Interim Decision #2536
MATTER OF GONZALEZ
In Deportation Proceedings
A-20997563
Decided by Board October .12, 1976
(1) In this proceeding respondent refused to testify except to give his name, and the
Service introduced a Form 1-130 (Petition to Classify Status of Alien Relative) which
had been submitted on behalf of respondent by his wife. The contents of the form and
accompanying documents were read into the record and the respondent's wife was
called to testify.
(2) The application and documents were admissible because the name thereon was identical with the name of the respondent. Where respondent stood mute at hearing, it was
proper for the immigration judge to permit the wife's testimony on the Form 1-130
application because the wife merely identified the 1-130 application and because the
application and documents may stand alone as evidence even without such identification.
(a) Argument of respondent's counsel that the hearings were improper because the arrest
was illegal and that the evidence adduced at hearing should be suppressed is rejected
where the only evidence introduced was the Form 1-130 and documents submitted
voluntarily prior to respondent's arrest, and the wife's Identifying testimony. Documents in the prior possession of the Service cannot be tainted by any illegality in a
subsequent arrest.
(4) While the burden to establish alienage to establish deportation proceedings is upon the
Government, a person born abroad is presumed to be an alien and must go forward with
the evidence to establish United States citizenship or a legal right to be in the United
States under section 291 of the Immigration and Nationality Act. By his silence,
respondent failed to meet his burden to show the manner of his entry and the presumption arises that he is in the United States in violation of law. Absent evidence to negate
that presumption, the alien is deemed to be in this country in violation of law and the
burden of proof requirements to show deportability by clear, convincing and unequivocal evidence are met.
CEARGE:
Orden Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entered without inspection
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Laurier B. McDonald, Esquire Richard M. Casillas, Esquire
P. O. Drawer 54 Trial Attorney
Edinburg, Texas 78539
This is an appeal from the immigration judge's decision of April 18,
1075. The immigration judge refused to terminate the proceedings and
found the respondent deportable_ The appeal will be dismissed.
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Interim Decision #2536
The record relates to a married male alien, a native and citizen of
Mexico, who is 24 years of age. He is charged with having entered the
United States without inspection near Hidalgo, Texas, on or about
February 15, 1975.
The respondent moved to quash the Order to Show Cause on the basis
that the respondent was arrested without a warrant and that therefore
the proceedings are illegal. His motion was denied. He also requested
that certain witnesses be subpoenaed. His request for subpoenas was
denied.
The respondent refused to testify at the hearing, except to give his
name; he cited the privilege against self-incrimination under the Fifth
Amendment to the United States Constitution. The Service introduced
a Form 1-130 [Petition to Classify Status of Alien Relative] which had
been submitted on behalf of the respondent by his wife. The contents of
the form and accompanying documents were read into the record, and
the respondent's wife was called to testify. The respondent's birth
certificate, which was one of the documents, indicated birth in Mexico.
Counsel objected to the wife's testimony on the ground that spouses
cannot be compelled to testify against one another. The objection was
overruled. In her testimony, the respondent's wife merely identified the
1-130. The Service rested. The immigration judge, relying upon section
291, found that the respondent was deportable. Section 291 provides
that
In any deportation proceeding tinder chapter 5 against any person, the burden of proof
shall be upon such person to show the time, place and manner of his entry into the
United States . . . If such burden of proof is not sustained, such person shall be
presumed to be in the United States in violation of law.
Upon appeal, counsel renews his arguments raised below. He claims
that the proceedings were defective and should have been terminated,
because, he claims, the respondent was arrested -without a warrant.
Exhibit 1 is labelled: Order to Show Cause and Warrant for Arrest of
Alien. There is nothing in the record, and nothing has been offered,
which supports counsel's assertion that a warrant was not obtained
prior to the arrest of the respondent.
Complaint is made that subpoenas were not granted for various
witnesses. One of the individuals for whom a subpoena was sought was
present in the anteroom and was not called as a witness by either side.
The immigration judge ruled correctly that no subpoena was necessary
for that witness. There is no showing that the testimony of other
individuals for whom subpoenas were sought was necessary either.
Counsel stated that he wished to question them concerning whether the
respondent was arrested without a warrant. He does not claim that
their testimony would support his assertion that no warrant was ob-
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Interim Decision #2536
tamed. The immigration judge properly refused counsel's request for
subpoenas. It appears that counsel wished to go on a fishing expedition
in his questioning; there is no showing that the testimony of the witnesses requested was necessary in these proceedings.
One who raises a question concerning- the legality of the evidence
must come forward with proof establishing a prima facie case before the
Service will be called upon to assume the burden of justifying the
manner in which it obtained its evidence, Matter of Tang, 13 I. & N. 691
(BIA 1971). Statements in a motion for suppression must be specific and
detailed, based on personal knowledge; they must set forth a prima fade
ease, Matter of Wong, 13 I. & N. 822 (BIA 1971). Here, no statement
has been presented which establishes a prima facie case of any illegality.
Counsel has not actually moved to suppress evidence acquired in
connection with the arrest. He admitted at the hearing that the evidence in this record was not obtained as a result of the arrest, (Tr. 27 &
28). He argues, rather, that the hearings were improper, because the
arrest was illegal and that, therefore, all evidence adduced at the hearing
should be suppressed. However, evidence in the prior possession of the
Service cannot be said to be tainted by any illegality connected with a
subsequent arrest, Matter of Y au, Interim Decision 2272 (BIA 1974),
Matter of Wong, supra. In order to apply the exclusionary rule, there
must be a claim that tainted evidence was, or would be, introduced into
the record. Here the sole evidence introduced was the Form I--120 and
the testimony of the respondent's wife identifying that form. The 1-130
had been voluntarily submitted by the parties prior to the respondent's
arrest. It was not in any way tainted by any illegality concerning the
arrest.
Counsel's contention that the proceedings should be terminated because they are tainted by the claimed illegal arrest is also without merit.
Even if an alien's arrest were technically defective, subsequent deportation proceedings, otherwise lawful, would not thereby be vitiated,
U.S. ex rel. Bilokumsky v. Tad, 263 U.S. 149 (1923); Avila-Gallegos v.
INS,
525 F.2d 666 (2 Cir. 1975); Guzman-Flores v_ INS,
496 F.2d 1245 (7
Cir. 1974); Huerta-Cabrera v. INS, 466 F.. 2d 759 (7 Cir. 1972); La Franca
- v. INS, 413 F.2d 686 (2 Gin 1969); Matter of Li Interim Decision 2451
(BIA 1975).
Counsel argues that the wife's testimony should have been excluded
because it violates the husband-wife privilege, and that the failure to
exclude it rendered the proceedings defective. The wife, by her testimony, did no more than to authenticate her own application. Her
testimony is not essential, in any event, and it may be entirely disregarded, for the Form 1-130 and accompanying documents may stand
alone as evidence. Even without identification by the maker, the application and accompanying documents are admissible, for there is identity
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Interim Decision #2536
of name with the name of the respondent, Vlisidis v. Holland, 245 F.2d
812 (3 Cir. 1957).
The birth certificate accompanying the Form 1-130 indicates that the
respondent was born abroad. One born abroad is presumed to be an
alien. U.S. ex rel. Rongetti v. Neelly, 207 F.2d 281-284 (7 Cir. 1953);
Matter of Pvnco, Interim Decision 2826 (BIA 1974); Matter of
Tijerina-Villarreal,
13 I. & N. Dec. 327 (BIA 1969); Matter of A—M—,
7 I. &. N. Dec. 332 (BIA 1956). While the burden to establish alienage in
a deportation proceeding is upon the Government, a person born abroad
is presumed to be an alien and must go forward with the evidence to
establish any claim to United States citizenship, Matter of Tijerina-Villarreal, supra.
The respondent has not advanced a claim to United States citizenship.
He has not claimed any legal right to be in the United States. Once it is
established that the subject of a deportation proceeding is an alien,
section 291 of the Act requires that person to justify his presence in the
United States, see AU v. Haff, 114 F.2d 369 (9 Cir. 1940); Bhagat Singh
v. McGrath,
104 F.2d 122 (9 Cir. 1939), cert. denied Bhagat Singh v.
Haff,
308 U.S. 629 (1940); Vlisidis v. Holland,
150 F. Supp. 678 (ED Pa
1957); Matter of Fereira, Interim Decision 2251 (BIA 1973). The respondent by his silence cannot avoid the burden by resting upon the
Fifth Amendment, De Lucia v. Flagg,
297 F.2d 58 (7 Cir. 1962), cert.
denied
369 U.S. 837 (1962) Vlisidis v. Holland, supra. [245 F.2t1];
Gonsalves-Rosa v. Shaughnessy,
151 F. Supp. 906 (SD NY 1957);
Viisdis v. Holland, supra. [150 F. Supp.]. He has not been prejudiced in
any way because of his invocation of the Fifth Amendment. The fact of
alienage was established separately. No inference need be drawn from
his invocation of that privilege. We find simply that by his silence he has
not met his burden to show the manner of his entry, and that the
presumption of section 291—that he is in the United States in violation of
law—arises. In the absence of any evidence to negate the presumption,
the alien is deemed to be here in violation of law, and the burden of proof
requirements set forth in'VVoodby v. INS,
285 U.S. 276 (1966) have been
met, see Matter of Fereira, supra.
ORDER: The appeal is dismissed.
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