Interim Decision #2187
MATTER OF TSANG
In Deportation. Proceedings
A-15999353
Decided by Board February 16, 1973
(1) Where an alien presented no evidence in support of his motion to suppress on
the claim that he had been illegally arrested and that the documents entered
into evidence to establish his deportability were obtained as a result of the
illegal arrest, his motion was properly denied by the special inquiry officer for
lack of justification since on a motion to suppress he has the burden of
establishing prima facie that the evidence was unlawfully obtained.
(2) An alien's refusal to testify regarding his deportability on a claim of self-incrimination is not a factor which should weigh against the exercise of
discretion (voluntary departure, in the instant ease) in his favor. However,
merely because relief may not be denied in the exercise of discretion on the
basis of a self-incrimination claim does not mean that it may not be denied in
the exercise of discretion on some other basis.
CHARGE:
Order: Act of 1952—Section 241(aX2) [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
Roston, Massachusetts 02109
Attorney of Record:
Joseph F. O'Neil, Esquire
The respondent appeals from an order of deportation entered by
the special inquiry officer. The appeal will be dismissed.
The record relates to a male alien of Chinese nationality, 45
years of age. He entered the United States as a nonimmigrant
crewman on September 23, 1968 and deserted his ship at Norfolk,
Virginia on or about October 10, 1968.
Respondent refused to testify regarding his deportability at the
deportation hearing, invoking the privilege against self-incrimination in the Fifth Amendment to the Constitution. He did testify on
behalf of his application for voluntary departure.
As evidence of deportability, his seaman's discharge book was
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read into evidence as was his Hong Kong seaman's identity book.
Both show his place of birth as China. Also admitted into evidence
was a certified copy of the arrival-departure record of the crew of
the M/V "Ocean Splendour" which shows respondent's arrival with
and desertion from that ship.
The respondent moved to suppress the introduction of these
documents as eviaence on the ground that he had been illegally
arrested and that the documents were obtained as a result of the
illegal arrest. The respondent submitted no evidence tending to
establish that his arrest was illegal or that any evidence was
unlawfully obtained from him.
On a motion to suppress the defendant has the burden of establishing that the
evidence was unlawfully obtained, United States v. Lyon, 397 F.2d 505 (CA. 7,
1968).
See also Nardone v. United States,
308 U.S. 338 (1939); United
States v. Garcia;
272 F. Supp. 286 (S.D.N.Y., 1967). This rule, which
is applied in criminal cases, has been adopted for use in deportation hearings, Matter of Tang, 13 I. & N. Dec 691 (B IA, 1971).
Therefore,the special inquiry officer correctly denied the respondent's motion to suppress on the ground that the respondent had
presented no justification for his motion.
Furthermore, there is no showing here that any of the documents introduced was obtained either directly or indirectly as a
result of the respondent's arrest. Those particular documents
would normally be independently in the possession of the Immigration, Service. Seaman's books are retained by the carrier and
sent to the Immigration Service upon the desertion of a seaman to
whom they relate. Arrival and departure lists are official records
given to the Immigration and Naturalization Service in the
ordinary course of business by carriers. Thus, competent evidence
which was in possession of the Service, independently of respondent's apprehension, establishes that Hon Kwan Tsang, a Chinese
national, was admitted to the United States as a crewman and
deserted. The documents introduced constitute clear, convincing
and unequivocal evidence of deportability. We do not draw any
inference from respondent's silence.
The special inquiry officer denied voluntary departure as a
matter of discretion because respondent, by asserting the privilege
against self-incrimination and consequently refusing to testify in
regard to deportability, had put the Immigration and Naturalization Service to additional time, trouble and expense in securing
evidence of deportability. The cases have held, however, that
adverse action may not be based on silence under a self-incrimination claim; otherwise the prospect of adverse action would cut
down on the privilege by making its assertion costly, Spevack v.
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385 U.S. 511 (1967), Griffin v. Calif,
380 U.S. 609 (1965).
Furthermore, the regulations by implication recognize that an
alien who refuses to testify on issues involving deportability may
nevertheless be granted voluntary departure, 8 CFR 242.17(d).
Thus, an alien has the right to refuse to testify with regard to the
matter of his deportability without thereby forfeiting his opportunity to receive voluntary departure.
Of course, merely because relief may not be denied in the
exercise of discretion on the basis of a self-incrimination claim does
not mean that it may not be denied in the exercise of discretion on
some other basis. The alien has the burden to establish eligibility
for voluntary departure, both that he is statutorily eligible and
that he merits the favorable exercise of discretion. The statutory
requirement is five years of good moral character, section 244(e).
The regulations specify the requirement that the alien establish
that he is willing, and has the immediate means with which, to
depart promptly, 8 CFR 244.1.
Whether discretion should be exercised in favor of a particular
alien depends upon the facts of the individual case. In Order to
achieve a measure of uniformity in cases involving applications for
voluntary departure by crewmen, this Board has previously set
forth certain guide lines, Matter of M ,
4 I. & N. Dec. 626 (BIA,
—
1952). Inquiry should be made whether the alien was a bona fide
crewman at the time of entry as against one who intended to stay
permanently and used the crewman status merely as a means to
effect entry. Because it is difficult to determine whether a particular alien- was a bona fide crewman or not, we held that a
respondent should usually have been a crewman for at least one
year before being granted voluntary departure, Matter of M , —
supra. If it is clear that at the time of entry a respondent intended
to stay permanently in the United States, normally voluntary
departure should be denied as a matter of discretion, with an
exception in the case of an alien who has served as a crewman for
many years. If an alien crewman has been previously granted
voluntary departure, whether he departed pursuant thereto or
failed to avail himself of the privilege, we have held that such is an
adverse factor militating against another grant of voluntary
departure.
We wish to emphasize that while these guide lines should be
considered they do not set forth an invariable rule, Matter of T , 5
—
I. & N. Dec. 736 (B IA, 1954), and they do not relieve the special
inquiry officer from his duty of exercising the discretion which is
entrusted to him. He should consider all the relevant factors
present in the ease before him and base his decision thereon
accordingly.
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This record establishes that at the time of entry to the United
States, respondent had been a crewman for about eleven years
(Tr. of hearing, p. 5). Eleven years is a substantial length of time.
The respondent has never previously violated our immigration
laws. This is his first request for voluntary departure. He has the
ability to depart at his own expense and will depart within the
time allotted, according to his testimony. We find that respondent
merits voluntary departure. We do not consider his refusal to
testify regarding his deportability as a factor which should weigh
against the exercise of discretion in his favor.
ORDER: The respondent is granted voluntary departure from
the United States without expense to the Government, to any
country of his choice, within such period of time, in any event not
less than 30 days, and under such conditions as the officer-incharge of the District deems appropriate.
FURTHER ORDER:If the respondent does not depart from the
United States in accordance with the foregoing, he shall be
deported to Hong Kong on the charge contained in the order to
show cause.
FURTHER ORDER:If the aforenamed country declines to accept the respondent into its territory or fails to advise the Attorney General within three months following original inquiry
whether it will or will not accept the respondent into its territory,
the respondent shall be deported to the Republic of China on
Formosa.
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