Interim Decision #2451
MATTER OF LI
In Deportation Proceedings
A-1589247
Decided by Board November 20, 1975
Respondent's deportability under section 241(a)(1) of the Immigration and Nationality Act
as one excludable at entry because previously deported and not granted permission to
reapply is established by clear, convincing and unequivocal evidence where the record
contains a warrant of deportation and a Form 1-294 (Notice of Country to which
Deportation Has • Been Directed and Penalty for Reentry Without Permission) both
issued in 1968 to an alien with the same name as that of respondent, and respondent,
after stating his name, refused to testify, and has offered no evidence to show that he
had been granted the requisite permission to reapply prior to his reentry into this
enuntly
CHARGE:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of
entry--previously deputed —no permission to reapply after
deportation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Robert Foley, Esquire John 1VHdanek
4002 W. Underwood Street Appellate Trial Attorney
Chevy Chase, Maryland 20015
Counsel of record:
Joseph F. O'Neal, Esquire
100 State Street
Boston, Massachusetts 02109
In a decision dated May 14, 1975, the immigration judge found the
respondent deportable as charged, denied his application for voluntary
departure, and ordered his deportation to Hong Kong. The respondent
has appealed from that decision. The appeal will be dismissed.
Deportation proceedings were instituted against the respondent
under section 241(a)(1) of the Immigration and Nationality Act as an
alien who, having been previously deported, entered without permission and thereby became excludable at entry. After stating his name
and indicating that he understood the charge being brought against him,
the respondent refused to testify as to his deportability. Counsel for the
respondent contends that the order of deportation is based upon evi-
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Interim Decision #2451
dente obtained as the result of an illegal interrogation and arrest and,
therefore, is invalid.
Although evidence actually seized during an arrest may be suppressed in a criminal proceeding, the mere fact of an illegal arrest has no
bearing on a subsequent deportation proceeding. U.S. ex rel.
Bilokumsky v. Tod, 263 U.S. 149 (1923); Guzman-Flores v. INS,
496
F.2d 1245 (C.A. 7, 1974); La Franca v. INS,
413 F.2d 686 (C.A. 2,
1969). Inasmuch as we will limit our consideration to that evidence
which was in the possession of the Service prior to the apprehension of
the respondent, we need not discuss the legality of the respondent's
arrest. See Matter of Yau,
14 I. & N. Dec. 630 (BIA 1974).
The record before us contains a Warrant of Deportation and a Form
1-294 (Notice of Country to which Deportation Has Been Directed and
Penalty for Reentry Without Permission), both issued in 1968 to an
alien with the same name as that of the respondent. From the identity of
names and the respondent's failure to show otherwise, we may infer
that these documents relate to the respondent and establish that he was
previously deported from the United States. See Vlisidis v. Holland,
245 F.2d 812 (C.A. 3, 1957); Williams v. Mulcahey,
250 F.2d 127 (C.A.
6, 1957); 'Manor of Chasing, 12 L & N. Der_ 794 (BIA 1971). The
respondent thereafter reentered the United States. The burden is upon
the respondent to show that he had received permission to reenter as
required by section 212(a)(17) of the Act. Solis-Davila v. INS,
456 F.2d
424 (C. A. 5, 1972). The respondent refused to answer when questioned
on this issue at the hearing and has offered no evidence to show that the
requisite permission had been obtained prior to his reentry. We conclude that his deportability has been established by clear, convincing
and unequivocal evidence.
The respondent also refused to answer certain questions pertaining to
his application for voluntary departure, and, as a consequence, the
immigration judge denied the application. We agree with the immigration judge's conclusion that the respondent's silence prevented a full
examination of his statutory eligibility for the relief of voluntary departure. Furthermore, after a complete review of the record, we agree that
the respondent has not shown that he merits a favorable exercise of
discretion. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
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