Interim Decision #2193
MATTER OF SCAVO
In Deportation Proceedings
A-14809313
Decided by Board April 10, 1973
Respondent, encountered by service officers in May 1972, turned over his
driver's license in response to a request for identification and thereafter fled.
Following apprehension in November 1972, in a sworn statement made in the
presence of his attorney and after a Miranda warning, he admitted entry as a
stowaway. At the deportation hearing he stood mute. Held: There was nothing
illegal about the May 1972 questioning; a Miranda warning was not required
since respondent was not then in custody; and the driver's license obtained at
the time of the May questioning is admissible in evidence. In any event,
irrespective of the legality of the May questioning, respondent's November
statement, made after a full warning as to his rights, constitutes independent,
untainted, clear, convincing, and unequivocal evidence of deportability.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Stowaway—entered
without inspection.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Joseph A. Gatto, Esquire Irving A. Appleman
3280 Penobscot Building Appellate Trial Attorney
Detroit, Michigan 48226
(Brief filed)
This is an appeal from an order of deportation entered by the
special inquiry officer on December 4, 1972. We shall dismiss the
appeal.
The respondent is a 39-year-old married male alien, a native and
citizen of Italy. He is charged with entering the United States as a
stowaway in 1966. An order to show cause in deportation proceedings was issued February 24, 1970 but could not then be served
because the respondent could not be located. He was encountered
by Service officers on May 31, 1972, at which time he turned over
his driver's license (Exh. 4) in response to a request for identification. He then ran away. The respondent was not apprehended
until November 9, 1972 at which time the order to show cause was
served upon him. On November 10, 1972, in the presence of his
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Interim Decision #2193
attorney, he made a sworn statement to Service officers admitting
that he had entered the United States as a stowaway. At a
deportation hearing conducted on November 28, 1972, the respondent stood mute. The November 10 statement was introduced and a
finding of deportability was based thereon.
The respondent appeals on the ground that his motion to
suppress the use of all the evidence introduced, including the
November 10 statement, was improperly denied. The motion to
suppress was based on the theory that the Service investigators
should have advised the respondent of his constitutional rights, as
set forth in Miranda v. Arizona, 384 U.S. 436 (1966), prior to
questioning him in May 1972 as to his identity. Because of the lack
of warnings, counsel characterizes the May questioning as an
illegal arrest and illegal search and seizure, and the entire deportation proceeding, including all the evidence introduced, as fruit of
the poisoned tree.
The respondent's theory lacks merit for several reasons, the
most obvious of which is that there was no connection between the
May 1972 questioning and the November 1972 statement, inasmuch as the respondent ran away from the Service investigators
in May 1972 and was not found again until November 1972. The
November statement was given in the presence of counsel, following warnings regarding the right to remain silent and the potential use against the respondent of any statement_ The statement
given in November, therefore, was in no way related to, or tainted
by, the May questioning.
Secondly, counsel's attack on the deportation proceeding itsellaS
illegal fruit of the poisoned tree is without merit. Evidence tainted
by an illegal arrest or search and seizure may be suppressed but
untainted evidence may be received.
Even if the arrest were illegal, the mere fact that the authorities got the
"body" of Huerta-Cabrera illegally does not make the proceeding prosecuting
him or deporting him the fruit of the poisoned tree ... (Huerta-Cabrera v. INS,
466 F.2d 759 (CA. 7, 1972).
Thus, even assuming, arguendo, that the May confrontation resulted in respondent's temporary custody and that there was some
defect in the manner in which he was then apprehended, the
deportation hearing was not thereby rendered illegal. The evidence of deportability on which the decision rested was the
respondent's November statement (Exh. 3). That statement was
independent of, and untainted by, the May questioning.
Because the respondent stood mute at the deportation hearing,
evidence was introduced to identify him as the subject of the
proceedings. This evidence was the respondent's driver's license
(Exh. 4), the records of prior bond proceedings (Exh. 5), and the
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Interim Decision #2193
testimony of Service personnel who had interviewed him prior to
the hearing.
Counsel contends that the admission of the driver's license was
improper and makes the record fatally defective. Counsel objects
to the admission of the driver's license on the ground that it was
taken during an illegal arrest, illegal because the Miranda warnings were not administered prior to any questioning. However, we
note that during oral argument before us counsel himself admitted
that the Service investigators followed proper procedure when
they obtained the driver's license:
Chairman: ... the Immigration officer ... inquired of this man as to his
identity. And this respondent produced his driver's license which
contained his name, and that identified him. What was wrong with
this procedure?
Attorney: Nothing. Up to that point nothing was wrong. (Tr. of oral argument,
P. 9)
In any event, since the driver's license is not a crucial piece of
evidence in this case—even without it, the evidence in the record
identifying the respondent is overwhelming—we need not further
concern ourselves with its admissibility.
Moreover, there is no support in the cases for the proposition
advanced by counsel that immigration officers must administer
warnings as set forth in Miranda v. Arizona, supra, prior to any
Questioning. While some have held that there is no right to counsel
during the taking of a statement in the investigative stage of an
immigration proceeding, 1 and that, consequently, Miranda warnings need not be given because deportation proceedings are civil,
not criminal, in nature,2 we need not rely on that approach. It is
clear in any event that the requirement of warnings applies only
when the subject of the inquiry is in custody or is deprived of his
freedom in a significant way, Miranda v.
Arizona, supra. There is
no showing in this record that the respondent was in custody or
deprived of his freedom when questioned in May 1972. 3 In fact, he
left the scene.
As for counsel's claim that the questioning constituted an illegal
arrest, the record indicates that the questioning in May can be
Nason v. INS, 370 F.2d 865 (CA. 2, 1967); Matter of Steele, 12 L & N. Dec. 302
(BIA, 1967).
2 Jolley v. INS, 441 F.2d 1245, 1255 (C.A. 5, 1971), cert. den.,
404 U.S. 946 (1971);
Matter of Lavoie,
12 I. & N. Dec. 821 (BIA, 1968), affd Lavoie v. INS,
418 F.2d 732,
734 (C.A. 9, 1969), cert. den.
400 U.S. 854 (1970); Matter of Pang,
11 I. & N. Dec.
213 (BIA, 1965), affd Ah Chiu Pang v. INS,
368 F.2d 637 (C.A. 3, 1966), cert. den.
.
386 U.S. 1037 (1967).
Counsel asserted at oral argument that a gun was "pulled" on the respondent but there is nothing in the record so indicating.
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Interim Decision #2193
characterized neither as illegal nor as an arrest. Section 287(a)(1)
of the Immigration and Nationality Act gives authority to officers
of the Immigration and Naturalization Service to interrogate
without a warrant any person believed to he an alien as to his
right to be or remain in the United States. Such interrogation has
been held not to constitute an arrest, Yam Sang fiwai v. INS, 411
F.2d 683 (D.C. Cir., 1969), cert. den.
396 U.S. 877 (1970); Au Yi Lau v.
INS,
445 F.2d 217 (D.C. Cir., 1971), cert. den.
404 U.S. 864 (1971);
Cheung Tin Wong v. INS,
468 F.2d 1123 (D.C. Cir., 1972). It may be
deduced from these cases that mere detention for questioning does
not constitute "custody," and, therefore, does not require that
Miranda warnings be given before any questioning.
In view of the above, we conclude that there was nothing illegal
about the May questioning, or the obtaining of the respondent's
driver's license, and that the special inquiry officer's finding of
deportability was fully supported irrespective of the legality of the
May questioning.' The respondent's November statement, made
after a full warning as to his rights, constituted independent,
untainted, clear, convincing and unequivocal evidence of deportability. It was a voluntary statement against self -interest and
admissible as such, Matter of C—C—Y—, 9 I & N. Dec. 225 (BIA,
1961); Matter of P—,
5 I. & N. Dec. 306 (BIA, 1953); Schoeps v.
Carmichael,
177 F.2d 391 (C.A. 9, 1949), cert. den.
339 U.S. 914
(1950); Gonzales v. Landon,
215 F.2d 955 (C.A. 9, 1954).
The respondent did not apply for any relief from deportation.
ORDER: The appeal is dismissed.
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