Interim Decision #2132
MATTER OF PEREZ-LOPEZ
In Deportation Proceedings
A-19171027
A-19171025
Decided by Board March 8, 1972
An anonymous letter, received after the termination of deportation proceedings
because of tainted evidence, which resulted in a reopened hearing with the
introduction of additional evidence leading to deportability, was a lead clear
and independent of any taint, and the deportation of respondents was ordered
on the basis of the new evidence.
CHARGE:
Order; Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant
visitor—remained longer (both).
ON BEHALF OF RESPONDENTS: Lloyd E. McMurray, Esquire
228 McAllister Street
San Francisco, California 94102
(Brief filed)
At a reopened hearing, the special inquiry officer ordered respondents deported. He certified this order to the Board. The issue
is whether the evidence used against respondents is free of taint.
We find it is and, therefore, will make no change in his order.
The special inquiry officer originally terminated deportation
proceedings on the ground that the Service's case against respondants was based on evidence that was the "fruit of the poisonous
tree." He found that a Service on-the-street questioning of respondents resulted in their legal arrest, that the Service subsequently made an illegal search and seizure of documents in
respondents' living quarters, that these documents were used as
leads to obtain evidence from the Service and State Department
files, and that this evidence was presented by the Service at the
deportation hearing to establish that respondents were Mexican
aliens who had entered for a temporary period and had remained
without authority. The special inquiry officer concluded that this
evidence was tainted and could not be used to establish deportability. The special inquiry officer also held that respondents' admis-
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Interim Decision #2132
sions against interest made after their arrest could not be used to
establish deportability because the admissions were obtained after
respondents' detention had become unlawful because of the Service's failure to follow its own regulations, 8 CFR 287.3. The facts
are stated in detail in the special inquiry officer's comprehensive
order of March 8, 1971.
After the special inquiry officer terminated the proceedings, the
Service received an anonymous letter stating that the respondents, who are brothers, are aliens illegally in the United States;
that they had brought their mother and also the family of one
respondent (wife and minor children) here; that they all lived at a
certain address and that the respondents were working in the
United States. The Service obtained a reopening of the deportation proceedings from the special inquiry officer- At the reopened
hearing there was introduced in evidence the anonymous letter
and statements taken by a Service investigator from the adult
females named in the letter; the Service officer and the adult
females testified. The special inquiry officer ruled that the Service
had established its case by untainted evidence. He entered the
order of deportation which is now before us. The special inquiry
officer held that the letter would have led the Service to question
respondents' adult relatives named in the letter and that such
examination would have ultimately put the Service in possession
of the same evidence from its files and those of the State Department that it had tried to use against respondents at the original
deportation proceeding. Such evidence, free of taint, supported an
order of deportation.
Counsel concedes that the questioning of the mother and the
wife named in the anonymous letter would have revealed that the
respondents were illegally in the United States (counsel's brief, p.
2). However, he contends that since it was the anonymous letter
that led the Service to these witnesses, the Service must show that
the anonymous letter was itself clear of taint, and to do this, the
Service must show that the writer of the anonymous letter (the
informer) had made a factual statement and that his statement
was based on personal knowledge. In short, counsel would apply
here, the "probable cause" test used in determining when an
informer's statement may properly be the basis for the issuance of
a search warrant, Aguilar v. Texas,
(1964).
We must reject counsel's contention. The test as to the admissibility of evidence offered by the Government in a case where it has
obtained evidence unlawfully is well settled. It is not the rule
advanced by counsel. It is that the Government has the burden of
establishing that it gained or could have gained the knowledge it
relies upon from a source independent of its wrongful act, Wong
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Interim Decision #2132
Sun v. United States,
(1963). Applying this test
and assuming arguendo, that the special inquiry officer's termination order was correct for the reasons he gave, we find that the
anonymous letter was a lead independent of any taint, that it
warranted Service inquiry and that the evidence which would
have resulted from it would have established respondents' deportability.
We must reject counsel's attempt to equate an anonymous letter
to the Service which became the basis for an investigation, with an
informer's tip to the police which became the basis for the issuance
of a warrant in a criminal case. There is a material difference
between considerations which justify a Service investigation based
upon an anonymous letter and the considerations in criminal cases
which require a showing of probable cause before a warrant may
be issued on an informer's tip. The immigration laws specifically
provide that an investigation may be undertaken without the
issuance of a warrant (as long as there is no unconstitutional
invasion of privacy), section 287(a)(1) of the Act, 8 U.S.C. 1357(a)(1).
See section 235 of the Act, 8 U.S.C. 1225. An immigration investigation can be initiated without independent evidence of a violation of
the immigration laws, United States v. Montez-Hernandez,
(1956).
There is nothing in this record which would indicate that the
anonymous letter was inspired by the Service. We reject the
notion that an alien illegally in the United States who is now
found deportable on untainted evidence can achieve what is
tantamount to permanent residence merely because the Service at
one time may have acted illegally in assembling evidence of his
deportability.
In view of the action we now take, it is unnecessary to discuss
the special inquiry officer's order of March 8, 1971 terminating
proceedings.
ORDER: No change is made in the special inquiry officer's
order.
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