Interim Decision #1911
MATTER OF Doo
In Deportation Proceedings
A-15149545
Decided by Board October 18, 1968
Where a Service investigator, in possession of the name and a picture of respondent and information of his possible illegal presence in this country,
made an investigative search of a restaurant where respondent was employed, during the course of which interrogation respondent identified himself and voluntarily produced and turned over to the investigator his
Form 1-95 ("Crewman Landing Permit"), such Form 1-95 is admissible
in evidence in deportation proceedings.
CfLARGE ;
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2)]—Crewman
—remained longer.
ON BEHALF OF REsPONDENT: ON BEHALF or SERVICE:
David Carliner, Esquire B. A. Vielhaber
Warner Building Appellate Trial Attorney
Washington, D.C. 20004
The special inquiry officer on May 31, 1968 found respondent
deportable as charged and ordered that he be deported to the Republic of China on Formosa on the charge contained in the order
to show cause. The instant appeal ensued.
The respondent is a 45-year-old male, a native and citizen of
China, who entered the United States at Portland, Maine on or
about August 12, 1966, at which time he was admitted as a crewman authorized to remain in the United States for the period of
time his ship remained in port, not to exceed 29 days. He failed
to depart with his vessel. Respondent does not concede deportability. In fact he remained mute during the hearing on advice of
counsel. Respondent did not apply for any form of discretionary
relief.
Counsel for respondent argues that the proceedings should be
terminated because there was admitted into evidence over his
objection respondent's "Crewman .Landing Permit," Form 1-95
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Interim Decision * 1911
(Ex. 2), which had been illegally obtained from him while he was
under an illegal arrest because he had been arrested without a
warrant. Counsel contends that without this item of evidence deportability was not proved.
The facts as to what actually occurred when an officer of the
Immigration Service confronted the respondent at his place of
employment on May 28, 1968, are set forth fully in the special inquiry officer's decision and in the transcript of the hearing.
Briefly, the respondent, who is a cook at a restaurant in Washington, D.C., was approached by an investigator of the Immigration and Naturalization Service, and after identifying himself he
asked the respondent his name and the respondent readily furnished the came. The investigator then asked to sae any immigration papers which he might have and the respondent replied that
the papers were downstairs in a locker room. It appears that the
respondent, accompanied by the investigator, proceeded to the
locker room where the respondent voluntarily produced and
turned over to the investigator the Form 1-95. The respondent
was then taken to the offices of the Immigration Service, at which
time the order to show cause (Ex. 1), which had previously been
issued on May 22, 1968, but never served upon the respondent,
was then handed to him. Service is conceded.
Under section 287 (a) (1), Immigration and Nationality Act, (8
U.S.C. 1257 (a) (1) ), an officer of the Service is authorized without
a warrant to interrogate any alien or person believed to be an
alien as to his right to be in or to remain in the United States. In
this case the investigator had ample reason to believe that respondent was an alien remaining in the United States without
right, because the investigator had in his possession the name of
the alien and his picture (Ex. 3), and information that such alien
was possibly illegally in the United States. In other words, it was
clear that the Service was looking for him. Further, the respondent did correctly identify himself to the Service officer. Information obtained during an interrogation made pursuant to section
287 (a) (1) of the Act is admissible into evidence.1
Counsel contends that during the events leading up to and at
the time the Form 1-95 was actually turned over to the investigator there was in effect an arrest and since the arrest took place
without a warrant, it was illegal; thus the document was illegally
obtained and should not have been admitted into the record. We
do not hold that respondent was under arrest during the time he
was first interrogated and when he turned over the crewman
2 See Matter of Chen, 12 I. & N. Dec. 603, February 6, 1968.
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Interim Decision #1911
landing permit to the investigator. The investigator had not told
the man that he was under arrest, had not stated in any manner
that the man was not free to go, but he did ask questions concerning his identity and any immigration documents he might have.
We refer to the case of People v. Rodney P. (Anon), New
York Court of Appeals, November 30, 1967, 36L.W. 2377, in
which the court held that statements made by a suspect who was
interrogated by police in his backyard without being warned of
his rights under the Fifth and Sixth Amendments, but who was
neither told he was under arrest nor physically restrained in any
way, are admissible, even if he was the focus of investigation, because there had not been an arrest, although he might have been
restrained had he attempted to leave. The court said in that case:
"This kind of questioning is little different from routine police investigation of crimes or suspicious conduct at a person's home,
his place of business (emphasis supplied), or on the street." The
court held that there had not been an arrest. We think that the
case before us is on all fours with that holding. Here, respondent
was neither told that he was under arrest nor was he physically
restrained in any way, although it is clear that if he had tried to
abscond he would have been restrained.
We hold that the crewman landing permit was correctly admitted into evidence.
Assuming arguendo that an arrest had been made, the facts in
this case (that he had jumped ship and that he had evaded the
Immigration Service officers for almost two years), amply justify
an arrest without a warrant under section 287(a) (2), Immigration and Nationality Act (8 U.S.C. 1357 (a) (2) ), which authorizes
the arrest of an alien who 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.
Accordingly, we will dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
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