Interim Decision #2521
MATTER OF DAVILA.
In Deportation Proceedings
A-21419729
Decided by Board August 23, 1976
(1) In order to establish respondent's deportability as an overstay, the Service introduced, over the objections of counsel, a Form 1-213 (Record of Deportable Alien), a
Form 1-214 (Warning as to Rights) and a fingerprint card relating to respondent. The
Form 1-213 bore the same name and Alien Registration Number as the order to show
cause issued respondent; the Form 1-214 was signed by respondent and indicated she
had been advised of her rights and had voluntarily waived them. Na evidence was
adduced at the hearing to indicate that the Forms 1-213 and 1-214 did not relate to
respondent or were in any way incorrect, or that the statements given by respondent
were not given voluntarily_
(2) A respondent in deportation proceedings has no right to refuse to testify except on a
reasonable claim of privilege under the Fifth Amendment. Remaining in this country
longer than permitted is not a criminal offense. Respondent made no showing that there
was any basis for a claim of Fifth Amendment privilege and there was no constitutional
basis for her refusal to testify.
(3) In the absence of any proof that Forms 1-213 and 1-214 relating to respondent contain
information which was incorrect or obtained by coercion or force, these forms are
inherently trustworthy and would be admissible even in court as an exception to the
Hearsay Rule as public records or reports as provided in Rule 803(8) of the Federal
Rules of Evidence.
(4) Since the respondent's deportability was proven at the hearing by untainted evidence
which was clear, convincing, and unequivocal, even assuming a defect in the arrest
procedure, it would be of no consequence in this deportation proceeding.
CHARGE:
Order: Act of 1952 Section 241(a)(2) [8 U.S.C. 1251(a)(2)} Nonimmigrant visitor-
— —
-remained longer
ON BEHALF OF RESPONDENT: Bert D. Greenberg, Esquire
8484 Wilshire Boulevard
Beverly Hills, CA 90211
The respondent appeals from the immigration judge's decision of
October 1, 1975. Theimmigration judge found the respondent deportable as charged, granted her 14 days voluntary departure, and entered
an alternate order providing for the rcIsponclent's deportation to Peru.
The appeal will be dismissed.
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Interim Decision #2521
On appeal, the respondent contends, in effect, that her deportability
has not been established by clear, convincing and unequivocal evidence.
According to her, all the evidence in the record was produced as a result
of her arrest; that arrest was unlawful; and, therefore, the evidence
should have been suppressed.
At the hearing before the immigration judge, the respondent identified herself by name, and counsel stipulated that the order to show
cause related to her. Through counsel, she denied all the allegations in
the order to show cause and her deportability as charged. Thereafter,
on Fourth and Fifth Amendment grounds, she refused to answer any
questions on the issues of alienage and deportability. Her later testimony was confined to a motion to suppress and to her application for
voluntary departure. The immigration judge determined that her refusal to testify on constitutional grounds was unjustified.
In the order to show cause it was charged that the respondent was
subject to deportation as an overstay. Remaining in this country longer
than permitted does not constitute a criminal offense. A respondent in
deportation proceedings has no right to refuse to testify except on a
reasonable claim of privilege under the Fifth Amendment. Otherwise,
the immigration judge may direct the respondent to testify. Chavez-Raya v. INS, 519 F.2d 397 (C.A. 7, 1975); Laqui v. INS,
422 F.2d 807,
809 (C.A. 7, 3.970). Counsel stated in his brief that the respondent had
entered the United States as a visitor. No showing was made that there
was any basis for a claim of. Fifth Amendment privilege. Thus, there
was no constitutional basis for the respondent's refusal to testify.
To establish alienage and deportability the Service introduced, over
the objections of counsel, a Form 1-213, Report of Deportable Alien, a
Form 1-214, Warning as to Rights, and a fingerprint form. The Form
1-213 bears the same name and Alien Registration number as the order
to show cause. It reflects birth in Peru and entry into the United States
on November 30, 1972• as a visitor. The Form 1-214 is signed "Elba
Davila". It warns the alien of her rights, including the right to advice of
counsel; it also reflects that she understood her rights and voluntarily
waived them. The respondent did not deny that these documents related to her, and no offer of proof was made that they are in any way
incorrect, or that the information they contained was not given voluntarily.
In the absence of any proof that the Forms 1-213 and 1-214 contain
information which is incorrect or which was obtained by coercion or
force, we find that these forms are inherently trustworthy and would be
admissible even in court as an exception to the hearsay rule as public
records and reports. Fed. Rules of Evid., Rule 803(8). See Matter of
Swissair "Flight SR 168,"
15 I. & N. Dec. 372 (BIA. 1975).
In view of Lae identity of name and Alien Registration number on the
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Interim Decision #2521
order to show cause and the Form 1-213, the respondent's duty to
testify, and her burden to show time, place, manner of entry into the
United States pursuant to section 291, Immigration and Nationality
Act, we conclude that alienage and deportability were established at the
deportation hearing by untainted evidence which is clear, unequivocal,
and convincing. Thus, because the respondent's deportability was
proved by sufficient evidence at the hearing, even if we were to assume
a defect in the arrest procedure, it would be of no consequence in this
deportation proceeding. U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149
(1923); La Franca v. INS,
413 F.2d 686, 689 (C.A. 2, 1969); Vlissidis v.
Anadell,
262 F.2d 398, 400 (C.A. 7, 1959).
Accordingly, the following order will be entered.
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 14 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.
783
