YAM

 Interim Decision #1848




                                         OF YAM.

                        In Deportation Proceedings

                                  A-15950259

                     Decided by Board March, 19,1068
Where, as a result of a routine Service investigative search of a restaurant, an
   alien produced two documents (an executed warrant of arrest and an order
  of supervision) in different names, the investigator was justified in believing
  the alien to be in the United States in violation of law and likely to escape
  before a warrant of Arrest could be obtained, and since following arrest the
  alien was taken without unnecessary delay for examination before a Service
  officer who took an affidavit from him and obtained an order to show cause
  and a warrant of arrest, the alien's arrest without a warrant was not
  illegal and the documents produced by him during the search and the affidavit
  obtained following arrest are admissible in evidence in deportation proceedings.
Onus= :
  Order: At of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) [—Excludable at
                          entry, previously excluded, no permission to reapply
                          within year.
          Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at
                          entry, previously deported, no permission to reapply
                           (as amended).
ON BEHALF OF RESPONDENT :                   ON BEHALF OF Ssavica:
  Jack Wasserman, Esquire                     Irving A. Appleman
 Warner Building                              Appellate Trial Attorney
 Washington, D.O. 20004                        (Brief filed)
  (Brief filed)

   The case comes forward on appeal from the order of the special
inquiry officer entered October 23,1967 finding the respondent deportable on the charge stated in the order to show cause, as amended,
denying voluntary departure and ordering respondent deported to
Hong Kong.
   At the hearing respondent remained mute upon advice of counsel.
The order to show cause alleges that the respondent is a native and
citizen of China who entered the United States at Philadelphia, Pennsylvania on or about September 20, 1966; that he was arrested and
deported from the United States on November 17,1965 at Honolulu,


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Hawaii; that he did not receive consent from the Attorney General
to apply for readmission to the United States; and that he was found
in the United States on October 12, 1967. The order to show cause
charged that respondent was deportable under section 241(a) (1) of
the Act, in that, at time of entry he was within one or more of the
classes of aliens excludable by law existing at the time of such entry, to
wit, aliens who have been excluded from admission and deported and
who again seek admission within one year from date of such deportation, consent to reapply for admission not having been granted by the
proper authority, under section 212 (a) (16) of the Act. Prior to
rendering his decision the special inquiry officer permitted an amendment of the charge of deportability against the alien as one who has
been previously arrested and deported, in whose case consent to reapply for admission has not been granted by the proper authority.
   Counsel objected to the amendment or propsed amendment, alleging
it came after the close of the hearing. The special inquiry officer properly ruled that the hearing had not been closed inasmuch as he had
not yet rendered a decision in the case. Counsel then stated that under
the rules he was entitled to an adjournment. The special inquiry officer
agreed that he was so entitled but counsel waived the adjournment.
  It is believed that counsel has not been harmed nor misled by -the
 amended charge. The same factual allegations of the order to show
 cause are used, only the technical wording of the charge has been
 change to conform to the factual allegations. Counsel did not object
 that the additional charge was not lodged in conformity with 8 CFR
 242.16 (d). His only objection was that the charge was amended after
 the close of the hearing whereas the hearing had not as yet been closed
inasmuch as a decision had not been rendered. Counsel waived the
adjournment to which he was entitled, and therefore appears to have
acquiesced in the propriety of amending the charge in the order to
show cause. The record, in the form of Exhibits 2, 3 and 4, establishes
deportability.
   Counsel alleges that the arrest of the respondent without a warrant
was illegal and that the documents taken from him and the affidavit
 (Ex. 2) executed by him should be suppressed. Immigration Investigator Podrasky testified that he and three other investigators, later
joined by two others, made a routine search operation of the premises
operated by the respondent as a restaurant. Investigator Podrasky
stated there was no need to carry a warrant of arrest -because they had
no information about the alien being here illegally until he got to the
restaurant; that the respondent was present with his bookkeeper with
whom he could not communicate. The respondent called a friend who
acted as an interpreter. While waiting for the friend to arrive the


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 respondent continued working. The investigator testified that the respondent furnished two pieces of paper, one an executed warrant of
  arrest in the respondent's name; the other, a Form I-220B, an Order
  of Supervision in the name of Yung Ing Wa (phonetic). The investigator testified that 'because of the production of these two documents
 in different names he did not know whom he had and he then made a
  determination that the respondent might abscond. He then asked the
 respondent to come to the immigration office where he executed the
 affidavit, with the same friend of the respondent acting as interpreter.
 Upon the basis of this affidavit the investigator applied for and remixed a warrant of arrest and order. o show cause which were served
 upon the respondent at about 8:00 p.m. of the same evening of October 12, 1967- Subsequent to the issue of the order to show cause and
 warrant of arrest, the investigator obtained from the New York office
 the respondent's file which contains Hong Song Seaman's Identity
 Book No. 47427; a Form 1-195 showing the refusal of admission of
 the respondent on September 20, 1066 at the port of Philadelphia (Er.
 3) ; and a warrant•f deportation relating to the respondent showing
 his deportation from the United States on November 17, 1965 from the
 port of Honolulu (Ex. 4).
    Counsel contends that the respondent's arrest was illegal because it
 was accomplished without a warrant. Section 287 (a) (1) of the Immigration and Nationality Act (8 U.S.C. 1357 (a) (1) ) states that any
 officer or employee of the Service authorized under regulations 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. It is clear that this provision
was ample authority for the interrogation of the respondent.
    Section 287(a) (2) of the Immigration and Nationality Act (8
 U.S.C. 1357(a) (2)) authorizes the arrest of any alien in the 'United
States if the officer has reason to believe that the alien so arrested is
in the United States in violation of any such law or regulation and is
likely to escape before a warrant can be obtained for his arrest, but
the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine
aliens as to their right to enter or remain in the United States. When
as the result of interrogation the respondent produced two different
types of documents, an unexecuted warrant of arrest in the respondent's name referring to an arrest April 18, 1965 and and Order of
Supervision (Form I 22013), in another name, Yung Ing Wa, the
                       -


immigration officer did not know whom he had, thought the respondent was likely to abscond because of the conflicting documents, asked
him to come to his office where the same friend of the respondent was


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used as an interpreter. There can be no doubt that the respondent understood the interpreter and the answers are fully responsive. The
investigator took an affidavit and obtained an order to show cause and
warrant of arrest, which were duly served about eight o'clock of the
same evening as the commencement of the interrogation. Under the
circumstances, in view of the possession of two conflicting documents,
the officer was justified in believing that the respondent was in the
United States in violation of law and was likely to escape before a
warrant of arrest could be obtained. The order to show cause and warrant were obtained after the respondent had been taken without unnecessary delay for examination before a Service officer? We therefore
believe that the arrest was not illegal and that the respondent's
affidavit and other evidence were properly admissible in evidence
under 8 OFR 212.11(0).2 .
   Inasmuch as the respondent remained mute upon advice of counsel,
the special inquiry officer denied the privilege of discretionary relief
of voluntary departure. Since the "respondent must. establish eligibility
for discretionary relief, the special' inquiry officer's denial o•such relief under the circumstances was proper.
  ORDER; It is ordered that the appeal be and the same is hereby
dismissed.
  'Matter of Chen Chin Ding, Int. Dec. No. 1833 (February 6, 1908) ; United
States v. Alvaredo, 

 (2d Cir., 1983) ; Pinero-Lopez v. Kennedy, 

 (D.O. 1961), cert. den. 

; Diogo v. Holland, 

 (3rd
Cir., 1957) ; Tsimounia v Holland 182 F. Snpp. 754 (E.D. Pa.i 1955).
  2 Cf. Shiny Hang Tsui v. Immigration and Naturalization Service, No. 16246

(7th Cir., January 31, 1968).




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