Interim Decision #2538
MATTER OF ESCOBAR
In Deportation Proceedings
A-21299769
Decided by Board October 18, 1976
Where the evidence establishing deportability was not obtained as a result of respondent's
arrest, a claim of illegal arrest is not relevant to the proceedings; hence, counsel's
motion for pre-hearing discovery seeking evidence that respondent's arrest was illegal,
was properly denied since he failed to establish that the evidence sought was "essential"
within the meaning of 8 C.F.R. 287.4(a)(2).
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)J—Entered without inspection
ON BEHALF OF RESPONDENT: Richard Eiden, Esquire
5932 Stafford Avenue
Huntington Path, California 140255
In a decision dated July 13, 1975, the immigration judge found the
respondent deportable as charged, denied his application for voluntary
departure under section 244(e) of the Immigration and Nationality Act,
and ordered his deportation to Guatemala. The respondent has appealed
from that decision. The appeal will be dismissed.
The respondent, a native and citizen of Guatem ala, has been charged
with deportability as an alien who entered the United States without
inspection under section 241(a)(2) of the Act. At the hearing counsel
submitted a Motion for Pre-Hearing Discovery in which he requested
that the Immigration and Naturalization Service make available and
permit the inspection and copying of records in its possession relating to
the respondent's arrest. The immigration judge denied the motion. The
respondent then admitted the truth of the allegations in the Order to
Show Cause and conceded his deportability.
The immigration judge denied the application for voluntary departure
as a matter of discretion. Based on the respondent's testimony at the
hearing, the immigration judge found that the respondent had gained
entry into the United States with the aid of a professional smuggler. He
concluded that such evidence adversely affects an application for volun-
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Interim Decision #2538
tary departure. Unable to discover any equities in the respondent's
behalf to overcome this adverse factor, he denied the application. We
agree with his conclusion. See Matter of Rojas, Interim Decision 2444
(BIA 1975).
Counsel for the respondent contends that the respondent was denied
his right to due process in these proceedings. He bases his argument on
the fact that the immigration judge denied counsel's motion for discovery. The immigration judge denied the motion on two grounds: (1)
that it appeared to be a belated request for pre-hearing discovery and
(2) that it had not been established that the evidence requested was
essential to the proper resolution of these proceedings.
The type of discovery requested by counsel is covered by regulation.
Under 8 C.F.R. 287.4(a)(2) an immigration judge may issue subpoenas
requiring the attendance of witnesses or the production of documentary
evidence or both subsequent to the commencement of the proceedings.
According to the regulation, "The party applying for a subpoena shall be
required, as a condition precedent to its issuance, to state in writing or
at the proceeding what he expects to prove by such witnesses or
documentary evidence, and to slum affirmatively that he has made
diligent effort without success to produce the same. Upon being
satisfied that a witness will not appear and testify or produce documentary evidence and that his evidence is essential, the . . . special inquiry
officer shall issue a subpoena."
Counsel at the hearing asserted that he expected to show by the
evidence sought that the respondent's arrest was illegal and that, without access to Service records, he would be unable to make such a
showing.
A claim of illegal arrest is not relevant to these proceedings where the
evidence establishing the respondent's deportability was not obtained
as a result of the arrest. See Guzman-Flores v. INS,
(D.C. Cir. 1966). Nor is the
alien's mere physical presence "evidence" which may be suppressed in
the event the arrest was illegal. Guzman-Flores v. INS, supra. The
record in the present ease contains no evidence which was obtained as a
result of the respondent's arrest. We therefore_ conclude that counsel
failed to establish that the evidence sought was "essential" within the
meaning of 8 C.F.R. 287.4(a)(2). Accordingly, the denial of the motion
for discovery was correct.
The appeal will be dismissed.
ORDER: The appeal is dismissed.
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