Interim Decision #2157
MATTER OF LAM
In Deportation Proceedings
A-17563885
Decided by Board July 5, 1972
(1) A special inquiry officer does not cease to be impartial in a deportation
proceeding merely because in his quest for the truth he seeks to clarify the
record by calling the attention of the trial attorney to certain areas of inquiry
not yet developed. [Cf. Matter of Martinez Solis, Interim Decision No. 2135.]
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(2) Since 8 CFR 242.17(d) provides that an application for voluntary departure
made during the deportation hearing "shall not be held to constitute a
concession of alienage or deportability in any case in which the respondent
does not admit his alienage or depor'cability,". a special inquiry officer, in such
case, may properly consider the issue of voluntary departure prior to ruling on
the issue of deportability, and may properly deny voluntary departure where
the respondent refuses to testify in support of his application.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 1251(a)(2)]—Nonimmigrant
crewman—remained longer.
ON BEHALF OF RESPONDENT: Bruce W. Okney, Esquire
2001 Midwest Plaza Bldg.
Minneapolis, Minnesota 55402
(Brief filed)
The respondent, a native of mainland China, male, unmarried,
28 years of age, appeals from the special inquiry officer's order
finding him deportable as charged and directing his deportation to
Hong Kong. The appeal will be dismissed.
The respondent refused to identify himself as the alien upon
whom the order to show cause was served on January 13, 1971. He
also refused to testify as to his right to be in the United States.
Counsel for the respondent claimed privilege under the Fifth
Amendment to the Constitution on the ground that the respondent's answers may tend to incriminate him (pp. 1-4). He instructed
the respondent not to answer any questions. The respondent
himself did not claim the privilege against self-incrimination.
The order to show cause charges that the respondent is a native
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Interim Decision #2157
and citizen of China who was admitted to the United States as a
nonimmigrant crewman at Charleston, South Carolina on or about
January 5, 1968 and was authorized to remain for the period of
time his ship was in port, not to exceed 29 days. It is alleged that
the respondent's ship departed on January 11, 1968 and that the
respondent remained in the United States in violation of section
241(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
1251(a)(2).
The evidence presented by the Government on the issue of
deportability is fully discussed in the opinion of the special inquiry
officer. Briefly, it consists of the testimony of the apprehending
immigration officer who identified the respondent as the person on
whom he served the warrant of arrest entered as Exhibit 2 (p. 7).
This witness also identified the respondent as the person who
made the statement attached to Form 1-213, dated January 13,
1971 and entered in evidence as Group Exhibit 3. The witness
testified that the respondent was advised of his constitutional
rights to remain silent, to be represented by counsel and the fact
that any statement made by him could be used against him (p. 9
and Form 1-214, Group Exh. 3). The witness also testified that the
respondent elected to sign the waiver indicating his willingness to
make a statement without an attorney present and that he fully
understood what he was doing (pp. 9 and 10, Exh. 3).
The Government relies on documentary evidence to establish
alienage, the place and time of entry and the fact that the
respondent was admitted as a nonimmigrant crewman and remained longer than permitted (Exhs. 4, 5, 6 and 7). The apprehending officer identified a "crewman's landing permit" (Form I-95A),
issued in the respondent's name as a document voluntarily surrendered to him by the respondent (p. 20 and Exh. 4). Also admitted in
evidence is a "seaman's identity book," issued in the name of the
respondent at Hong Kong on August 3, 1963, and a "seaman's
discharge book," No. 60977, issued at Hong Kong on May 26, 1965
(Exhs. 5 and 7, pp. 29 and 34). The special inquiry officer stated for
the record that Exhibits 5 and 7 contain photographs which
appear to be an excellent likeness of the respondent (pp. 29 and
34).
Exhibit 6 is a report of investigation which relates to a crewman
by the same name as the respondent, who was reported as a
deserting crewman at the port of New York on January 11, 1968.
The report states that this crewman last arrived in the United
States at the port of Charleston, South Carolina aboard the M/V
"Tvera" on January 5, 1968 and was inspected and admitted as a
"D -1" crewman. All of the exhibits were received in evidence over
the objections of counsel.
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The special inquiry officer finds that the proof presented by the
Government fully supports the allegations set forth in the order to
show cause and that the respondent's deportability is established
by evidence which is clear, unequivocal and convincing (p. 2,
special inquiry officer's opinion). Counsel in his excellent brief on
appeal asserts that the decision of the special inquiry officer must
be reversed for failure of the Government to establish deportability by competent evidence (p. 16, counsel's brief).
Counsel contends that the respondent did not receive a fair
hearing in accordance with the due process clause of the Fifth
Amendment because, "The Special Inquiry Officer was so predisposed and sympathetic to the case of the government that any
opportunity for the respondent to receive a fair hearing was
nullified" (p. 2, counsel's brief). Counsel alleges that during the
course of the hearing, the special inquiry officer showed bias by
assuming the functions of the trial attorney in laying the foundation for the introduction of certain documentary evidence (pp. 6-
12, 28), by cross-examining the Government witness to bolster the
Government's case (pp. 18, 22-23, 24) and by stating for the record
at the outset of the hearing that, "in order for the respondent to
prevail ... he had the burden of proof of demonstrating that he
was not deportable" (p. 3, counsel's brief).
We find no merit to counsel's contention that the respondent
was denied a fair hearing by reason of the asserted bias and
predisposition of the special inquiry officer. A contested deportation
is in essence a quest for the truth. We recognize that there are
limits within which a hearing officer in an administrative proceeding should act in his quest for the truth. These limitations were
aptly stated in Tele-Trip Company v. N.L.R.B., 340 F.2d 575 (C.A. 4,
1965) as follows:
... Certainly a trial examiner is free to and should interrupt witnesses on
occasions when necessary to a clarification of the testimony. But he must be
impartial and must not attempt to establish proof to support the position of any
party to the controversy; once he does so he becomes an advocate or a
participant, thus ceasing to function as an impartial trier of fact, and a hearing
so conducted is lacking in the fundamental fairness required by due process....
A special inquiry officer does not cease to be impartial merely
because, in his quest for the truth, he seeks to clarify the record by
calling the attention of the trial attorney to certain areas of
inquiry not yet developed. Cf. Matter of Martinez-Solis, Interim
Decision No. 2135 (BIA, 1972). We have carefully reviewed the
record in light of the assignments of error referred to by counsel in
his brief. We find nothing in the record which supports counsel's
contention that the hearing accorded the respondent is lacking in
the fundamental fairness required by due process because the
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special inquiry officer failed to function as an impartial trier of
fact.
We next turn to counsel's contention that the special inquiry
officer "demonstrated his partiality toward the government" by
improperly informing the respondent that "in order ... to prevail
at the hearing he had the burden of proof of demonstrating that
he was not deportable" (p. 3, counsel's brief), Counsel refers to the
occasion at the outset of the hearing (p. 5) when the special inquiry
officer addressed the alleged respondent, as yet unidentified, as
follows:
... I wish to tell you that the order to show cause states that you are to have a
hearing in deportation proceedings. The purpose of the hearing is to show me, if
you can, why you should not be deported on the charges contained in the order
to show cause ... Do you understand? (Emphasis supplied.)
The respondent replied, "I do not understand all the allegations.
My attorney will answer for me" (p. 5). The special inquiry officer
then addressed counsel and informed him of the respondent's
rights as set forth in 8 CFR 242.16(a).
We find nothing prejudicial or improper in the special inquiry
officer's statement quoted above. His statement refers specifically
to the order contained in the order to show cause requiring an
alien to appear for a hearing. This order reads in part as follows:
WHEREFORE, YOU ARE ORDERED to appear for hearing before a Special
Inquiry Officer of the Immigration and Naturalization Service ... and show
cause why you should not be deported from the United States on the charge(s) set
forth above. (Emphasis supplied.)
The order contained in the order to show cause, supra, does not
state that the alien upon whom it is served has the burden of
proving deportability. Counsel merely seeks to confuse the issue by
equating the special inquiry officer's use of the term "purpose of
the hearing" with the well-established principle that the "burden"
is upon the Government "to prove deportability" in a deportation
proceeding. This burden, as counsel well knows, cannot be fulfilled
by a mere accusation in the order to show cause. It can be satisfied
only by evidence produced at the hearing which is clear, unequivocal and convincing, unless the alien admits the charge or charges.
Furthermore, the respondent clearly stated in his reply to the
special inquiry officer, "I do not understand the allegations,"
referring to the order to show cause, and informed the special
inquiry officer that "[his] attorney will answer for me." Under the
circumstances, we find no merit to counsel's contention that the
manner in which the special inquiry officer conducted the hearing
constitutes a sufficient basis for reversal because the respondent
was deprived of due process of law (p. 5, counsel's brief).
Counsel contends that the Government failed to sustain its
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burden of proof on the issue of deportability. Counsel's contention
is directed to the admissibility and competence of the documentary
evidence submitted by the Government and admitted by the
special inquiry officer over his objections. Counsel argues that the
evidence relied upon by the special inquiry officer was not obtained pursuant to the constitutional guarantees set forth in the
Fourth, Fifth and Sixth Amendments to the Constitution and for
this reason was not properly admissible at the deportation hearing
because of the possible criminal jeopardy that could attach to the
respondent under section 252(c) of the Immigration and Nationality Act, 8 U.S.C. 1282(c). Counsel maintains that the Governn;ent
could not have established its case against the respondent without
the documentary evidence and, accordingly, the admission of this
evidence was clearly prejudicial (pp. 5-16, counsel's brief).
A deportation hearing is an administrative proceeding, civil in
nature. Due process in such a proceeding ordinarily does not
require adherence to judicial rules of evidence unless deviation
would make the proceeding manifestly unfair. The sole criterion in
appraising documentary evidence lawfully obtained is whether it
has probative value and whether its use is consistent with a fair
hearing, U.S. ex rel. Vajtauer v. Commissioner of Immigration, 273
U.S. 103,
71 L. Ed. 560 (1927); Morgano v. Pilliod,
299 F.2d 217 (7
Cir., 1962), cert. denied
370 U.S. 924.
Counsel seeks to suppress evidence which he alleges was unlawfully obtained. We find no evidence, after a careful review of the
record, that the documentary evidence supporting deportability
was unlawfully obtained. It relates to the respondent's entry as a
crewman and has probative value. The weight of authority supports our conclusion, Marlowe v. INS,
457 F.2d 1314 (C.A. 9, 1972)
and cases cited; Yam Suing Kwai v. INS,
411 F.2d 683 (D.C. Cir.,
1969), cert. denied
396 U.S. 877; Navarrette-Navarrette v. Landon,
223 F.2d 234, 237 (C.A. 9, 1955), cert. denied
351 U.S. 911; Matter of
Chen,
12 I. & N. Dec. 603 (BIA, 1968); Matter of Wong, Interim
Decision No. 2111 (BIA, 1971); Matter of Tang, Interim Decision
No. 2080 (BIA, 1971); Matter of Doo, Interim Decision No. 1911
(BIA, 1968).
The respondent, through counsel, applied for the privilege of
voluntary departure in lieu of deportation (p. 37). Counsel stated
for the record that the respondent would not testify in support of
his application for voluntary departure, because if he did, he would
have to identify himself, which would place in jeopardy and defeat
his initial defense on the issue of deportability, i.e., his defense
that the Government has not adequately identified the reSnondent
for the purpose of finding him deportable as charged. Counsel
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requested the special inquiry officer to rule on the issue of
deportability prior to the consideration of the issue of voluntary
departure (p. 36).
The special inquiry officer denied counsel's request. He made no
finding as to the respondent's eligibility for the privilege of
voluntary departure inasmuch as the respondent refused to answer any questions on that issue or on the issue of deportability.
The special inquiry officer concluded that for this reason counsel's
application for voluntary departure did not merit a favorable
exercise of discretion (p. 6, special inquiry officer's opinion).
The regulations provide that an application for voluntary departure "shall be made only during the hearing [before a special
inquiry officer] and shall not be held to constitute a concession of
alienage or deportability in any case in which the respondent does
not admit his alienage or deportability," 8 CFR 242.1'7(d). The
regulations also provide that an applicant for the privilege of
voluntary departure "shall have the burden of establishing that
he is eligible for any requested benefit or privilege and that it
should be granted in the exercise of discretion" (ibid). An applicant
for the privilege of voluntary departure has the burden of satisfying the Attorney General, or his duly authorized delegate,"that he
is, and has been, a person of good moral character for at least five
years preceding his i application for voluntary departure" and that
"he is willing and has the immediate means with which to depart
promptly from the United States," section 244(e), Immigration and
Nationality Act and 8 CFR 244.1.
The Supreme Court has said that "an applicant for suspension
[of deportation], matter of discretion and of administrative
grace'...must, upon the request of the Attorney General, supply
such information that is within his knowledge and has a direct
bearing on his eligibility under the statute. The Attorney General
may, of course, exercise his authority of grace through duly
delegated agents...." The Supreme Court did not pass upon the
issue of whether a petitioner for suspension of deportation is
"justified in his personal refusal to answer." It said, however, that
"this did not relieve him under the statute of the burden of
establishing the authority of the Attorney General to exercise his
discretion in the first place," Kimm v. Rosenberg, 363 U.S. 405, 408
(1960).
We believe that under the circumstances of this case, the special
inquiry officer was justified in denying counsel's request to rule on
the issue of deportability prior to considering the respondent's
application for voluntary departure. 8 CFR 242.22 provides in
substance that a motion to reopen will not be granted if the alien
was afforded an oPportunity to apply for discretionary relief at the
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hearing, unless circumstances have arisen thereafter on the basis
of which the request is being made. The petitioner in the case of
Williams v. Sahli, 292 F.2d 249, 250, 251 (CA. 6, 1961), cert. denied
368 U.S. 977, argued that the regulations governing an application
for suspension of deportation violated due process because the
procedure required him to submit an application for relief before
his alienage and deportability were determined. The court held
that there was no merit to the petitioner's claim. It is our opinion,
in light of the authority cited above, that there is no merit to
counsel's claim that the respondent's initial defense on the issue of
deportability would be defeated if he testified on the issue of his
eligibility for voluntary departure. 8 CFR 242.17(d) specifically
provides that an application for discretionary relief "shall not be
held to constitute a concession of alienage or deportability" under
the circumstances of this case.
In our view, the special inquiry officer should not have based his
denial of the respondent's application for voluntary departure in
the exercise of discretion on the fact that the respondent refused
"to answer any questions ... on the issue of deportability" (p. 6,
special inquiry officer's opinion). Reversal is not necessary, however, because there is an alternate basic for denial which in -our
view requires dismissal of the appeal. The respondent failed to
establish his eligibility for voluntary departure as required by the
statute and the regulations, Kimm v.
Rosenberg, supra.
Our consideration of the record before us fully recognizes the
respondent's right to the privileges afforded by the Fourth, Fifth
and Sixth Amendments to the Constitution. We conclude that on
this record, the respondent's deportability has been established by
clear, unequivocal and convincing evidence that the facts alleged
in the order to show cause as grounds for deportation are true,
Woodby v. INS,
885 U.S. 276, 286 (1966). The documentary evidence
relates to the respondent, has probative value and is admissible.
CL Pang v. INS,
368 F.2d 637 (3 Cir., 1966), cert. denied
368 U.S.
1037 (1967). He has been accorded a fair hearing. An appropriate
order will be entered.
ORDER: The appeal is dismissed.
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