Interim Decision #2064
MATTER OF LANE
In Deportation Proceedings
A-19698248
Decided by Board November 24, 1970
Admissions made by an alien to a Service officer in a preliminary interrogation at a Travelers Aid Society office, in a non-custodial setting, were not
tainted by the absence of a warning of the type used in Miranda v. Arizona, 384 U.S. 436 (1966), and constitute competent evidence to support
an order of deportation.
:BARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2)]—Visitorremained longer.
, N BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
David Carliner, Esquire Irving A. Appleman
425 - 13th Street, N.W. Appellate Trial Attorney
Room 932 (Brief filed)
Washington, D.C. 20004
(Brief filed)
Respondent appeals from the special inquiry officer's order reiring her deportation. Counsel contends that the special inquiry
leer's reliance upon respondent's admissions to Service officers
fore the deportation hearing was improper because they were
Kle without respondent having been advised of her right to
insel and her right to refuse to answer questions. The appeal
I be dismissed.
['he facts have been fully stated by the special inquiry officer.
e following summary is taken from testimony of Service witses, Mr. Morelli and Mr. Fell; respondent refused to testify on
laim of privilege. On March 12, 1970, Mrs. Ziegler, an emyee of the Travelers Aid Society, Richmond, Virginia, called
Titcomb of the Immigration Service and informed him that a
titute female of Irish nationality was in her office seeking asance. Mr, Titcomb advised Mr. Morelli, a Service investigator,
he fact. At about 2 p.m. of the same day, Mr. Morelli accom-
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Interim Decision #2064
panied by Mr. Fell, another Service official, went to the Society's
office, a short distance away. The officers identified themselves to
the respondent. Since she was not considered to be in custody, she
was not, prior to questioning, given the warning concerning the
right to representation and to remain silent, which is given to a
witness who is in custody. Mr. Morelli questioned her and found
out she was an alien who had been admitted from Canada on
June 8, 1966, as a temporary visitor for three weeks, and that she
was unlawfully in the United States since she had remained
longer than she had permission to remain. Mr. Morelli had the
authority to permit respondent to leave the United States without
the institution of deportation proceedings. He told respondent
that she would be permitted to leave voluntarily if she could arrange for transportation to Canada; if she could not, he would
take her into custody and commence deportation proceedings.
Mrs. Ziegler offered to determine whether her organization would
provide transportation. This would take time. Mr. Morelli, therefore, suggested that respondent accompany him to the Service
office to await the outcome of Mrs. Ziegler's efforts. Respondent,
Mr. Morelli, and Mr. Fell walked to the Service office. At about
3:15 p.m., Mrs. Ziegler called with the information that her organization could not pay for transportation. Mr. Morelli then advised the respondent she was under arrest. He gave her a warning about her rights. He took a statement from her in which she
admitted alienage and the manner of her entry. He had not considered respondent under arrest until he told her she was under arrest; however, had she attempted to leave the Immigration office
before being placed under arrest, he would have attempted to restrain her.
At the deportation hearing, counsel asked that Mrs. Ziegler and
Mr. Titcomb be called as witnesses. He hoped to establish that before Mrs. Ziegler called the Service, she had such custody over respondent that respondent was actually under arrest when the
Service officers arrived. Mr. Morelli testified that there had been
no arrangement with Mrs. Ziegler for the detention of aliens illegally in the United_c3tates. Counsel's request was denied.
After oral argument on the appeal, counsel submitted a letter
stating that Mrs. Ziegler and other employees of the Travelers
Aid Society were willing to give depositions concerning the matter if proceedings were reopened. There is no indication as to the
nature of the testimony. Counsel asks that the proceedings be reopened for the taking of such testimony. The record also contains
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Interim Decision #2064
the Service memorandum in opposition to the request and counsel's reply.
The record establishes that respondent is deportable. The statements made at the Society's office as to alienage and the nature of
her entry establish this. The interrogation there did not have to
be preceded by a warning of the type used in Miranda v. Arizona,
384 U.S. 436 (1966). Such warning is required in a custodial setting or when the person questioned is the subject of a criminal investigation. Neither of these situations existed here. There was
merely an on-the-scene interrogation, reasonable in nature, relatively short in duration, and there was an absence of a reasonable
possibility that there would be a criminal prosecution.
The absence of a custodial setting before the Service officers
came is clear. Respondent was never in Mrs. Ziegler's custody.
The record establishes that Mrs. Ziegler did not detain respondent prior to the arrival of the Service officers. Moreover, since
Mrs. Ziegler is a private citizen, a custodial setting requiring a
Miranda warning would not have existed even if she had attempted to detain respondent, Yates v. United States, 384 F.2d
586, 588 (5 Cir., 1967). The absence of a custodial setting, after
the Service officers came and when they first questioned respondent, is clear. Respondent did not testify that she had remained
for the questioning at the office of the Society because of the assertion of custody by the Service. Mr. Morelli testified that respondent was not arrested at the Travelers Aid office. The Service
officers did not go to Mrs. Ziegler's office to arrest respondent.
They knew only that a destitute alien was there. They did not
know she was illegally in the United States. Even if they found
her to be illegally in the United States, they were not required to
take her into custody. They could have authorized her to depart
without taking her into custody, 8 CFR 242.5. They went to determine the facts. Thus, the absence of a Miranda warning did
not taint the admissions made at the Society's office, Yam Sang
Kwai v. INS,
411 F.2d 683 (D.C. Cir., 1969), cert. denied
396
U.S. 877; United States v. Cho-Po-Sun,
409 F.2d 489 (2 Cir.,
1969), cert. denied
396 U.S. 864; Nason v. INS,
370 F.2d 865 (2
Cir., 1967); Amaya v. United States,
247 F.2d 947 (9 Cir., 1957),
cert. denied
355 U.S. 916; United States v. Montez-Hernandez,
291 F. Supp. 712 (Cal., 1968); United States v. Mendoza-Torres,
285 F. Supp. 629 (Ariz., 1968) ; Tsimounis v. Holland,
132 F.
Supp. 754 (E.D. Fa.. 1955), affirmed
228 F. 2d 907 (3 Cir.,
1956); Matter of Methure, Interim Decision No. 2035 (BIA,
1970); Matter of Au, Interim Decision No. 1981 (BIA, 1969). See
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Interim Decision 32064
United States v. Prudden, 424 F.2d 1021, 1028 (5 Cir., 1970);
Bendelow v. United States,
418 F.2d 42 (5 Cir., 1969); Lucas v.
United States,
408 F.2d 835 (9 Cir., 1969).
Counsel cites United States v. Dickerson,
413 F.2d 1111 (7 Cir.,
1969) , holding that Miranda warnings must be given to a taxpayer when a federal tax investigation moves from a civil into a
criminal one. Dickerson turns on the distinction between a civil
and a criminal investigation. The Service interrogation at the Society's office was for the purpose of determining whether the respondent was an alien and, if so, whether she had the right to remain in the United States. This is a civil matter. There is no
showing that it ever went beyond this stage. Furthermore, Dickerson expresses a minority rule, United States v. Brevik,
422
F.2d 449, 450 (8 Cir., 1970), cert. denied
397 U.S. 1056.
The admissions made by the respondent at the Service office
after she had been taken into custody were preceded by a Miranda warning. These admissions were also competent evidence to
support the order of deportation. Therefore, even assuming some
infirmity in petitioner's questioning at the Travelers Aid office,
the deportation order would not be set aside, Shing Hang Tsui v.
INS,
389 F.2d 994, 995 (7 Cir., 1968).
The special inquiry officer properly denied the issuance of subpoenas for Mrs. Ziegler and Mr. Titcomb. Counsel had failed to
establish what he would prove by the testimony of these witnesses. He had not shown that they were not available. The finding of deportation does not rest upon the testimony of these individuals. Furthermore, whether or not respondent had been
detained before the Service officers arrived was not material.
Counsel's request on appeal that the case be remanded for the
taking of depositions from employees of the Travelers Aid Society is denied. Counsel does not establish this evidence is material. In fact, he fails to show what he would prove by this testimony, 8 CFR 287.4.
ORDER: The appeal is dismissed.
635
