Interim Decision #2438
MATTER OF TRILLERA
In Deportation Proceedings
A-20357073
Decided by Board October 14, 1975
(1) Assuming, arguendo, the Service learned of respondent's presence and location in the
United States by some unlawful means, the affidavit executed by respondent during the
course of an interview with a Service investigator (and which constitutes the primary
basis of a finding of deportability; is free of any possible taint, since it is the product of
respondent's %oluntary acts.
(2) Even assuming the Service became aware of respondent's presence and location in the
United States as a result of some sort of communication from either the Department of
Labor or the :)epartment of State, there was no impropriety in such assumed interagency cammrnieation No rights of respondent, a nonimmigrant visitor who was and
who remains unlawfully in the United States, could have been violated by such assumed
communication. Hence, respondent's allegations that the Service unlawfully learned of
her presence in this country are unfounded; her motion to suppress was properly
denied.
CHARGE:
Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2))—Nonimmigrant visitor—
remained longer.
ON BEHALF OF RESPONDENT; William H. Oltarsh, Esquire
225 Broadway
New York, New York 10007
In a decision dated July 31, 1975, the immigration judge found the
respondent deportable, but granted the respondent's application for
voluntary departure. The respondent has appealed the finding of
deportability, contending that the evidence introduced to establish deportability should have been suppressed by the immigration judge. The
appeal will be dismissed.
Exhibit 4 of the record is an affidavit signed by the respondent on
December 13, 1974, during the course of an interview before a Service
investigator. The respondent has acknowledged that she signed the
affidavit, and she does not dispute the accuracy of the information
contained therein. Primarily on the basis of this affidavit, we find that
the responde nt is a native and citizen of Colombia who entered the
United Staters as a nonimmigrant visitor, and that she has remained
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beyond the authorized length of her stay. The evidence is clear, convincing and unequivocal that she is deportable as charged by the Service.
The respondent does not challenge the sufficiency of the evidence of
deportability. She does, however, contend that that evidence should not
have been employed in determining deportability. The respondent basically argues that the Service unlawfully obtained knowledge of her
presence in the United States, and that it was on the basis of this
knowledge that she was requested. to appear for the interview at which
she executed the damaging affidavit.
We note that the respondent made a conscious voluntary decision to
meet with a representative of the Service and then voluntarily provided
the Service with the requested information. The record indicates that
the respondent was represented at the interview by either present
counsel or someone acting in behalf of present counsel (Tr. pp. 10-11;
Exh. 5). Even assuming that the Service learned of the respondent's
presence and location in the United States by some unlawful means, the
affidavit executed on December 13, 1974 is free of any possible taint
because it is the product of the respondent's voluntary acts. Cf. Mims
v. INS,
(D.C. Cir. 1966).
We are also convinced that the respondent's allegations regarding
unlawfully obtained evidence are unfounded. The respondent contends
that she was erroneously denied access to the Service's records which
pertain to her. Counsel for the respondent sought to review these
records in an attempt to determine how the Service became aware of the
respondent's presence in the United States. Counsel argues that the
Service probably received inforthation regarding the respondent from
either the Department of Labor or the Department of State. It appears
that both of these departments had information relating to the respondent because she had submitted an application for a labor certification,
which was subsequently approved and forwarded to the United States
consulate in her home country.
Although counsel's request for discovery was denied by the immigration judge, 1 we shall assume for the purpose of this appeal that counsel's contentions regarding the method by which the Service acquired its
information on the respondent are correct. We therefore assume that
the Service learned of the respondent as a result of some sort of communication from either the Department of Labor or the Department of
State.
Counsel contends that this assumed communication violated the respondent's rights. We initially disagree with counsel's assertion that
' Counsel also made a written request to the Service, which he claims was under the
Freedom of Information Act, for this information. The record does not disclose the
disposition of that written request. The Service's trial attorney did refuse counsel's oral
request for the information during the course of the hearing (Tr. p. 11).
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these departments have no powers relating to the entry of aliens into
the United States. See section 212(a)(14) and section 104, Immigration
and Nationality Act. Furthermore, the Act specifically provides for
liaison between the Service and the Department of State. Section 105
and section 104(b), Immigration and Nationality Act. We know of no
right possessed by the respondent, a nonimmigrant visitor who was and
who remains unlawfully in the United States, which could have been
violated by such a communication.
We find no impropriety in the assumed interagency communication.
Counsel's motion to suppress was properly denied. There was no infringement on any rights possessed by the respondent, even if counsel's
factual contentions are correct. The decision of the immigration judge
was correct.
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.
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