Interim Decision #2486
MATTER OF BULOS
In Deportation Proceedings
A-20798198
Decided by Board March, 26, 1976
(1) Search at border of respondent's suitcase carried by U.S. citizen friend, where
respondent was not present, and seizure therefrom of respondent's Argentine passport,
occurring in the course of routine customs border inspection does not exceed the
Service's authority under section 287(c) of the Immigration and Nationality Act.
(2)Respondent identified himself and thereafter stood mute with respect to the charges of
deportability. Argentine passport was issued to a person with the same name as
respondent and contained a photograph mumbling hini_ kaid passport did not contain a
visa permitting entry into the United States or a stamp indicating inspection and entry.
These facts, coupled with respondent's failure to deny the passport was his, constitute
clear, convincing, and =equivocal evidence on which to base a finding of alienage and
deportability as to respondent unde r ocetion 241(2)(2) of the Act.
(3)Under 8 CFR 242.17(d), an application for voluntary departure shall not be held to
constitute a concession of alienage or deportability in any case in which the respondent
does not admit his alienage or deportability. Since respondent's testimony in connection
with his application for voluntary departure simply corroborated what had already been
established by his passport, and his failure to deny that the passportwas his, reliance on
that testimony by immigration judge, while erroneous, was not prejudicial.
CHARGE:
Order: Act of 1952—Section 241(a)(2) U.S.C. 1251(a)(2))—Entered without inspection
ON BEHALF OF RESPONDENT: ON BEHALF OF Sravrcn:
Austin Fragomen, Esquire George Indelicato
Fried, Fragomen & Del Rey, P.C. Appellate Trial Attorney
515 Madison Avenue
New York, New York 10022
This is an appeal from the November 22, 1974 decision of an immigration judge finding the respondent deportable as charged and directing
his deportation to Argentina. The appeal will be dismissed.
After identifying himself by name and stating that he had received a
copy of the order to show cause from the Immigration and Naturalization Service, the respondent refused 'tó testify aS to his deportability,
asserting the privilege against self-incrimination of the Fifth Amend-
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Interim Decision #2486
ment of the United States Constitution, and putting the Service to its
proof of the LIlegations in the order to show cause. The respondent did
testify in support of his application for voluntary departure. The respondent raised several issues and objections during the course of the
deportation proceeding and asserts them now on appeal. We shall respond to each in turn.
To prove that the respondent was an alien the Service introduced an
Argentine passport bearing his name and a photographic likeness of
him. The respondent moved to suppress this evidence as the product of
an illegal search. The passport had been seized by immigration officers
at the Canadian border from a suitcase which was in the possession of a
United States citizen friend and co-worker of the respondent. The
respondent asserted in his motion that the Service had exceeded the
authority of section 287(0 of the Immigration and Nationality Act when
it searched luggage carried by an individual whose United States citizenship was not in question 'and who therefore was not amendable to
exclusion from the United States.
Although the respondent's suitcase was searched and his passport
seized, these personal effects were in the possession of his friend, who
was crossing the United States-Canadian border, and the respondent
himself was not present. The search of the respondent's suitcase was
part of a routine customs border inspection, and it was proper procedure
for the 'customs officer to turn the passport, traveling without its owner,
over to the officers of the Immigration and Naturalization Service at the
border. Furthermore, the respondent's friend made no objection to the
search or to the seizure of the passport, and he testified that if he had
been told of his right to object, he would nevertheless have consented.
Accordingly, we uphold the immigration judge's decision to deny the
motion to suppress the evidence obtained as a result of searching the
respondent's suitcase at the Canadian border.
When he moved to suppress the Service evidence, the respondent
requested than; a separate hearing be held on the motion, or, in the
alternative, that evidence in connection with the motion not be considered in determining the issue of the respondent's deportability. He
cited Simmons. v. United States, 390 U.S. 377 (1968), in support of his
motion. In Simmons the Supreme Court of the United States held that
testimony given by a defendant in criminal proceedings in support of a
motion to suppress evidence on Fourth Amendment grounds could not
thereafter be admitted against him at a trial on the issue of guilt unless
he made no objection. Counsel for the respondent urged that by analogy, evidence in support of a motion to suppress evidence on Fourth
Amendment, grounds should not thereafter be admitted against a respondent in deportation proceedings on the issues of alienage and deportability. .
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Although the immigration judge denied this request, it does not
appear to us that he determined the respondent's alienage or deportability on the basis of testimony given on the motion to suppress, and in
fact, the respondent did not testify on this motion, although he did
present as a witness his United States citizen friend who carried his
suitcase across the border. Under these circumstances, we do not find it
necessary to address the question of whether a separate hearing should
be held on a motion to suppress evidence, or whether testimony given
by a respondent in support of such a motion should or should not
thereafter be admitted over his objection on the issues of alienage and
deportability.
Counsel for the respondent moved to terminate the proceedings alleging that the Service had exceeded its authority under section 287(a)(2) of
the Act when its officers improperly arrested the respondent without a
warrant on November 13, 1974, when they had sufficient information on
which to base an arrest warrant as early as November 6, 1974. That was
when the respondent's passport was discovered and the respondent's
friend was interviewed at the Canadian border. The order to show cause
and warrant of arrest were not issued until November 14, 1974.
It is possible that a warrant could have been obtained prior to the
respondent's arrest. However, assuming, arguend,o, that there was a
defect in the arrest procedure, it is cured if a resulting deportation order
is adequately supported. Bilokumsky v. Tod, 263 U.S. 149 (1923); La
Franca v. INS,
413 F.2d 686, 689 (C.A. 2, 1969); Vlissidis v. Anadel,
262 F.2d 398, 400 (C.A. 7, 1959).
Counsel for the respondent argues that the Service failed to sustain
its burden to prove alienage and deportability by clear, convincing, and
unequivocal evidence, since the finding of alienage and deportability
was based on the presumption contained in section 291 of the Act. That
section places the burden to show the time, place, and manner of entry
into the United States upon the respondent in deportation proceedings,
and provides that if that burden is not sustained, the respondent shall be
presumed to be in the United States in violation of law. Counsel contends that when the charge is entry without inspection, this statutory
provision places "an impermissible burden" upon the respondent when
he asserts the Fifth Amendment privilege against self-incrimination, for
illegal entry can subject a person to criminal penalties. According to
counsel, in such a case the respondent is in a double bind, for if he
testifies as to how he entered the United States, he is vulnerable to
prosecution for illegal entry, but if he asserts his privilege not to testify,
he is vulnerable to prosecution anyway because illegal entry is presumed under section 291. Thus counsel asserts that it is unconstitutional
to require a respondent to prove the time, place, and manner of entry
under section 291 when the charge is entry without inspection and when
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the respondent asserts his Fifth Amendment privilege not to testify.
We lack jurisdiction to pass upon the constitutionality of the statutes
we administer. Matter of Chery and Hassan, 15 I. & N. Dec. 380
(BIA 1975); Matter of L—,
4 I. & N. Dec. 556 (BIA. 1951). Moreover, we
agree with the immigration judge that the Argentine passport issued to
a person with the same name as the respondent and containing a photo-
.graph resembling him, and which does not contain a visa permitting
entry into the United States or a stamp indicating inspection and entry,
coupled with the respondent's presence in the United States and his
failure to de:ay that the passport is his, is clear, convincing, and unequivocal eviience on which to base a finding of alienage and deportability. Therefore, reliance on the section 291 presumption merely provides
corroboration of the respondent's alienage and deportability.
The immigration judge based his finding of alienage and deportability
partly on the respondent's testimony in support of his application for
voluntary departure. Counsel points out that this was improper.
Under 8 CFR 242.17(d) an application for voluntary departure shall
not be held to constitute a concession of alienage or deportability in any
case in which the respondent does not admit his alienage or deportability. In this case the alien steadfastly refused to testify as to alienage or
deportability in the case-in-chief on Fifth Amendment grounds. When
he offered to testify, concerning voluntary departure, he did not intend
to testify as to the manner of his entry into the United States until the
immigration judge indicated that there was no possibility that the
application would be granted unless such testimony were given (Tr. pp.
25-26). Still, counsel for the respondent stated that the respondent's
testimony was to be given "purely for the purposes of our application for
voluntary departure." (Tr. p. 26.) The respondent then stated, among
other things, that he was a native of Argentina and that he had entered
the United States without inspection. The immigration judge relied
partly on this testimony in arriving at the conclusion that the respondent was deportable as charged. He should have disregarded this part of
the respondent's testimony.
There appears to be a misconception concerning the scope of the
testimony of a respondent who is applying for the privilege of voluntary
departure. Such testimony is given for the purpose of ascertaining
whether the respondent is eligible for, and deserves a grant of, that
privilege. To establish eligibility for voluntary departure the respondent need show only that he has been a person of good moral character
for at least five years preceding the application, section 244(e), Immigration and Nationality Act, and that he is willing to depart promptly
from the United States, 8 CPR, 244.1. The testimony of a respondent in
connection with his application for the privilege of voluntary departure
may or may not touch upon alienage and deportability. In any case, such
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Interim Derision #2486
testimony must not be used for the purpose of either establishing or
confirming his alienage or deportability. Nevertheless, since the respondent's testimony was simply corroborative of what had already
been established by his passport and his failure to deny that the
passport was his, we are satisfied that the immigration judge's erroneous reliance on that testimony was not prejudicial.
We find the respondent's contention that the immigration judge
abused his discretion in denying voluntary departure to be without
merit.
In view of the foregoing, we agree with the result of the immigration
judge's decision and shall dismiss the appeal.
ORDER: The appeal is dismissed.
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