Interim Decision #2436
MATTER OF STAPLETON
In Deportation Proceedings
A-20411922
Decided by Board September 30, 1975
(1) In the absence of exceptional circumstances, a challenge in deportation proceedings to
the voluntariness of an admission or confession will not be entertained when first made on
appeal.
(2) Where a Service investigator testified at the deportation hearing that respondent,
during an interview, admitted unauthorized employment, counsel's contention, first raised
on appeal, that respondent's admission was coerced, is rejected, since there is nothing in
the record which suggests that the admission was in any way the product of coercion;
counsel for respondent did not object to the testimony of the investigator at the time of the
hearing, and no evidence in support of the claim of coercion has been submitted on appeal.
(3) Counsel's contention that hearsay evidence was improperly considered by the immigration judge in rendering his decision, is rejected where the record indicates that the
heamay testimony was first elicited from a Service investigator upon cross-examination
by counsel, and counsel yoked no objection to its introduction et that time In any event.
hearsay evidence is admissible in deportation proceedings.
CHARGE:
Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)]—Failed to comply with
conditions of nonimmigrnat status.
ON BEHALF OF RESPONDENT: Sharon L. Nolan, Esquire
#4. Nye Cade
St. Thomas, Virgin Islands 00801
In a decision dated March 12, 1975, the 'immigration judge found the
respondent deportable, but granted the respondent's application for
voluntary departure. The respondent has appealed from the finding of
deportability_ The appeal will be dismissed.
The respondent is a native of St. Kitts and a citizen of the United
Kingdom who entered the United States in November of 1973 as a
nonimmigrant temporary worker. The Service contends that he is deportable under section 241(a)(9) of the Immigration and Nationality Act
as an alien who has failed to comply with the conditions of his nonimmigrant status by accepting unauthorized employment.
At the hearing, the respondent denied the factual allegation in the
order to show cause' relating to the alleged unauthorized employment.
469
Interim Decision #2486
The Service thereupon called one of its criminal investigators as a
witness. The Service investigator testified that he had interviewed the
respondent at which time the respondent admitted the alleged unauthorized employment.
The respondent does not deny that he made such an admission to the
Service investigator, nor has he produced any evidence challenging the
truth of the statements made in that admission. On appeal, however,
counsel for the respondent alleges that the respondent's admission was
coerced, and evidently argues that it should have been excluded from
consideration by the immigration judge.
We reject counsel's contention. There is nothing in the reocrd which
suggests tha; the respondent's admission was in any way the product of
coercion. Counsel for the respondent did not object to the testimony of
the Service investigator at the time of the hearing, and no evidence in
support of the coercion claim has been submitted on appeal. In the
absence of exceptional circumstances, a challenge to the voluntariness of
an admission or confession will not be entertained when first made on
appeal. Cf. United States v. Irby, 480 F.2d 1101 (C.A. 8, 1973); U.S. ex
rel. Lewis v. Pate,
445 F.2d 506 (C.A. 7, 1971); La Brasca v. Misterly,
423 F.2d 708 (C.A. 9, 1970), cert. denied,
400 U.S. 838 (1970); Garrison
v. Patterson.
405 F.2d 696 (C.A. 10, 1969), cert. denied,
404 U.S. 880
(1971); United States v. Frazier,
385 F.2d 901 (C.A. 6, 1967); Evans v.
United States,
377 F.2d 535 (C.A. 5, 1967); Williams v. Anderson,
862
F.2d 1011 (C.A. 3, 1966), cert. denied,
385 U.S. 988 (1966).
Counsel presents several other due process challenges to the hearing
below, which are equally without merit. The transcript of the hearing
may be incomplete because of recording problems; counsel, however,
has failed to demonstrate any resulting prejudice to the respondent, and
we are satisfied that none exists. The record also fails to support
counsel's allegation that the immigration judge was biased against the
respondent. Finally, we reject counsel's contention that hearsay evidence was improperly employed by the immigration judge in rendering
his decision. The record indicates that the hearsay testimony was first
elicited from the Service investigator upon cross-examination by counsel for the respondent. Counsel voiced no objection to its introduction at
that time, and in any event, hearsay is admissible in deportation proceedings. See U.S. ex rel. Vajtauer v. Commissioner of Immigration,
273 U.S. 103 (1927); U.S. ex rel. Bilokumsky v. Tod,
263 U.S. 149
(1923); U.S. ex rel. Impastato v. O'Rourke,
211 F.2d 609 (C.A. 8, 1954),
cert. denied,
348 U.S. 827 (1954); de Hernandez v. INS,
498 F.2d 919
(C.A. 9, 1974); Solis-Davila v. INS,
456 F.2d 424 (C.A. 5, 1972); Matter
of Ponco,
15 I. & N. Dec. 120 (BIA 1974).
The decision of the immigration judge was correct. Deportability has
been established by clear, convincing and unequivocal evidence.
470
Interim Decision #2436
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 31 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.
471
