Interim Decision #2080
MATTER OF TANG
In Deportation Proceedings
A-15363812
Decided by Board April 22,1971
Where respondent presented no competent legal evidence in support of his
claim that the documents entered into evidence to establish his deportability were obtained in violation of his constitutional rights, such contention
is dismissed since one who raises the claim must come forward with proof
establishing a prima facie case of illegality before the Service will be
called upon to assume the burden of justifying the manner in which it obtained its evidence.
CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2) 1—Nonimmigrant crewman—remained longer.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Peter Zimmerman, Esquire Irving A. Appleman
100 State Street Appellate Trial Attorney
Boston, Massachusetts 02109
Counsel of record:
Joseph F. O'Neil, Esquire
Respondent appeals from the special inquiry officer's order finding him deportable and granting him voluntary departure. The
appeal will be dismissed.
Respondent admitted that he is an alien, but he refused to testify as to his right to be in the United States. He did not claim
privilege. The special inquiry officer found that respondent was
an alien, that he had been admitted in June 1969 as a nonimmigrant crewman, that he had been authorized to remain for not
longer than 29 days and that he had remained without authority.
These findings are based on the admission of alienage respondent
made at the deportation hearing and on information found in the
respondent's seaman's identity book, his seaman's discharge book,
his identity card and the landing permit showing his arrival on
June 26, 1969 at Los Angeles. The contents of the first three doe-
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Interim Decision #2080
uments were read into the record (pp. 4, 5). The last document is
an exhibit (Ex. 2) . These documents were entered in evidence
over the objection of counsel who stated, "They were allegedly
taken from the respondent in violation of his constitutional
rights" (p. 4). No specifications in support of the claim have been
given. Counsel contends that since he raised a question as to the
legality of the evidence, the burden is upon the Service to come
forward with proof establishing that the documents came into its
possession in a manner which did not offend respondent's constitutional rights.
We shall dismiss the contention because respondent has not established a prima facie case in support of the contention. He has
presented no competent legal evidence in support of his claim.
One who raises the claim must come forward with proof establishing a prima facie case before the Service will be called upon
to assume the burden of justifying the manner in which it obtained its evidence. See Nardone v. United States, 308 U.S. 338
(1939); Duran v. United States,
413 F.2d 596, 604 (9 Cir., 1969),
cert. denied
396 U.S. 917 (1969); United States v. Lyon,
397 F.2d
505 (7 Cir., 1968), cert. denied
393 U.S. 846 (1968); United
States v. Garcia,
272 F. Supp. 286 (S.D. N.Y., 1967); Fed. Rules
Cr. Proc., rule 41(e), 18 U.S.C. The reason for our rule one similar to that which prevails in criminal matters—is well stated in
Garcia, supra. There the court said:
. . . Experience shows that unless such serious charges are initiated upon
he sworn statement of persons having personal knowledge of the facts, a
Teat deal of time of the parties and the Court is frequently wasted upon
Lnnecessary, expensive and protracted suppression hearings, all for the reaon that the attorney demanding suppression merely upon his own say-so
ften discovers only at the hearing that he has been misled by unsworn repsentations of his clients, which they would be unwilling to swear to in an
ffidavit, particularly if they were questioned closely by their counsel and
arned of the consequences of perjury.
It is proper to consider the documents presented by the Serve. The respondent does not deny that they relate to him. Their
mtents reveal that they do in fact relate to him. They establish
iat respondent is an alien who was admitted for a period not
nger than 29 days, 8 . CFR 252.1(d), (e), (f). There is no claim
J respondent that he has a legal right to be in the United States.
Upon presenting evidence that the respondent is an alien, the
?rvice may call upon him to testify and may use his testimony
find that deportability is established, Laqui v. INS, 422 F.2d
)7 (7 Cir., 1970). Where the respondent does not claim privilege
id refuses to testify, his silence can give rise to an inference
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Interim Decision #2080
that his testimony would support the Service charges, Quilodran-Brau v. Holland, 232 F.2d 183 (3 Cir., 1956) . Here, it is proper
to find that the respondent is an alien, that he was admitted temporarily, and that the period for which he was admitted has now
expired. On the basis of these findings it is proper to conclude
that respondent is in the United States illegally as charged.
The Service burden of establishing deportability could also
have been met by drawing on the statutory presumption of the illegality of the presence of the alien who has not justified his
presence in the United States, Ah Chiu Pang v. INS,
368 F.2d
637 (3 Cir., 1966), cert. denied
386 U.S. 1037; Vlisidis v. Holland,
245 F.2d 812 (3 Cir., 1957) ; section 291 of the Act, 8 U.S.C.
1361. We have not relied upon this presumption because it is unnecessary to do so. However, had it been necessary to do so, we
think the presumption would have supported the charge. We believe that it does not merely require an alien to show that he entered lawfully; it goes further. It requires the person shown to be
an alien to justify his presence in the United States. Our rule is
drawn from Vlisidis v. Holland, supra. The case concerned aliens who were charged with having entered temporarily as alien
crewmen and remaining illegally. They refused to answer questions about the circumstances of their presence in the United
States. The court, after holding that there was adequate evidence
for finding the aliens deportable, stated:
. . . Actually, it was necessary to show only the single fact that the respondent was an alien, for, once that is proved, the legislative scheme requires the alien to justify his presence in the United States.
66 Stat. 234,
8
U.S.C.A. §1361. Neither of the parties here attempted any such showing of
lawful presence (p. 814).
Respondent did not attempt to show a lawful presence here. In
fact, he has failed to show the time, manner and place of his
entry. We believe the presumption could have been relied upon.
We find no support in this record for counsel's contention that
respondent's request for representation was effectively denied.
ORDER: The appeal is dismissed.
Further ordered: Pursuant to the special inquiry officer's
order, the respondent is permitted to depart from the United
States voluntarily within 30 days from the date of this decision
or any extension beyond that time as may be granted by the District Director ; in the event of failure so to depart, the respondent
shall be deported as provided in the special inquiry officer's
order.
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