MARTINEZ

                                                             Interim Decision Ynitiu




                              MATTER OF MARTINEZ

                            In Deportation Proceedings
                                      A-84691362

                        Decided by Board April 25, 1.979
(1) Charge of entry without inspection and being a trafficker in marihuana was not
   sustained where the immigration judge relied solely upon the transcript of the hearing
   of the alien's brother to provide evidence of deportability and to link the alien to the
   Record of Deportable Alien (Form 1-213) offered into evidence, and where the alien's
   deportability was not in issue at the brother's hearing and the alien was not present to
   defend himself or cross-examine witnesses.
(2) The Service's motion to consolidate the appeals of an alien and his brother, who were
   tried at separate hearings, denied because the alien was denied a fair hearing when,
   over the respondent's objections, the immigration judge accepted into evidence the
   transcript of the brother's hearing at which the alien was not present and had not been
   able to defend himself or cross-examine witnesses.
(I) The record will be remanded fora hearing de novo where the only evidence establishing
   deportability is contained in a transcript of a hearing at which the alien was nut present
   and could not defend himself or cross-examine witnesses.
CHARGE:
  Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1--Excludable at time of entry
                       (section 212(a)(23) of the Act, S U.S.C. 1182(a)(23))—illicit
                       trafficker of marihuana

ON BEHALF OF RESPONDENT:                                ON BEHALF OF SERVICE:
 Joseph J. Rey, Jr., Esquire                             E. 11L Trominski
 100 N. Florence                                         Trial Attorney
  El Paso, Texas 79901

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members


   In a decision dated December 8, 1978, an immigration judge found the
respondent deportable as charged and ordered him deported. The respondent has appealed from this decision. The Service at the same time
also moves to consolidate this appeal with that of the respondent's
brother. The Service's motion will be denied. The record will be remanded to the immigration judge for a hearing de novo.
   The respondent is a 32 -year - old native and citizen of Mexico, and a
lawful permanent resident of the United States. On April 25, 1976, the

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respondent and two other aliens were arrested by Service authorities
near El Paso, Texas, for having entered the United States without
inspection. On October 12, 1978, an Order to Show Cause was issued,
charging the respondent with deportability under section 241(a)(2) of
the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as one who
had entered without inspection, and under section 241(a)(1) of the Act, 8
U.S.C. 1251(a)(1): one excludable at time of entry under section
212(a)(23) of the Act, 8 U.S.C. 1182(a)(23), as a trafficker in marihuana.
At the deportation hearing, with benefit of counsel, the respondent
denied that he had entered without inspection and also denied that he
had transported a suitcase containing marihuana across the Rio Grande
River into the United States. The immigration judge found that the
respondent had entered without inspection and that he was a trafficker
in marihuana, and that these findings were supported by clear, convincing, and unequivocal evidence. He ordered the respondent deported.
   On appeal, the respondent contends that the immigration judge accepted hearsay evidence and that he abused his discretion. He claims
that the only evidence of deportability presented was the record of the
deportation hearing of the respondent's brother. He further contends
that he was deprived of due process because he had no opportunity to be
confronted with the evidence against him and because he was refused
the right of cross-examination and confrontation of witnesses.
  The evidence relied on by the immigration judge WAS in fact enntairwl
in the transcript of the deportation hearing for the respondent's
brother, who was arrested the same night and under the same circumstances as the respondent, and in the Record of Deportable Alien
(Form 1-213) completed the night the respondent was arrested. The
immigration judge found that the testimony given at the hearing of the
respondent's brother was sufficient to prove that the respondent had
crossed the border without inspection, carrying a suitcase of marihuana,
and that the testimony was sufficient to link the respondent to the Form
1-213 offered into evidence at the respondent's hearing.
   The problem with these conclusions is that at the brother's hearing,
the respondent's actions were not in issue. Al.,hough there were numerous references to the respondent, most of them were in the context of
his brother's attempt to defend himself against his own charges, not in
the context of the respondent's defense to the charges brought against
him at his own hearing. We cannot therefore agree that the evidence
developed at the brother's hearing establishes the present respondent's
deportability. He was not there to defend himself. To incorporate that
testimony by reference would be to deprive him of his right to croesexamine the witnesses against him, the objection raised by the respondent at both the hearing and on appeal.
   For reasons implicit in the preceding discussion, we consider the
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Service's motion for consolidation of the appeals of both individuals
inappropriate. The case cited in support of consolidation is Matter of
Taerghodsi, Interim Decision 2596 (BIA 1977). That case concerns the
authority of an immigration judge at the hearing level to consolidate
cases under 8 C.F.R. 242.8(a). This is an entirely different setting.
Regardless of the reason the two respondents were not originally tried
at a joint hearing, it is too late to bring their cases together on appeal.
To do so now would b?, to violate the respondent's right to due process,
as it would be necegsary to assume that he had already had a fair
hearing on the issue of his deportability. Vie have not found this to be
the case.
   For these reasons, then, the Services motion to consolidate the
appeals will be denied and the record will remanded to the immigration judge for a hearing de nova.
   ORDER: The record is remanded to the immigration judge for a
hearing de novo.




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