ROJAS

Interim Decision #2510




                                 MATTER OP ROJAS

                             In Deportation Proceedings
                                        A-21415960

                        Decided by Board August 2, 1976
(1) Burden is on alien to establish a prima facie ease that the Service obtained its evidence
  illegally before. the Service will be required to justify the manner in which it obtained its
  evidence.
(2) Allegation o! unfairness of hearing is not sustained where there is no evidence that
  alien's statements were involuntary and coerced and where the Service advised the
  alien of his rights in compliance with 8 CFR 287.3.
(3) Denial of the privilege of voluntary departure was not an abuse of discretion where
  respondent ac mitted that he had twice entered the United States without inspection
  and also had previously rejected an offer of voluntary departure without the institution
  of deportation proceedings.
CHARGE:
  Order: Act of 1952—Section 241(a)(2) [8 U. S. C. 1251(a)(2))—Entry -without inspection
ON BEHALF OF RESPONDENT:             Gary Silbiger, Esquire
                                     2212 Sunset Boulevard
                                     Los Angeles, CA 90026


   This is an appeal from the November 17, 1975 decision of the immigration judge it which he found the respondent deportable as charged,
denied his 'application for voluntary departure, and ordered him deported to Mexico.
   On appeal counsel for the respondent contends (1) that the immigration judge wrongfully denied his motion to suppressevidence; (2) that
the immigration judge improperly denied the respondent the right of
cross-examination; (3) that deportability was not proven; (4) that the
respondent was not given a fair hearing; and (5) that the immigration
judge's denial of voluntary departure was, arbitrary, capricious, and an
abuse of discretion. We shall answer each contention in turn.
   At the hearing the respondent identified himself, and it was stipulated
that the order to show cause related to him. Thereafter, the respondent
refused to testify on Fifth Amendment grounds and the Immigration
and Naturalization Service was put to its proof.
   The Service introduced a Form 1-213, Report of Deportable Alien,
                                            722
                                                            Interim Decision #2510

and a Form 1-214, Warning as to Rights. Counsel objected to these
 documents saying (1) that they were the fruit of an illegal arrest; (2) that
 they were the result of an involuntary and coerced statement; (3) that
the respondent was not given his Miranda warnings or read his rights;
 (4) that no foundation had been laid as to the authenticity of the documents; (5) that the respondent was denied his right to cross-examination; and (6) that the forms contained hearsay statements.
 Counsel then examined the immigration officer who prepared the documents.
 • The immigration officer did not remember this particular respondent,
but he described his unvarying practice in interviewing arrested aliens
as follows. After picking up Form SW-424 (Exhibit 3) 1, the officer calls
the subject in from the holding room and hands him Form 1-214 to
advise him of his rights. If the subject cannot read or does not understand, the officer himself reads and explains his rights to him. If the
subject requests a lawyer, the officer at this time gives him the opportunity to use the pay telephone and call a lawyer. Otherwise, he signs
the warning of rights himself to show that he afforded the subject those
rights, and then proceeds to fall out the Form 1-213, taking much of the
information from the Form SW-424 and getting the rest from the
subject.
   The respondent testified that he repeatedly asked for an opportunity
to call a lawyer but was told to wait until later. The immigration officer
testified that it was his invariable practice to allow a subject who
requested a lawyer to call one at the time of the request. It was noted on
the Form 1-213 that the respondent had requested a lawyer, but the
notation does not indicate when the request was made.
   The respondent has offered no evidence tending to establish that his
arrest was illegal. It is his burden to establish a prima facie case that the
Service obtained its evidence illegally before the Service will be called
upon to justify the manner in which it obtained its evidence. Matter of
Tsang, 14 L & N. Dec. 294 (BIA 1973); Matter of Wong, 

 (BIA 1971); Matter of Tang, 12 I. & N. Dee. 691 (BIA 1971). The
immigration judge correctly denied the respondent's motion to suppress
evidence and his request to examine the arresting officers.
   The authenticity of the Form 1-213 has been established by the officer
who prepared the form. The form has the same name and the same A
number as are on the order to show cause, which the respondent
conceded related to him. Although counsel insinuated in his questioning
of the Service officer that subjects who insist on speaking to their
attorneys before answering questions are held on higher bond than
    This form has space for information concerning the subject's name; date and place of
birth; nationality; status, place, date, and time of entry; date, place and time questioned;
time and place arrested; and apprehending officers.
                                          723
Interim Decision #2510

others and that the respondent's statement was involuntary and
coerced, the, immigration officer denied this, and there is no evidence
that any form of coercion was used to extract information from the
respondent in this case. Moreover, we are satisfied that the respondent
was advised of his rights in compliance with 8 CFR 287.3. There is no
requirement that Miranda warnings be given. Trial Hernandez v.
                                                          -


INS, 

 (C.A. 9, 1975). We therefore find that deportability has been established by evidence which is clear, unequivocal, and
convincing. We see no way in which the hearing was unfair as alleged by
counsel.
   Regarding the respondent's application for voluntary departure, he
stated that he did not have the funds to depart at his own Rxpense, nor
would he even if he were given a somewhat extended period of time
within which to depart. Accordingly, the immigration judge correctly
found the respondent ineligible for the privilege of voluntary departure.
8 CFR 244.1.
   The respcndent admitted, in his testimony on his application for
voluntary departure, that this was his second entry without inspection.
Furthermore, he rejected an offer of voluntary departure without institution of deportation proceedings. We do not think that denial of the
privilege of voluntary departure in such a case is an abuse of discretion.
Gil v. Del Guercio, 

 (C.A. 9, 1957).
  Accordingly, the following order will be entered:.
  ORDER: The appeal is dismissed.          •




                                   724