HEMBLEN

                                               Interim Decision #2300




                        MATTER OF HEMBLEN
                       In Exclusion Proceedings
                                 A-18480MS

                 Decided by Board January 31, 1974
                   Decided by Board June 28, 1974

When a clafin is made under 18 U.S.C. 3504(a) that the subject of exclusion
 proceedings has been aggrieved by an unlawful act, a motion to suppress
 evidence derived therefrom under 18 U.S.C. 2518(10)(a) may properly be
 received and adjudicated by the immigration judge.
EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)}—Immigrant
                               with no immigrant visa and not exempt therefrom.

ON BEHALF OF APPLICANT:                       ON BEHALF OF SERVICE:
  Paul G. Chevigny, Esquire                      Irving A. Appleman
  New York Civil Liberties Union                 Appellate Trial Attorney
  84 Fifth Avenue                                Allan A. Shader
  New York, New York 10011                       Trial Attorney
                                                 Charles Gordon
                                                 General Counsel

                              BEFORE THE BOARD
                              (January 31, 1974)

  This is an appeal from a decision of an immigration judge
finding the applicant excludable on the above charge and ordering
her exclusion and deportation from the United States. The appeal
will be dismissed.
  The applicant is a 28-year-old married female alien, native and
citizen of Canada, who was admitted to the United States for
permanent residence on January 8, 1969. The record indicates that
she departed from the United States on or about May 11, 1970, and
on July 12, 1970 sought readmission to this country as a lawful
permanent resident. On that date she presented an Alien Registration Receipt Card, Form 1-151, and was inspected by an officer
of the Immigration and Naturalization Service, who deferred
completion of the inspection. The applicant was then paroled into
the United States for further inspection at New York, New York,
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 Interim Decision #2300
where on September 15, 1972 her case was referred to an immigration judge for determination.
   At a hearing held before an immigration judge on Oetober 27,
1972, at which the applicant was represented by present counsel,
certified copies of certain pages of the applicant's Canadian passport were offered into evidence by the trial attorney, without
objection by counsel (Tr. p. 5), and were received collectively as
Exhibit 5. The passport contains stamped endorsements which
show that the applicant entered the Soviet Union at Moscow on
May 12, 1970 and departed on June 9, 1970. Also introduced into
evidence were several newspaper articles which indicate that the
applicant was in North Vietnam during 1970 (Exs. 6, 7, 8, 9, 10),
including one which had been written under the byline "Judy
Gumbo" (Ex. 11). The writer of one of these articles (Ex. 7) testified
at the hearing and identified the applicant as the "Judy Gumbo"
who gave a press conference which he attended and on which he
based his article (Tr. pp. 14-16). 1 The immigration judge concluded
that this established that the applicant had engaged in travel
proscribed by 8 CFR 211.1(bXl), which provides in pertinent part:
      Iu lieu of an immigrant visa, an immigrant alien returning to an unrelin-
   9uished lawful permanent residence in the United States after a temporary
   absence abroad not exceeding 1 year may present Form 1-151, Alien Registration Receipt Card, duly issued to him: Provided, That during such absence he
   did wit travel to, in, or through any of the following places: ... Communist
   Portions of ... Viet-Nam, and, ... the Union of Soviet Socialist Republics....
   The above regulation further provides that these travel restrictions are waived for an alien who, subsequent to his departure
 from the United States, has received approval from the Service or
 the Department of State authorizing travel to the restricted
 places. 8 CFR 211.1(b)(2) provides that a similar waiver of travel
 restrictions may be secured by an alien who, prior to his departure
 from the United States, obtains a reentry permit which authorizes
such travel. The applicant has stipulated that she had neither a
reentry permit nor authorization from the Government to travel
to or in areas interdicted by 8 CFR 211.1(b)(1) (Tr. pp. 7 and 9). We
therefore agree that the applicant's Form 1-151 was insufficient to
establish her admissibility to the United States, and the immigration judge correctly determined that she was excludable under
section 212(aX20) of the Immigration and Nationality Act.
   On appeal counsel contends that 18 U.S.C. 3504 requires that we
remand the record for an inquiry into the applicant's claim that
she has been the subject of unlawful electronic surveillance by the
Government. At the exclusion hearing, the trial -attorney denied
   The applicant also has stipulated that she has been known by the name
"Judy Gumbo" (Tr. p. 3).

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                                                 Interim Decision #2300
 the occurrence of such surveillance (Tr. pp. 5-6). We note that he
 has executed an affidavit restating this denial, in opposition to a
 motion for a suppression hearing under 18 U.S.C. 2518, filed by the
 applicant in the United States District Court for the Southern
 District of New York.2 We find that the Service has thereby
 discharged its obligation, under 18 U.S.C. 3504, to either affirm or
 deny the occurrence of the alleged unlawful act. See In re Horn,

 (CA. 3, 1972) and United States v. Doe (In re Marx),
451 F2d 466 (C.A. 1, 1971).
   Further, we find unpersuasive counsel's contention that, these
exclusion proceedings may have been "tainted" by the use of
illegally obtained wiretap evidence. The evidence on which the
immigration judge based his decision consists of entries in the
applicant's Canadian passport, establishing her presence in a
proscribed area, and newspaper articles recounting her own,
deliberate, public statements. With regard to the present proceedings, the applicant could not therefore have been "aggrieved" by
any claimed unlawful wiretap within the contemplation of 18
U.S.C. 3504(aX1). Nor could the evidence on which the immigration
judge relied be characterized as the "primary product of an
unlawful act," as contemplated by 18 U.S.C. 3504(a)(1), since it
merely represents documentation of the applicant's volitional
conduct.
  Counsel also challenges the validity of 8 CFR 211.1(b), claiming
that it is not authorized by the Immigration and Nationality Act.
We reject this contention. Section 103 of the Act gives the Attorney General broad authority to promulgate regulations in furtherance of the purposes of the statute. If a regulation is reasonably
related to the purposes of the Act, it will be deemed valid, Fook
Hong Mak v. INS, 435 F2d 728 (C.A. 2, 1970). An alien's right to
travel outside the United States is subject to restrictions not
applicable to citizens, Harisiades v. Shaughnessy, 

 (n. 10). The regulation in question, therefore, is clearly within
the scope of the Attorney General's authority, as delegated to the
Commissioner of Immigration and Naturalization, pursuant to section 103 of the Act. See Bilbao-Bastida v. INS, 409 F2d 820 (C.A. 9,
1969). We are without power to rule on counsel's assertion that 8
CFR 211.1(b) is an unconstitutional violation of the applicant's
freedom to traveL C£ Matter of Santana, 13 L & N. Dec. 362 (BIA.
1969); Matter of M—, 9 L & N. Dec. 138 (B IA 1960); Matter of L-- 1 

 (BIA 1951). Such a determination is properly a
judicial, not an administrative, function.
  2 While this affivavit has not been made part of the administrative record, it
was called to our attention at oral argument (Tr. of oral argument, pp. 20 22)
                                                                            -


and its contents were recited.

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 Interim Decision #2300
   We reject, too, counsel's argument that under Rosenberg v.
Fleuti, 

 (1963), the applicant is not seeking to make an
"entry" within the meaning of section 101(aX13) of the Act. In that
case the Supreme Court said that an alien's need to procure travel
documents for a trip abroad, and whether the object of the trip is
contrary to a policy reflected in the immigration laws, are relevant
factors in determining whether such a departure is meaningfully
interruptive of the alien's permanent residence so as to subject
him to the consequences of an "entry" upon his return, within the
scope of section 101(aX13) of the Act. In the present case, the
applicant needed travel documents for her trip, and is now
charged with excludability precisely because she engaged in travel
which, for policy reasons, is restricted by the immigration laws, 8
CFR 211.1(b). The applicant's departure was not, therefore, "innocent" and "casual" within the holding of Rosenberg v. 

 nor was her absence of two months a "brief' one. See
Matter of of Janati-Ataie, Interim Decision 2170 (A.G. 1972). See
also Bilbao-Bastida v. INS, supra, at 823.
  The decision of the immigration judge in supported by clear and
convincing evidence, and it will be affirmed.
  ORDER: The appeal is dismissed.

Maurice A. Roberts, Chairman, Dimenting:

  It is with some hesitancy that I dissent from the Board's
decision, for it has surface plausibility, appears to be eminently
reasonable, and is disarmingly simple. It seems to me, however,
that the solution is not so simple and that a remand is required on
the issue raised under 18 U.S.C. 3504.
   As an alien lawfully admitted for permanent residence, the
applicant is assimilated, on her return from a temporary visit
abroad, to the status of a resident alien. Before she can be lawfully
excluded, she is entitled to a due process hearing on the charge on
which the Immigration and Naturalization Service seeks to exclude her. The burden of proving the charge is on the Service,
Kwong Hai Chew v. Rogers, 

 (D.C. Cir. 1958); Matter of
B ecorra-Miranda, 

 (BIA 1967).
  The record establishes, by evidence which to me is clear, convincing and unequivocal, that during the period of her absence
from the United States between May 11, 1970 and July 12, 1970,
the applicant travelled to both the U.S.S.R. and the Communist
portion of Vietnam. 1 The question presented is whether the appli-

  I Her presence in either of those places would be sufficient to preclude her use
of her Form 1-151 as an entry dcicument under 8 CFR 211.1(41).
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                                                  lilloCE1111   J./GUID1V11    %.*




 cant's challenge to that evidence under 18 U.S.C. 3504 was properly rejected. I think it was not and would remand the record to
 the immigration judge for further proceedings.
    Preliminarily, I would reject counsel's contention (which the
 Board's treatment of the issue renders it unnecessary to confront)
 that the suppression question raised incident to 18 U.S.C. 3504 can
 be tried and adjudicated only in a judicial forum. 2 The short
  answer is that by their terms sections 3504(a) and 18 U.S.C. 2510 et
 seq. govern not only court hearings but also proceedings before
 quasi-judicial tribunals. Those provisions were assumed without
 question to be applicable to a hearing before an immigration judge
 in Bufalino v. INS, 473 F2d 728 (C.A. 3, 1973), cert. denied 

. Motions to suppress evidence have heretofore been made and
 adjudicated in deportation proceedings before immigration judges.
 See Matter of Au, Yim and Lam, 13 L & N. Dec. 294 (BIA, 1969),
 affirmed An Yi Lau v. INS, 445 F.2d -217 (D.C. Cir. 1971), cert.
 denied 

; Matter of Wong, 

 (B IA,
 1971);Matter of Perez-Lopez, Interim Decision No. 2132 (BIA, 1972).
 To require such suppression issues to be decided initially by the
 courts would not only impose an intolerable and unnecessary
 burden on them but would at the same time unduly delay the
 administrative proceedings pending before the immigration judge.
 I can see no good reason why the issue thus raised cannot be
confronted • and settled in the first instance by the immigration
judge.
   Turning now to the merits of that issue, it seems to me that the
 statutory provisions under discussion were designed to codify and
refine the procedures for adjudicating claims that the Government's evidence had been obtained by illegal wiretaps or other
unlawful means. Where it was established that the Government's
evidence had been thus illegally procured, not only was that
evidence suppressed but also any evidence derived from the
information thus illegally obtained, i.e., "the fruit of the poisonous
tree!' Nardone v. United States, 

 (1939); Wong Sun v.
United States, 

 (1963). The burden was on the proponent of the claim to prove that the Government had, in fact,
engaged in the illegal evidence-gathering activity complained of.
Once the use of such an illegal technique by the Government was
proved, however, the burden shifted to the Government to show
that the evidence it relied on was not obtained, directly or
  2 That contention was seriously urged before the immigration judge (Tr. p. 2),
before the United States District Court for the Southern District of New York in
the pending litigation there (Affidavit of Paul G. Chevigny, paragraph 4(a),
Exhibit 4) and hefnre the Board on appeal (Supplemental Brief for Respondent,
  1).

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 Interim Decision #4iuti
 derivatively, from the tainted source. The law as codified subsequently in 18 U.S.C. 2510 et seq. and 18 U.S.C. 3504 did not lighten
 the Government's burden in that regard. See Gelbard v. United
States, 

 (1972).
   Counsel for the applicant asserts (Tr. p. 6) that as a result of
 information illegally obtained by unlawful electronic surveillance,
the Government placed the applicant's name on a "lookout" list
posted at airports, and as a consequence when she applied for
 admission at the Montreal airport she was stopped and referred
for further examination culminating in these exclusion proceedings, notwithstanding her possession of a Form 1-151 valid on its
face. Evidence in support of the claimed use of electronic surveillance has been presented (Exhibit 4). In my estimation, this
evidence is sufficient to bring into play the provisions of section
3504.
   It seems clear to me that the applicant is a "party aggrieved"
within the meaning of section 3504(a.X1). As the subject of these
exclusion proceedings, who stands to lose her permanent residence
here if her challenge to the evidence is rejected, the applicant
clearly has standing to raise the issue. How much evidence of the
claimed interception she must present to show that she is "aggrieved" need not now be decided. One court has expressed the
view that section 3504(a)(1) is triggered by the mere assertion that
unlawful wiretapping has been used against a party, In re Evans,

 (D.C. Cir. 1971), cent. denied 

. Another
court has taken a narrower view, stating that section 3504(aX1)
places on the aggrieved party the responsibility of making a
threshold showing of surveillance and some showing of a basis for
suspecting illegal action, United States v. Doe, 

 (C.A. 1,
1972). On either view, it seems to me, the applicant has made a
sufficient showing to east on the Service the statutory burden of
affirming or denying the occurrence of the alleged unlawful act.
   To hold, as does the Board's opinion, that the applicant is not
"aggrieved" within the meaning of section 3504(aX1) because the
evidence on which the immigration judge based his decision
consists of documents which the Board considers untainted, seems
to me to beg the question. That is the very point at issue. If there
was indeed unlawful electronic surveillance of the applicant, then
the passport entries and newspaper articles in evidence, while not
inadmissible as "the primary product" of the unlawful act, might
still be inadmissible as "obtained by the exploitation of an unlawful act," i.e., as the "fruit of the poisonous tree." So far as I am
aware, the doctrine that the "fruit of the poisonous tree" is
inadmissible has not thus far been repudiated by the courts. See,
e.g., United States v. Calandra, 

 (1974). It would render
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                                           Interim Decision #2300
 nugatory the "affirm or deny" provision of section 3504(a)(1) to
 require a party to prove, before he could be considered "aggrieved," that not only was there an "unlawful act" but also that
 the Government's evidence is the product of that act or its
 exploitation.
   If it could be assumed that under no conceivable circumstances
 could the Service's possession of the challenged evidence be attributable to information stemming from the claimed "unlawful act," I
 would go along with the Board's decision. Underlying the statutory provisions in issue is the policy that the Government shall not
 benefit evidence-wise from its own unlawful acts. Congress could
 not have intended recourse to those provisions in a situation
where there could not possibly have been any such unlawful act.
But that is not this situation.
   Here, a number of factual variables are possible: (1) The Service
could have learned through an "unlawful act" that the applicant
was travelling (or intended to travel) to the proscribed foreign
areas; could have posted the alleged airport "lookout" notices as a
result; and could have achieved its documentary and other eviclones (including the notations in her passport) in consequence of
being thus alerted solely by information deriving from the "unlawful act." (2) The Service could have learned of the applicant's
proscribed travel solely through clearly untainted sources (e.g., the
newspaper accounts); could have posted the alleged airport "lookout" notices as a result; and could have achieved its documentary
and other evidence through being thus alerted by information
deriving from sources clearly legitimate. (3) The. Service could
have been unaware of the applicant's foreign travel until her
actual return; could have posted no airport "lookout" notices;
could have first learned of her proscribed travel by examining the
notations in her passport when she was inspected on arrival at
Montreal airport; and could thereafter have assembled the other
evidence as a result of being thus alerted by information clearly
unexceptionable. Other possible factual variations are conceivable,
but the foregoing should be sufficient to demonstrate that on the
record as thus far developed there is as yet no open-and-shut
answer.
  It may be that the Board's decision is premised on the notion
that it would make no difference even if, as postulated in variable
(1) above, the Service had been alerted to the applicant's absence
by information gleaned solely through an unlawful act, so long as
the evidence actually relied on (passport entries, newspaper reports, Oppenheimer's testimony) was not the direct product of the
unlawful act. It seems to me that such an approach ignores the
possibility that the evidence actually relied on may have been
                                745
 Interim Decision #2300
 assembled as a result of the information allegedly obtained unlawfully, and that the evidence may thus be "the fruit of the
poisonous tree." If that turns out to be the fact, then the question
whether the taint is removed by attenuation, so as to render the
evidence admissible, must await further development of the record
on remand.
   In its brief on appeal before us, the Service asserts (p. 9), "It was
clearly the overt act of the applicant in her publicity effort which
brought her travels in the U.S.S.R. and North Vietnam to the
attention of the Service so that she was stopped at Montreal for
completion of inspection. She thereafter presented her passport
showing travel in U.S.S.R." This assertion may very well turn out
to be the fact, upon further development of the record on remand. 3
                                                                                      Athispourefca,tsionuemrag-'
ment and assumes the existence of the very facts in dispute. The
Board's decision, in my view, is based on the same fallacy.
   I am somewhat puzzled by counsel's seeming concession at oral
argument that the applicant's travel to the U.S.S.R. was established by probative evidence. 4 If that were the fact, then that
would end the matter, so far as I am concerned, for I agree with
the Board's conclusion that 8 CFR 211.1(bX1) is valid. The applicant's presence in the U.S.S.R. is sufficient, without more, to
render her inadmissible as charged. The concession, however,
appears to be inconsistent with counsel's seriously urged contention that the evidence is tainted. Taken in context, the concession
must be construed as part of the larger argument that, though
probative, the passport entries are inadmissible as evidence because they stem from initial illegal actions by the Government, an
issue that remains to be developed on remand.
   At the hearing before the immigration judge, the following
colloquy took place between the immigration judge (SR)) and the
Service's trial attorney, Mr. Shader (Tr. p. 6):
   MR_ SHADER: I would say that there is no reason at all to assume that she
   was stopped because of electronic surveillance, none at all.
  MO: Mr. Shader, do you have the administrative file pertaining to the
  applicant?


    ' In view of the passport waiver accorded returning residents by 8 CFR
211.2(c), there is no reason to assume that, absent some sort of "lookout" posted
at the airport, on arrival at Montreal the applicant would have been asked to
submit her passport to the immigrant inspector.
   4 (Tr. of oral argument, p. 3): "We concede there was clearly [adjmissible

probative proof [of] travel, an official U.S. authenticated document showing
there was travel to the U.S.S.R. stamped in her passport." (Tr. of oral argument,
p. 5): "I concede in a legal sense she was in the U.S.S.R. I concede because T have
to, there is probative evidence she was there."

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                                                   Interim Decision #2300
   MR. SHADER: I do, sir.
   SIO: And was your negative statement as a result of your examination of
   that file?
   MR. SHADER: That is correct, sir.
In his opinion, the immigration judge concluded (p. 6) that the
foregoing disclaimer was sufficient to meet the requirements of
section 3504, stating "Such negation need not, in this exclusion
hearing, have the same rigidity as in judicial proceedings."
  At the oral argument, the Service's representative handed up,
over counsel's objection, a copy of Mr. Shader's affidavit filed in
the District Court proceedings in opposition to the applicant's
motion for a suppression hearing. That affidavit states, in pertinent part:
   5. No evidence introduced at the hearing held on October 27, 1972, or which
   will be introduced at any adjourned hearing was obtained directly or indirectly as the result of any intercepted wire or oral communication whatsoever.
   6. I have reviewed the entire Service file relating to [the applicant) and there
   is no information contained therein that was derived either directly or
   indirectly from the use of any interception of wire or oral communication.
   Additionally, no interception of any wire or oral communication has been the
   source, direct or indirect, of any information obtained during the Service's
   investigation or pending administrative action.
   The Board has concluded that, through the above-quoted assertions of its trial attorney, the Service has discharged its obligation
under section 3504 to either affirm or deny the occurrence of the
alleged unlawful act. I cannot agree. In the quoted material, the
trial attorney neither affirmed nor denied the occurrence of the
alleged electronic surveillance. He merely stated his own generalized conclusion that the Service's information and evidence did not
derive from any intercepted communication. This is a far cry from
a categorical statement, made after inquiry, that there was in fact
no interception. In my estimation, it is the latter sort of statement
which section 3504 contemplates. Cf. United States v. Doe, 451 F2d
466 (C.A. 1, 1971); In re Horn, 458 F2d 468 (C.A. 3, 1972). The trial
attorney's generalized conclusion is as compatible with the existence of the alleged interceptions as it is with their nonexistence. A
factual conclusion of this sort as to whether or not the evidence in
 question does in fact derive from the alleged interception is for the
tribunal to make, not the trial attorney.
   The danger in permitting such a generalized disclaimer to stand
is that, however sincerely made, it is liable to be unintentionally
false unless based on specific inquiry as to the existence or not of
the alleged intercepts. The Service file itself may not reveal that
the sources of its information were illegal wiretaps. That was the
situation in the Bufalino case. The Board's decision in that case
                                      747
 Interim Decision #2300
 states, "During the course of the last reopened hearing, the trial
 attorney denied any knowledge of wiretapping or interception of
 phone calls to the respondent by the Immigration and Naturalization Service," Matter of Bufalino, 

 (BIA
1967). And see Bufalino v. INS, supra, 473 F2d 728 at 732: "In the
 hearing before the [immigration judge] the prosecuting attorney
 and his principal investigator stated that they had no knowledge
whatsoever of wiretapping in the cause and that there was none
to the best of their knowledge." Those statements were undoubtedly sincerely made by the Service officers involved. Yet, it was
subsequently brought out, Bufalino's telephone conversations had
in fact been intercepted by the F.B.I. Logs of the monitored
conversations were produced and a further hearing was held to
determine whether the Service's evidence was tainted, id at pp.
734-735.
   I cannot agree with the immigration judge that, in administrative proceedings such as these, the disclaimer need not meet the
standards required in judicial proceedings. Section 3504 in terms
applies equally to both types.
   It should be a relatively simple matter for the Service to
ascertain, by appropriate inquiry, whether agencies of the Government did, or did not, engage in the alleged unlawful interception.
If it turns out that there was such interception, the Service may
still be able to demonstrate that its evidence is free of taint. If, fur
example, as asserted by the Service in its brief before us, it was
the applicant's press conference while abroad that first brought
her travel to the U.S.S.R. and North Vietnam to the attention of
the Service, it should be a relatively simple matter to develop that
fact of record.
   I would remand the record to the immigration judge for further
hearing.

                         BEFORE THE BOARD
                           (June 28, 1974)

  On January 31, 1974, with one dissent, we dismissed the applicant's appeal from an order of an immigration judge excluding her
from admission to the United States. In doing so, we rejected
counsel's contention that under 18 U.S.C. 3504(a), remand to the
immigration judge was required for an inquiry into the applicant's
claim that she has been the subject of unlawful electronic surveillance by the Government. Because of the pendency of a court
action brought by the applicant to terminate the exclusion proceedings, our order was reviewed by the Department's Criminal
Division, which recommended to the Service that it file a motion
                                 748
                                                  Interim Decision #2300
 for reconsideration, asking that we remand the case to the immigration judge for further development of the administrative record
 in accordance with the procedures outlined in the dissenting
 opinion.
   The Service now moves that we reopen the proceedings and
 remand to the immigration judge for the purpose of conducting
 the hearing on the applicant's claim under 18 U.S.C. 3504(a).
 Counsel now opposes the Service motion on the ground that 18
 U.S.C. 2518(10)(a) requires that such a hearing must be in a
judicial, and not an administrative, proceeding. The Service motion will be granted and the record will be remanded to the
 immigration judge.
   By its terms, 18 U.S.C. 2515 prohibits the use of unlawfully
intercepted wire or oral communications as evidence "in any trial,
hearing, or other proceeding in or before any court ... department,
officer, agency, ... or other authority of the United States ... ."
SeCtion 2518 of Title 18 includes procedures for the determination
of motions to suppress such unlawfully obtained evidence. Section
2518(9) specifically governs judicial determinations, and section
25113(10Xa) refers to judicial as well as administrative proceedings
under section 2518.
   An examination of the precise language of section 2518(10Xa)
persuades us that the applicant's challenge to the immigration
judge's capacity to entertain a motion to suppress under that
section is without merit. That section provides:
     Any aggrieved person in any trial, hearing, or proceeding in or before any
   court, department, officer, agency, regulatory body, or other authority of the
   United States ... may move to suppress the contents of any intercepted wire
   or oral communication, or evidence derived therefrom, on the grounds that-
    (i) the communication was unlawfully intercepted....
The provision goes on to state that such a motion "shall be made
before the trial, hearing, or proceeding unless there was no
opportunity to make such motion...." (Emphasis supplied.) Nowhere does this section expressly, or, in our view, impliedly, limit a
determination on such a motion, made in the course of any
proceeding before an authority of the United States, to a judicial
officer. Nothing in the legislative history of the provision supports
counsel's contention, 1968 U.S. Code Cong. & Ad. News, pp. 2195-
2196.
  It is our conclusion that when Congress provided for the filing of
a motion to suppress illegally obtained wiretap evidence in various
proceedings of the United States Government, it intended that the
particular presiding officer rule on its sufficiency. If Congress
intended to carve out an exception to the doctrine of exhaustion of
administrative remedies in proceedings under section 2518, and to
                                      749
 Interim Decision #2300
 provide for immediate judicial intervention, it would have so
 stated.
   Counsel's reference to the legislative history does not support
his assertion. 1968 U.S. Code Gong. & Ad. News, pp. 2189-2196,
which discusses section 2518, concerns itself primarily with the
procedures for obtaining a court-ordered interception. Naturally,
the provision there discussed, by its terms, contemplates a judicial
proceeding
   Section 2518 is captioned "Procedure for interception of wire or
oral communications" (emphasis supplied), and deals with judicially authorized wiretap orders. This accounts for the frequent
references to "judge" throughout section 2518. It does not, however, restrict the well-established authority of administrative officers in immigration proceedings to rule on questions of the
admissibility of evidence. See Matter of Au, Yin?. and Lam, 

 (BIA 1969), affirmed Au Yi Lau v. INS, 445 F2d 217
(D.C. Cir. 1971), cert. denied 

; Matter of Wong, 13 L & N.
Dec. 820 (BIA 1971); Matter of Perez-Lopez, Interim Decision No.
2132 (BIA 1972).
   Sound judicial administration requires that unnecessary litigation be avoided. It is possible for the applicant to get relief
administratively here, and if she does not, then judicial review of
the immigration judge's action is ultimately available. We will not
impute to Congress an intention to thrust upon the courts matters
which might have been disposed of administratively.
  We conclude, therefore, that when a claim is made under 18
U.S.C. 3504(a) that the subject of exclusion proceedings has been
aggrieved by an unlawful act, a motion to suppress evidence
derived therefrom may properly be received and adjudicated by
the immigration judge. Accordingly, the following order will be
entered..
  ORDER: The Service motion to reopen is granted and the
record is remanded to the immigration judge for further proceedings in accordance with the foregoing opinion.




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