iterim Decision #2035
MATTER OF METHURE
In Deportation Proceedings
A-18160358
Decided by Board March 20, 1970
leportability under section 241(a) (9) of the Immigration and Nationality
Act is established by clear, convincing, and unequivocal evidence obtained
pursuant to lawful interrogation and arrest where respondent, who was
initially interrogated by a Service officer inside a Service vehicle, and who,
after leaving the car and while not under arrest, voluntarily admitted
working illegally, after which he was taken to the Immigration office,
where he was advised of his rights under the Miranda rule, and was
sworn upon an affidavit in which he admitted he had violated his immigration status as a student by engaging in employment.
CHARGE :
Order: Act of 1952 — Section 241(a) (9) [8 U.S.C. 1251(a) (9)]—Nonimgrant---failed to comply with conditions of status.
)N BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Martin A. Shlufman, Esquire Irving A. Appleman
515 Madison Avenue Appellate Trial Attorney
New York, New York 10022 Allan A. Shader
Counsel of record: Trial Attorney
Leon Wildes, Esquire (Brief filed)
515 Madison Avenue
New York, New York 10022
The respondent, a native and citizen of Guyana, has been found
3epoi table under section 241 (a) (9) of the Immigration and
Nationality Act as an alien who, after entry as a nonimmigrant
student on February 13, 1969 under section 101(a) (15) of the
said Act, failed to comply with the conditions of his nonimmigrant status. An order entered by the special inquiry officer on
April 28, 1969 grants the respondent the privilege of voluntary
departure in lieu of deportation with an alternate order providing
for his deportation to Guyana if he fails to depart voluntarily
when and as required. The respondent on appeal maintains that
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Interim Decision #2035
the evidence establishing his deportability was obtained by an
unlawful search and seizure.
The respondent, after remaining mute for a major portion of
the hearing, finally conceded that he was deportable as charged in
the order to show cause (pp. 46 and 57). Our discussion of the
facts will be limited to the respondent's claim that the evidence
establishing deportability was obtained by means of an unlawful
search and seizure.
The arresting officer, Joseph P. Lloyd, testified that he had
received an anonymous phone call informing him that a number
of aliens were illegally employed by the Randall Plastics Company located on 46th Road in Long Island City, New York (p.
19). Between the hours of 7:30 a.m. and 8:30 a.m. on April 9,
1969, while seated in an automobile parked in front of the Randall Plastics Company, he observed the respondent walking on the
sidewalk. Ile got out of his car, identified himself to the respondent as an immigration officer, and questioned him regarding
alienage and whether he had anything on his person to establish
his right to be in the United States. The respondent informed
Officer Lloyd that he was an alien; that his passport was at home;
and that he was on his way to school (pp. 12 and 13). At this
point, Officer Lloyd invited the respondent to get into his parked
car "to show me whatever type of identification he might have on
his person" (p. 13).
Officer Lloyd further testified that after the respondent entered
his car, he (respondent) pulled a "little notebook" from his coat
pocket which contained a notation that the respondent "had
started working after arriving in the country" (pp. 13 and 21).
When questioned by Officer Lloyd regarding the notation, the
respondent replied that he had not been working (p. 32). Thereafter, several aliens were brought to the car. They had just been
taken into custody by another Service officer while working in the
Randall Plant. None of them could identify the respondent as a
fellow employee (p. 32). Officer Lloyd testified that at this point,
it was decided that they did not have enough evidence to hold the
respondent; and that " . . . I called him out of the car, and I
walked away for about six feet or so in back of the car, and he
was behind me and as I turned to approach him he made a statement to me . . . he said he was working" (p. 36). The respondent
was then returned to the car and taken to the Immigration Office.
There he was advised of his rights under Miranda v. Arizona,
384 U.S. 436 (1966), and was sworn upon an affidavit in which
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Interim Decision #2035
he admitted that he had violated his immigration status as a student by engaging in employment.
Originally, counsel for the respondent informed the special
inquiry officer that the respondent would not testify pursuant to
the privilege contained in the Fifth Amendment to the Constitution (pp. 3 and 24). Following denial of counsel's motion to suppress the affidavit, entered as Exhibit 3, counsel waived the privilege and placed the respondent on the witness stand (p. 43). The
respondent's testimony with regard to the sequence of events
leading up to his arrest varies in some matters from the testimony
of Officer Lloyd. He testified that Officer Lloyd told him to get
into the car and stated, "you will have to make a statement"; that
after he got into the car, Officer Lloyd "searched me in my pocket
.. . put his hand in my coat pocket, pull out my pen, my pencil;
put his hand in the coat pocket and pull out the diary . . . he read
the diary and find that there is a date marked started to work
.. . then he said I will have to give him a statement" (pp. 47 and
48). The respondent further testified that Officer Lloyd "handcuffed me to the car" while he rounded up some more aliens (p.
49).
The respondent's testimony concerning the events leading up to
his arrest continues:
Then after rounding up these other guys they took us along to another
corner [of] the street so that the other guys could get their passports. Then
he call me over to him. He come up to the car a few feet back of the car.
He call me over and he say that I will have to tell him the truth and he ask
me where I was working. That if I didn't tell him that he will lock me up
and I was scared of—I was so afraid that well I told him that yes I was
working. (p. 49)
The respondent was then questioned as to whether at any time
during the aforementioned events he was informed that he had a
right to remain silent and that anything he said could be used
against him. He replied, "No sir" (p. 50). It is the respondent's
testimony that Officer Lloyd "put me hack in the car" after he
admitted that he was employed and took him to the Immigration
Office where he made the statement entered as Exhibit 3. The
respondent acknowledged his signature on Exhibit 2 (Form
1-214), which is the Usual statement informing an alien of his
rights, and his signature on Exhibit 3, which is the affidavit (p.
52). The respondent further testified that he did not read the
affidavit although there are initials showing that he made corrections on it. The respondent at first denied that the statement concerning the place of his employment was true (p. 54). He later
admitted the fifth allegation contained in the order to show cause
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Interim Decision #2035
insofar as it relates to gainful employment in the United States in
violation of his nonimmigrant status. He also admitted deportability (p. 57).
Counsel on appeal urges reversible error. He argues that the
respondent was found deportable solely on the basis of an admission which was obtained by an unlawful arrest without probable
cause. He maintains that the admission is not admissible in evidence because:
(1) The respondent was not warned of his constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), when first subjected to interrogation after his arrest.
(2) The incriminating statement was the fruit of an illegal search without probable cause at the time the immigration officer invited the
respondent into his car.
Section 287 of the Immigration and Nationality Act provides in
pertinent part that any officer of the Immigration and Naturalization Service:
. . . shall have power without warrant—(1) to interrogate any alien or
person believed to be an alien as to his right to be or to remain in the
United States.
This statute, plain on its face, gave the immigration officer
authority to approach the respondent on the street in front of the
Randall Company and invite him into his car for the purpose of
interrogating him as to his right to be in the United States. Furthermore, since the immigration officer had been informed that
aliens from Guyana were unlawfully employed by the Randall
Company, it was reasonable for him to believe that the respondent might be one of those aliens. A suspicion of alienage can be a
reasonable one if no more appears than that the person
approached is in an area in which illegal aliens have been
reported. Cf. Amaya v. United States, 247 F.2d 947 (9 Cir.,
1957), cert. denied
355 U.S. 916; Matter of Au, Yim and Lam,
Interim Decision No. 1981, and cases cited (BIA, 1969). At the
time of the immigration officer's initial approach, the respondent
admitted that he was from Guyana.
It is the respondent's contention that his initial arrest was
effected at the time he entered the immigration officer's car or at
least when, according to the respondent's testimony, his liberty of
movement was constrained by the use of handcuffs. While it is
true that the immigration officer testified that he probably would
have restrained the respondent if he had attempted to leave the
car prior to the completion of his interrogation (p. 17), there is
no convincing evidence that the respondent was under the impression that he had been arrested at the time he entered the immi-
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Interim Decision #2035
gration officer's car. There can be no seizure where the subject is
unaware that he is "seized," Yam Sang Kwai v. INS, 411 F.2d
683, 686 (D.C. Cir. 1969), cert. denied
396 U.S. 877.
There is no support in the record for the respondent's testimony that "they handcuffed me to the car" (p. 49) in order to
restrain him while the immigration officer assisted in the roundup of additional aliens. There is no testimony by Officer Lloyd
concerning the use of handcuffs while the respondent was seated
in his car. We note that counsel did not raise this issue when he
cross-examined Officer Lloyd. In fact when the respondent was
questioned as to "when did you get out of the car," he replied
that the immigration officer ". . . asked me to come over" (p. 50).
There is no testimony by the respondent that there had to be a
release of handcuffs before he could leave the car (pp. 49 and
50). Accordingly, we find no substance to counsel's claim that the
respondent's initial interrogation while seated in Officer Lloyd's
car amounted to an unlawful arrest.
We next turn to counsel's claim that the incriminating statement was the fruit of an illegal search. There is conflicting evidence as to whether the diary which contained a notation that the
respondent was gainfully employed was given voluntarily to
Officer Lloyd by the respondent or whether it came into the possession of the immigration officer by a search of the respondent's
person after he entered the officer's car. Regardless of how the
diary came into the possession of Officer Lloyd, the affidavit in
question (Ex. 3) was the fruit of the respondent's admission
after the immigration officer had reached the conclusion that
there was insufficient evidence to prefer charges against the
respondent, and was about to inform him that he was free to go
(p. 31). Even assuming some infirmity in the petitioner's arrest
without a warrant which might taint any document seized from
him, a deportation order will not be set aside when there is ample
competent evidence, as in this case, which, standing alone, will
support the order, Shing Hang Tsui v. INS, 389 F.2d 994, 995 (7
Cir., 1968) ; Valeros v. INS,
387 F.2d 921 (7 Cir., 1967).
It is the contention of counsel that the incriminating statement
entered as Exhibit 3 was tainted by the earlier admission of the
respondent which he alleges was obtained without warning the
respondent of his rights under the Miranda rule (supra). He also
argues that the respondent did not waive his constitutional rights
knowingly and intelligently. There was no "custodial interrogation" of the respondent at the time he voluntarily admitted that
he was employed, following his exit from the ear of Officer Lloyd.
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Interim Decision #2035
Under the circumstances, the rule in Miranda does not apply to
the voluntary statement of the respondent which he made prior to
his arrival at the immigration office. Officer T,loyd acted within
his statutory authority in transporting the respondent to the immigration office for he is enabled "to arrest any alien in the
United States, if he has reason to believe that the alien so arrested is in the United States in violation of . . . law . . . and is
likely to escape before a warrant can be obtained . • ." (8 U.S.C.
1357 (a) (2) ). Furthermore, we find no substance to counsel's
claim that the respondent did not intelligently and knowingly
waive his rights under Miranda. There is a certification in the
record signed by Officer Lloyd and another witness that the warning and waiver were read to the respondent, who also read it and
affixed his signature thereto in their presence. Exhibit 3 contains
a similar warning which was executed by the respondent. There
is ample evidence in the record that the respondent speaks and
understands the English language (p. 3). We find no support in
the record for the respondent's testimony that he did not understand what he was signing when he waived his rights under Miranda (p. 51).
We affirm the finding of the special inquiry officer that the
facts of record establish that the respondent was lawfully interrogated and arrested by the immigration authorities and that he
has, in fact, violated his status as a student in the United States
by accepting full-time employment. We conclude that the deportability of the respondent has been established by clear, convincing
and unequivocal evidence.
We affirm the grant of voluntary departure in lieu of deportation and will dismiss the appeal. Since the execution of the order
has been stayed during the pendency of this appeal, we will pro- •
vide for the voluntary departure of the respondent within 30
days from the date of this decision.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
It is further ordered that, pursuant to the special inquiry officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that date as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the order
entered by the special inquiry officer.
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