Interim Decision #1552
Mlairat Or PANG -
In Deportation Proceedings
A.:-.15169631
Decided by Boarrd February 8, 1966
(1) Where respondent refused to testify at the reopened hearing conducted
for the purpose of establishing an alternate place of deportation, acceptance
into evidence by the special inquiry officer' at the reopened proceedings of
information from respadent's Government "of Hong Kong Seaman's Discharge Book was not in error and such information is admissible in evidence.'
(2) Since respondent, an illegally landed alien, has offered nothing to controvert the evidence presented by the Government as to his citizenship and
place of prior residence abroad and he•has re,.mained mute in the two hearings that have been accorded him, he has bad adequate opportunity to be
heard and his request for farther hearing is denied as frivolous.
We dismissed respondent's appeal on June 9, 1965, after full consideration bf the entire record. Matter of Pang, Int. Dec. No. 1479.
He was ordered deported to the Republic, of China on Formosa, but
that'governmont refuged' to accept respondent.. Therefore, on Septenil* 27, 1965, we 'directed that the hearing be reopened in order
that-the record . might include additional evidence concern/tit an alternate place of deportation. At the reopened hearing the alien confined to refuse to testify:. The special- inquiry officer now directs
that the respondent be deported to Hong Kong. Counsel again appeals, but be requests no- folio_ of relief, except that "the matter be
sent book for further testimony at the hearing level." The appeal
will be dismissed.
We will not restate the facts set forth in our previous decision,
but that decision is incorporated herewith. The record now contains
two pieces of evidence supporting the order et the special inquiry
officer to deport respondent to Hong Song. Respondent's affidavit,
Exhibit 2, dated November 6, 1964, given to an investigator for the
Immigration Service, was in the record when the case was here in
•Reaffirmed, 868 F.2d 637.
489
Interim Deiciaisil. #1552
June 1965. Respondent told the investigator that he is married to a.
Chinese woinan living in Hong Kong, that they have two Children,
ages 5 and 7, that he is a citizen of China, born at Kwantung, China,
that he last arrived in the United States at New York on September
4, 1962, on the SS "Clydefield" as a member of the crew, was refused
permission to go ashore by the immigration officers, but went ashorein violation of that order. We, found in cur previous decision over
the objections of counsel thit this' ''sttiteMkit was admissible in evidence under Title 8, Code of Federal Regulations, section 242.14(c),
and under judicial decisions and priOr deciaiOns of this Board.
At the first hearing the special inquiry._ officer refused to accept the
Service offer, of the respondent's Government of Hong Kong Seaman's Discharge Book- No 2848.. -Wet:implied: that the offer was
proper, citing Peirers v. kw-if, 159 F. Supp. 81 (D.O.N.Y., 195R),
wherein 'this Board had disregarded a passport offered -under similar
circiunitances, be the court commented' that the 'passport was properly introduced evidence.' ,At 'ffie reopened hearing the trial
attorney again offered this document or information from it. The
special inquiry officersccepted the offer. He did not.place the book
in evidence, but read the information into the record (R-4). The
book shows-the name of Pang Chin, his rating as a sailor, his date
of birth as 2-1.0-1930 and the date of issue as 7-12-54. The special
inquiry officer stated Lat it contains "a good. likeness" of respondent.
It shows respondent's place of birth as Kwangtung, China, that he
was .exigaged on .June 24,19614 at Hong Song on the SS "Ban * dustart"' and discharged April 12, 1962 at Hong Kong, that he was -
signed, on the SS. "Olydefield" at Hong Kong on June 13, 1962, and
there-is no notation Concerning discharge. Exhibit2 also states that'
respondent. CATIIS to the United. States, on. the SS "Hindustan" in •
■
1961 or 1962 and was refused shore leave rand that he arrived at New
York on September 4, 1962, ort 'the SS. "Olydefield". The fact that
As book contains no,', notation that he was: discharged from the
`Clydefield" is .consisten
t his statement that he arrived in New
fork on that ship on September .4, 1962, and did not depart with
Lis vessel.*
In. his brief ,aseorspanying the appeal counsel again 'challenges the
,reeeediog, stating that the rules of evidence have been ignored, that
Exo "resident'alien".is 'entitled to a fair hearing, that the admission
ito evidence of information from the respondent's Hong Kong seatan's discharge bocik - i.§ eirbr,lhat there was failure to authehticate
Us document and that no foundation as to the document itself was
' Counsel contends that the information contained in the sea-.
an's book was hearsay, and that withotit the book there is nothing
490
Interim Decision #1552
in the record to support the special inquiry officer's order of deportation to Hong Kong. The special inquiry officer overruled counsel's
objections.
On advice of counsel respondent elected to remain mute at the reopened hearing, as he had at the original hearing. Counsel contends
that respondent should be endowed with the same privilges and im-
'inunities as the defendant in a criminal proceeding who is shielded
with the cloak of innocence and cannot be compelled to give testimony against himself. This contention was discussed and dismisaed
by Bilokunvsky v. Tod, 263 U.S. 149, wherein Mr. Justice Brandeii
stated:
Silence is often evidence of the most persuasive character . . . there is no
rule of law which prohibits officers charged with the administration of the
Immigration law from drawing' an Inference from the Silence of one who lo
called upon to speak ... A person arrested on the preliminary warrant is not
protected by a presumption of innocence iri a criminal case. These is no provision Which forbids drawing an adverse inference from the fact of standing
mute.
_•
• So far as we are aware, the rule is still that elucidated in Bilokurnsky v. Tod. United Etates v. Sahli, 216 F.2d 33, 39 (7th Cir., 1954),
and Catean o -v. Shaughnessy,
133 F. Supp. 211 (S.D.N.Y.,.1955),
rely on Bilolounisky and reject the argument that a person in deportation proceedings should. be surrounded by the same safeguards as
a person charged with crime. In Caetano the court says, "Sufficient -
answer to this position is that the courts lave uniformly held to the
contrary", citing cases.
In Hatter of Psarelis,
7 I. & N. Dec. 133, wherein the Board held
that-the alien's preliminary sworn statement may. be relied upon as
evidence of deportabili,ty, there was no other evidence but the inference drawn from the alien's silence: In Matter of Rupino Soares, -
7 I. & N. Dec. 271, and Matter of Darner,
5 I. & N. Dec. 738, we also
held that refusal to testify without legal justification concerning
matter of alienage, time and place -of entry, and lack of proper
documents, justifies the drawing of unfavorable inferences.
We are not left in - the instant case to draw inferences from respondent's silence. There is sufficient evidence to support a finding
that he is an alien, illegally in the United States, and deportable as
such. The information taken from the seaman's book was admissible
for the purposes for which it was used here. We have no.doubt that
one of its purposes is to establish the identity of its owner.
In Abel v. Ignited States,
362 U.S. 217 (S.Q., March 28, 1960),
Justice Frankfurter discussed the legality of the seizure and use of
documents belonging to an alien under deportation proceedings—
forged birth certificate, a certificate of vaccination, a bank book, etc.,
401
Interim Decision #1552
all in false names, and said, "We can see no rational basis for excluding these relevant items from trial." Dote v. United States, 223
F.2d 309, 310 (D.C. Cir., 1955), found that a series of evidentiary
documents presented by the Government were admissible; among
them was a birth register from Italy, a manifest showing voyages to
this country of persons with names of appellant's family members,
New York State census records including the family, including one
Ninth the name of defendant. The court stated. (per Judge Prettyman) that this documentary evidence, if believed, made the conclusion as to respondent's alienage inescapable.
This alien landed illegally in the United States. He offered nothing to controvert the evidence presented by the Government as to his
citizenship and his place of prior residence abroad. Counsol'a roquest that this ease be returned for further hearing is frivolous when
respondent has declined to testify in the two hearings that have been
accorded him. He had adequate opportunity to be heard. The appeal will be dismissed. .
ORDER: It is ordered that the appeal be and is hereby dismissed.
492
