Social Security number, and stated that he had come to the United
States only once before—as a member of the SS "Hindustan" in 1961
or 1962 at which time.he was refused shore leave at Norfolk, Virginia. The affidavit is signed "Ah Chiu Pang" both on pages 1 and
2. A certification by Mr. Kan, the interpreter, on page 2 declares (in
part), "I read the foregoing to Ab. Chia Pang and that he stated that
understood were true and correct".
Respondent's hearing was called for March 2, 1965, at Philadelphia, Pennsylvania. He requested a continuance to get a lawyer.
He was informed that the order to show cause had instructed him to
appear with a lawyer if he 'wished to be represented. He was nevertheless, given until March 12, 1965, to secure counsel. At the hearing
on March. 12, and on March 19, 1965, respondent stated his name and
where he resides, and he declined to answer all other questions on
the ground that he was .invoking the Fifth Amendment.
Mr. Harold Stokes, the investigator for the Immigration and Naturalization Service, testified that Allentown, Pennsylvania, is part of
his District, and that he works out of the Philadelphia District office. He testified: that he and another investigator were making a
routine search in Allentown,•ecanse there had recently been a number of desertions from Chinese. vessels in that district. Mr. Stokes
identified respondent as the person, Ah Chin Pang, whom he found
at Allentown. world g in the kitchen of the Rubes' Restaurant.
First the investigators showed him their credentials and identified
themselves as immigration officers. Respondent was asked for his
passport or any other form of identification. He admitted that he
had no papers, and that he was prepared to go with them. Mr.
Stokes testified that respondent said in English, "I do not have any
papers". Otherwise, the conversation between the investigators and
respondent was through Mr. Low, a Chinese cook in the restaurant
kitchen. who acted as interpreter. They next saw him in the Philadelphia office, perhaps two days later, at which time a statement was
taken from respondent. This statement was written in Mr. Stokes'
handwriting' and taken, through Mr. Kan, a regular Immigration
and Naturalization Service interpreter. Mr. Stokes testified that he
placed respondent under oath, and respondent signed the affidavit.
Mr. Stokes also testified. that the respondent was told that the affidavit was a voluntary statement, that it could be used in any proceeding against him, and that he did not -ask. to be 'represented by
counsel.
Counsel contends that Exhibit 2 is not properly identified or related to respondent, in that Mr. Ken, the interpreter, testified that he
215

Interim Decision #1479
did not specifically remember respondent, and could not identify respondent as the person who signed the statement; he could only
testify as to the invariable procedure followed in all cases. Mr. Kan
testified that he had worked as a part -time interpreter for the Immigration and Naturalization Service for approximately two and a half

years, and is called to act as interpreter an average of "a couple
times a month". He testified that he does not remember names, that
he did not remember respondent by name, but that respondent spoke
to him when he entered the hearing, saying, "We meet again", and
this recalled hint to Mr. Kan. He testified that the initialc
"A. C. P." on page 1 were placed there by respondent in the interpreter's presence. Mr. Kan testifies that the procedure is always
the same, that he reads back the questions or statement to the alien,
and then signs his own- name, and the one who is questioned is also
asked to sign his name. He testified that he always reads the entire

affidavit including the printing and the handwriting, that the one
being questioned is always advised that he may refuse to answer, and
that any testimony he gives may be used against him. Counsel
objects that Exhibit 2 and the signature thereon were not adequately
identified by Mr. Han. We believe that the interpreter's testimony
was clear and positive that prior to the signing the interpreter read
the statement back to respondent, and that iespondent signed his
name to the affidavit.
Therspeeial inquirtofficer cited Title 8, Code of Federal Regulations, section 242.14(en providing that a special inquiry officer may
receive in evidence any oral or written statement previously made
by the respondent or any other person during an investigation which
is material and relevant to any issue in the case. The Serviee Reprosentstive in oral argument referred to section 225 and section 2137(a)

of the Immigration and Nationality Act providing that any officer
or employee of the Immigration Service authorized by regulation
prescribed by the Attorney General, shall have power without warrant to interrogate any alien or person believed to be an alien as to
his right to be or to remain in the United States. We also commend
for respondent's consideration section 287(b) regarding the authority of an officer or, employee of the Service to take and admini-

ster oaths and take and consider evidence concerning the privilege of
any person to reside in the United - States.
Counsel stands upon the contention that the Government bears the
burden of proof in deportation proceedings. Section 291 of the Immigration and Nationality Act (8 U.S.C. 1361), however, provides:

In any deportation proceeding under chapter 5 against any person,
the burden of proof shall be upon such person to shot? the time,
place, and manner of his entry into the United States, but in present216

_

Interim Decision. #1479
ing such proof he shall be entitled to the production. of his visa or
other entry 'document, if any, and of any other documents and records, not considered. by the Attorney General to be confidential, pertaining to such entry in the custody of the Service. If such burden
of proof is not sustained, such person shall be presumed to be in.the
United States in violation of law.
Respondent attempts to draw an analogy between the priliminary
statement (Ex. 2) made by him and the preliminary interrogations
in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 Led. 2d 977
(1964), and ilfassiah v. United States,. 377 U.S. 201, 84 S.Ct. 1199,
12 Led. 2d 246 (1964), -wherein it was held that an indicted defendant was entitled. to the aid of counsel following interrogation
by police in an extra-judicial proceeding. Messiah, and Escobedo are
criminal cases concerned with the admissibility of incriminating
statements made by the defendants in absence of counsel and prior
to trial. In Mania. the incriminating statement was obtained. by a

federal agent after indictment while the accused was free on bail.
The accused in the Embed° case made the incriminating statement during a police interrogation prior to indictment and after
the police had denied his request to consult with his attorney. The
police also failed to inform thi accused .of his right to remain
silent. The convictions of both Messiah and Escobedo were reversed on constituticeial grounds. It has been held. repeatedly that
immigration proeiedings are civil rather than criminal, ifareelZo v.
Bands, 349 U.S. 302, 99 L.ed. 1107 (1955), and that the rules of evidence applicable in courts of law in criminal proceedings need not be
followed. U. Seas rel. Impastato T. O'Rourke, 211 F.2d 609 (8th
Cir., 1954), and cases cited. (cert. den. 348 U.S. 827).
All of counsel's arguments regarding the admissibility of Exhibit
2, the Government's burden of proof, and. the complaints regarding
fair hearing and due procesa were made and rejected in Pereira V.
Hurt, 169 F. Supp. 81 (D.C. N.Y., 1958), and Vlisidis v. Holland,.
150 F. Supp. 678 (D.C. Pa., 1957). The latter case particularly
briefs exhaustively the issues of the civil nature of deportation proceedings, adverse inferences from silence, and proof from official records. Pereira and Vlisidis were both alien seamen who jumped ship
in the United States, who gave preliminary statements to immigrant
inspectors, and who acquired counsel for hearings, following which
they stood mute. On appeal they claimed that they had not been
given due process and a fair hearing. Vlisidis quotes from Williams
v. Butterfield, 145 F. Supp. 567 (D.O. Mich., 1956), as follows:
The concept of due process is, of course, applicable to such a proceeding. but it
does not necessarily embrace judicial rules of evidence. The plaintiff was
afforded a hearing before the proper administrative agency ,. He tens given 312

217

Interim Decision *1479
opportunity to testify and present evidence. Me declined to exercise his right

in this regard.

Respondenthas not denied that he is an alien, nor has he asserted
that he is lawfully in this country. To paraphrase *Vlisitlis, the alien
who-stands' mute at his hearing stands in no better position than
that of an alien who chooses to testify. Sooner or later he must
show his right to stay in the United States, or he must depart.
The trial attorney for the Immigration and Naturalization Service
offered in evidence the passport alleged to be respondent's, and containing• some of the same information as that set forth in Exhibit 2.
The special inquiry officer refused to accept the passport in evidence.
In Pereira v. Murff i supra, this Board disregarded a passport offered -under similar circumstances, but the court stated, "I- find that
the passportivas also properly introduced into evidence". Since the
epeCiay inquiry officer declined to admit the passport,' of course, it is

not. in evidence here.
We find that the special inquiry officer's determination of deportability was based upon reasonable, substantial and probative evidence,
and that respondent's assertions that the proceedings were improperly conducted, and that error was committed in the admission
of evidence, are groundless. We find respondent to be an alien and
deportable on the charge set forth in the order to show cause. The
appeal will be dismissed.
ORDER: It is ordered that the appeal be and is hereby dismissed.

218


Interim Decision #1490

lirAT TER OF OALIDILLO—VILTALOBOS

In Deportation Proceedings
A-8469070
Decided By Board July 8, 1985
Respondent is ineligible for a nano pro Vino waiver wader section 212(g), Immigration mid Nationality Aet, as amended, of the ground of excludability
(section 212(a)(9)) existing at the time of his last entry in 1888, based
on a claim of hardship to his alleged 'United States citizen wife whom
he married on May 24;1995, and to the child of this union,'since this marriage did not exist at the time of his last entry.
CHARGE •
•

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1))--Convicted
of crime involving moral turpitude—incest.

Respondent, a 42-year-old married male alien, native and last a
citizen of Mexico, was admitted to the United States for permanent
residence in 19b3. In 1960 he was arrested in Juarez, Mexico, for
incest and held for two months while awaiting trial; in 1961 hewas convicted and sentenced to imprisonment for two years and
six months (ha served no time under the sentence). Respondent last
entered the United States on January 31, 1963. He was them
excludable as one who had been convicted of a crime involving
moral turpitude prior to his entry (section 212(a) (9) of the Act,
-8 U.S.C. 1182(a) (9)). We found respondent deportable (January 15, 1965) and we
denied his application for a waiver, vow pro' tuna, under section
212(g) of the Act (8 U.S.C. 1182(g)) of the ground of excludability existing at the time of his last entry. The application for the
waiver was based upon the claim that exclusion would result in
extreme hardship to his United States citizen wife (Maria de Jesus
Caudillo) and citizen daughter (Juanita. Caudillo). The applica
tion was denied on the ground that respondent's deportation would
not result in. extreme hardship to the citizens sincehe bad not lived
with them for some time, since he had been deceitful in revealing
259

Interim Decision ;#1490
the nature of the relations with them, and since he had been convicted of a crime involving moral turpitude.
Respondent now requests that he be granted the waiver under
section 219(g) of the Act because his deportation would'now result

in extreme hardship to Eliza Subia, allegedly a United States citizen
whom he married on May 24, 1965, and to the child of this union
(Gabriel) who was born on . March 24, 1964; Eliza Subia, was
expected to give birth to a second child 'shortly.
The Service opposes the motion on :the ground that respondent is
not eligible for a Tam pro tune waiver based on a claim of hardship
to Eliza Subia and the child of this union since ha had not been
married to her at the time of his last entry. The contention is well
founded.
We are not authorized to grant an advance waiver since the respondent requires a visa to enter the United States for permanent
residence and we do not have the power to grant the relief under
such circumstances (Matter of DeG— 8 I. & N. Dee: 325; Matter
of DeF : ,
– -

8LR

•

N. Dec. 68).

(A motion for reconsideration or reopening was denied by the
Board on April 21, 1965; the motion requested reconsideration
under Rosenberg v. Fleuti, 347 U.S.• 449.)
ORDER: It is ordered that the motion be and the same is hereby
denied.

260