Interim Decision #1833
MATTER OF CHEN
In Deportation Proceedings
A-15769498
Decided by Board February 6, 1968
Where, ao a =Emit of a routine Service investigative search made of a restaurant
with the consent of the owner, an alien employee was arrested and a statement
under oath thereafter obtained from him, such arrest was not illegal and the
statement is properly admissible in evidence in deportation proceedings.
°HAWS'
Order: Act of 1952—Section 241(a) (2) [8 U.S.0. 3251(a) (2)1—Crewmanremained longer.
ON BEHALF OF RESPONDENT. ON BEHALF or SESTION:
Jack Wasserman, Esquire Irving A. Appleman
Warner Building Appellate Trial Attorney
Washington, D.O. 20004
The special inquiry officer ordered the respondent, a native and
citizen of China, deported. He found respondent had been admitted
on January 12, 1967 at San Diego, California as a crewman, and had
remained illegally in the United States after the period for which he
was admitted. Respondent's appeal raises no question as to these facts,
but contends that they have been found from illegally obtained evidence and cannot, therefore, sustain an order of deportation. Asserting no legal right to remain, he asks that he be permitted to depart
voluntarily. We find the record properly establishes that the respondent is deportable. We shall dismiss the appeal.
Between 4 and 5 p.m. on September 14, 1967, experienced Service
investigators at Washington, D.C., decided to check the employees of
a restaurant to determine if any was an alien illegally in the United
States. The investigation was a routine one. The investigators had no
information that an alien illegally in the United States was employed
there.
Investigator Taylor, a veteran with over 18 years of service, nine of
which were as an investgator in the Washington area, was in charge of
the operation. At about 7 :SO p.m., he assigned an investigator to each
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321-654--89--10
Interim Decision #1833
building exit (two side, one rear) and he and Investigator Podrasky
entered by the front door (Podrasky was to keep an eye on those
leaving by the front door). Taylor told the head waiter who greeted
them, that they desired to check the employees for the presence of
aliens illegally in the United States. The head waiter told them he
would turn the matter over to Mrs. Malonson, a director of the corporation owner, who was then on the lower level of the restaurant. Mrs.
Malonson came upstairs to Taylor. He identified himself and asked if
the investigators could speak to those of her employees who were
aliens. He told her this would be done quietly, in the easiest manner for
all concerned, and without disrupting her operation. Mrs. Malonson
stated that they were very busy, but made no objection, and she gave
Taylor permission to check the employees (pp. 20 81).1 -
There is a conflict about respondent's entry on the scene. Inspector
Griedel was posted at a side door exit. This is his testimony. About ten
minutes after he had been posted, he saw respondent coming out of the
side door. Griedel identified himself. Respondent ran back into the
building. Griedel chased him through the kitchen, then down steps to
the lower level where he caught up with him. Griedel asked respondent
if he was a citizen. Although there was a language barrier, Griedel
understood respondent to say that he was a student, and that he wanted
to talk to the owner. Griedel followed the respondent to the upper
level where Mrs. Malonson was talking to Taylor. Griedel told Taylor
what had happened and turned the matter over to him (pp. 42-43;
48-54). Griedel did not have anything to do with the determination
to arrest respondent (p. 60).
Respondent contradicted Griedel's story (pp. 62-63). (He testified
only on the limited issue as to whether he was trying to abscond from
the restaurant; he remained mute on advice of counsel as to other
matters.) He Made no attempt to leave the building. He was on the
lower level gathering items for the kitchen. Griedel appeared behind
Mrs. Malonson's testimony on this issue follows :
And there were, I believe, four or five Immigration inspectors that came in
and I was downstairs at the time where he was, Mr. Chen [respondent] .. .
I was told by the Maitre de (sic) that there were Immigration officers come
to check everybody's identity. Everybody who was working on the premises.
So first remark I made was that this was a heck of a time [it was the dinner
hour) to- try to find who is, who's got an identification card or not. However,
I went upstairs And they said they would like to cheek everybody's identity,
and as ranch as I objected to it I said, "That's line with me.", and I told the
Maitre de (sle) to bring just about' everybody in the restaurant to the front
and that they may check their identification (p. (She also testified that
about 150 people were in 'the restaurant and that the investigation interrupted
'the dieititiiin 464 restaurant bp. 11-74).)
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Interim Decision #1838
him, identified himself, and asked for identification papers. He had
none. Griedel took him upstairs where with the aid of another employee of the restaurant, he talked to Griedel (pp. 61-65).
Taylor corroborates Griedel's testimony. He saw Griedel, whom he
had stationed. outside, approaching with the respondent in front of
him but not in custody (pp. 32-33; 35-37). Griedel told him that the
respondent wanted to talk to the owner. He asked Mrs. Malonson if
there was a quiet place where he could question respondent and asked
if she could supply an interpreter. She sent over a waiter who spoke
with the respondent and reported that they could understand each
other. He identified himself. Respondent was not advised he was not
required to answer questions or that he had a right to counsel. He asked
the respondent how he came to the United States and if he had proof
he was a student as he had claimed. Respondent had no proof. He was
asked to show whatever documents he had to establish his immigration
status; he produced a crewman landing permit showing that he had
been admitted to the United States on January 12, 1967 and was to
depart with his vessel, but in no event was to stay more than 29 days
(Ex. 2).
Taylor decided that respondent was illegally in the 'United States,
and that he was likely to abscond, because he failed to depart as required of those admitted as seamen, because Griedel had told him that
the respondent had attempted to leave by the side door, because the
alien refused to tell where he lived, and because the alien had no close
relatives in the United States (p. 35). Taylor told the alien he considered him illegally in the United States. He took respondent into
custody (p. 34) and with several other investigators brought him to
the Service office. 2 They arrived about 8 p.m. A warrant of arrest was
obtained and served at 10:12 pan. The respondent was then taken to
the police station where he was held overnight.
- '
The following day Griedel took a statement under oath from the
respondent. The respondent admitted he was a Chinese national who
had entered as a crewman on January 12, 1967, and he had deserted his
vessel on January 16, 1967 at Los Angeles, California (Ex. 5).
We resolve the conflict in the evidence in favor -of Griedel. Respondent's credibility is questionable; he tried to pass as a student before
both Griedel and Taylor. His story is improbable. We find it diffiBefore leaving, Taylor asked the owner if he could search Ur storage room.
Mrs. Malonson left to speak to her ,husband shunt. the request. He "Ischia to
such a search but she convinced him to cooperate (p. 75). She returned with the
keys unlocked two or three doois whisk were closed and permitted Taylor to
make a search. No one was found (pp. 39-40). Taylor queritioned abbot she employees and Prodasky several others. There :were about 24 employees An -the
restaurant (p. 74).
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Interim Decision #1833
cult to believe that Griedel, without more, would have left his post
unguarded to make his way into the interior of the restaurant. It is far
more logical that he left to pursue the respondent, who fled after
Griedel identified himself.
Counsel contends that when the exits to the restaurant were covered by Service investigators, the respondent's freedom of movement was restricted and this restriction constituted.= arrest one in
—
violation of the 4th Amendment since it occurred without a warrant.
He further contends that if the arrest did not occur then, it occurred
when Griedel stopped and questioned the respondent.
We do not find that the posting of investigators was an arrest. Nor
do we find Griedel's action in questioning the respondent constituted
an arrest. This action is little different than a routine police field interrogation a routine investigation of suspicious conduct. Such interro-
—
gation does not constitute an arrest (See Ponta v. United 'States,
95 F. 2d 412, 413, 9th Gr. 1938 ; Peo v. Rodney P. (Anon.), N.Y. Ct.
App. 11/30/67, 36 L.W. 2377). Griedel did not take the respondent to
Taylor, he accompanied the respondent to see Mrs. Malonson as the
respondent had asked. We do not believe the arrest occurred until
Taylor, after having examined the respondent, determined to his
satisfaction that the respondent was illegally in the United States and
told him that he was going to take him to the offices of the Immigration
Service.
If Griedel's actions are considered an arrest, the arrest was a justified one. Griedel with knowledge that employees of the restaurant were
to be questioned concerning their immigration status, saw the respondent attempt to leave the building shortly after Griedel's partners had
entered the restaurant. The respondent could not speak English well
and he ran when he became aware of Griedel's identity.
Taylor's interrogation of the respondent was justified under section
287(a) (1) of the Act (8 U.S.C. 1357(a) (1) ) which gives service employees the right to interrogate without warrant any person believed
to be an alien as to his right to be in the United States. Taylor's action in arresting the alien was justified under section 287(a) (2) of the
Act (8 U.S.C. 1357(a) (2) ) which authorizes the arrest of an alien
whom the officer has reason to believe is in the United States in violation of law and "is likely to escape before a warrant can be obtained for
his arrest." (See United States v. Alvarado,
321 F.2d 336, 2d Cir.
1968; Pfneiro-Lopes v. Kennedy,
293 F.2d 540, C.A.D.C. 1961, cert.
den. 868 'U.S. 866; Diogo v. Holland,
248 F.2d 571, 3rd Cir. 1957;
Talmounis v. Holland,
132 F. Supp. 754, E.D. Pa. 1955.)
Counsel. contends that the Service was not authorized under section
237 of the Act to enter the restaurant without a warrant. The eon-
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Interim Decision #1833
tention must be dismissed. Taylor went in to ask the owner for permission to question the employees. Service officers need no authority
to enter a public place to ask the owner for permission to question his
employees or to obtain his consent to search the place. (Ammo v.
United States, 247 F.2d. 947, 9th Cir. 1957, cert. den.
355 U.S. 916).
Here there was an intelligent consent. Mrs. Malonson knew she could
refuse a search. In fact she talked her husband out of his objection.
There is no evidence that the consent was obtained by duress. Taylor
testified he would have changed his plan if there had been any
objection.
Moreover, it was not the search of the premises which resulted in the
respondent's apprehension, (Taylor was still speaking to the owner
about preliminary arrangements when respondent appeared before
him and the owner (pp. 10-15) ) but respondent's attempted flight from
the building and the unsatisfactory explanation he gave.
Counsel's contention that the Service arrested respondent without
first determining that he was likely to escape is contradicted by the
evidence. Taylor, giving the basis for his conclusion, testified that he
had determined that the respondent would abscond if not taken in
custody (p. 35). Taylor's conclusion was a, necessary and reasonable
determination.
Counsel appears to be of the belief that an error was committed in
arresting respondent without advising him that he was being detained
because he might have absconded. No authority is cited for the contention. We find no error.
Counsel contends that the respondent's statement (Ex. 5) was made
while he was under an illegal arrest, and that Exhibit 2, the crewman's landing permit (given up by the respondent but not taken
from him (p. 56) ), and other evidence obtained as a result of informs-
(lull furnished by the respondent (Ex. 3, Republic of China passport
issued to the respondent; Ex. 4 crew list of the SS "Oriental jade"
which departed January 22,1967 showing respondent had deserted)
should have been suppressed. We do not believe the arrest was illegal.
We believe the evidence was properly in the record and it was proper
to consider it.
The special inquiry officer denied respondent's request for voluntary
departure because the respondent had refused to testify in connection
with the application and had therefore failed to establish eligibility.
Counsel contends respondent was compelled to forego testifying on
the merits to preserve issues as to deportability and alienage. Counsel
asks that voluntary departure be granted because respondent has no
criminal record, he is gainfully employed, and he is in possession of
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Interim Decision 44888
funds with which to depart. We believe the special inquiry officer correctly found that the respondent had failed to establish his eligibility
for voluntary departure since he refused to be examined on the issue.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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