SANDOVAL

Interim Decision #2725




                              MATTER OF SANDOVAL

                           In Deportation Proceedings

                                      A-20824162

                       Decided by Board August 20, 1979

(1) Exclusionary rule is a "judicially created remedy designed to safeguard Fourth
  Amendment rights generally through its deterrent effect.           United States v. Calandra, 

 (1974).
(2) The United States Supreme Court has never applied the exclusionary rule to exclude
  evidence from purely civil proceedings.
(3) The issue of whether the Fourth Amendment exclusionary rule should apply in
  deportation proceedings must be resolved upon a pragmatic analysis of the purposes
  underlying the rule, the efficacy of the rule as applied in deportation proceedings to
  serve its remedial objectives, the societal costs incurred by the exclusion of reliable
  and probative evidence from deportation proceedings, and the available alternatives
  to deter unlawful conduct by immigration officers.
(4) If an immigration officer violates an individual's Fourth Amendment rights during
  an investigation, the evidence resulting from the violation will be excluded from any
  subsequent criminal prosecution.
(5) The application of the exlusionary rule to deportation proceedings would not offer any
  significant additional disincentive to misconduct on the part of immigration officers.
(6) The application of the exclusionary rule to deportation proceedings would result in
  societal costs, which could be avoided if the more direct and timely alternatives, which
  presently exist, were utilized to curb misconduct by immigration officers.
(7) When the remote likelihood that the exclusion of evidence seized in violation of an
  individual's Fourth Amendment rights would significantly affect the conduct of immigration officers is balanced against the societal costs that could arise from such
  action and the alternatives available to compel respect for constitutional rights,
  neither legal nor policy considerations dictate the exclusion of such evidence from
  deportation proceedings.
(8) Even assuming that the alien's admissions as reflected on the Form 1-213 ("Record of
  Deportable Alien") arose as a result of an unlawful search of her apartment, the Form
  1-213 was admissible at the deportation proceeding and established her deportability
  by clear, convincing and unequivocal evidence.
CHARGE:
  Order Act of 1952 Sec. 241(a)(2) [8 U.S.C. 1251(a)(2))
                       —                                      —   Entry without inspection
  Lodged -   Act of 1952 — See. 241(a)(2) U.S.G. 1251(a)(2)J — In the United States in
                              violation of law having failed to establish the time, place
                              and manner of entry as required under sec. 291, I&N Act 8
                              U.S.C. 1261)

                                             70
                                                        Interim Decision #2725
ON BEHALF OF RESPONDENT:                           ON BEHALF OF SERVICE
  Charles S. Sims, Esquire                           George Indelicato
  Melvin L. Wulf, Esquire                            Appellate Trial Attorney
  American Civil Liberties Union                     Lloyd A. Sherman
  22 Eclat 40th Street                               Trial Attorney
  New York, New York 10016
  Attorneys of Record:
  Leon Rosen, Esquire
  60 East 42nd Street
  New York, New York 10017
  Rhoda K. Dryer, Esquire
  17 Old Colony Drive
  Larchmont, New York 10538
BY:   7Ailhollan, Chairman; Maniatis and Maguire, Board Members. Concurring Opinion,
      Board Member Farb. Dissenting in Part and Concurring in Part Opinion, Board
      Member Appleman
   The respondent appeals from a decision of an immigration judge
dated September 30, 1975, finding her deportable as charged and ordering her deportation to Mexico_ The appeal will be dismissed. We will,
however, grant the respondent voluntary departure under section
244(e) of the Act, 8 U.S.C. 1254(e).
   The respondent is a married 36-year-old native and citizen of Mexico. She entered the United States in March 1975. She and her husband
crossed the border at night and were not inspected by immigration
officers. The couple subsequently made their way to New Rochelle, New
York
  On August 6, 1975, the respondent was taken into custody by immigration officers, who located her during a search of the building in
which she resided. After being, taken to a Service office and advised of
her rights, she made a statement admitting her alienage and unlawful
entry. She also supplied information resulting in the preparation of a
Form 1-213 ("Record of Deportable Alien").
  On that same day, an Order to Show Cause was issued charging the
resp ondent with being deportable under section 241(a)(2) of the Act, 8
U.S.C. 1251(a)(2), as one who entered the United States without
inspection.
   The deportation hearing was convened on August 22, 1975, and was
conducted in several sessions, the last of which was on September 30,
1975. During these proceedings, an additional charge was lodged,
alleging the respondent to also be deportable under section 241(a)(2) as
one who was unlawfully in this country because she failed to establish
the date, manner, and place of her entry as required under section 291
of the Act, 8 U.S.C. 1361.
   By order dated September 30, 1975, the immigration judge found the
resp ondent deportable as charged based on her statement of August 6,

                                        71
Interim Decision 112725
1975, and on an admission made at the hearing that she was an alien
followed by her refusal to answer subsequent questions regarding her
entry.
  Both below and on appeal, the respondent, through counsel, submits
that her statement of August 6, 1975, and the resulting Form
1-213, should have been suppressed as the "fruit of the poisonous
tree"—it being alleged that the search of her apartment (which
resulted in her detention) was in violation of the Fourth Amendment
of the United States Constitution. It is also submitted that the respondent's admission of alienage before the immigration judge
resulted from improper questioning subsequent to her invocation of
her Fifth Amendment privilege against self-incrimination and that
the admission, therefore, should not have been considered. The respondent further states that the immigration judge's conduct of the
hearing evidenced a lack of impartiality and a denial of the respondent's Fifth Amendment due process right to a fair hearing. Finally, it
is argued that the immigration judge improperly denied the respondent the privilege of voluntary departure after he refused to let her
testify for the limited purpose of supporting her application for that
relief.
  As regards the evidence of deportability, we agree that the respondent's admission at the hearing concerning her alienage was elicited
from her after she was improperly denied her Fifth Amendment
privilege against self-incrimination. We will accordingly disregard the
respondent's admission in this regard.' See Tashnizi v. INS, 

 (5 Cir. 1978); Valeros v. INS, 

 (7 Cir. 1967); Estes v.
Potter, 

 (5 Cir. 1950), cert. denied, 

 (1951);
Matter of R—, 

 (BIA 1952). See also section 275 of the
Act, 8 U.S.C. 1325.
  In view of this finding, the sole evidence of record regarding deportability is that which the respondent alleges resulted from an
unlawful search of her dwelling and which she submits should have
been excluded from the proceedings below.
  ' The record suggests that the immigration judge repeatedly questioned the respondent concerning her alienage and directed her to respond to his questioning because she
had not personally and expressly invoked her Fifth Amendment privilege regarding that
matter. See U.S ex ret Bilokumsky v. Tad, 263 US. 149 (1923); Laqui v. INS, 

(7 Cir. 1967); Chavez-Raya v. INS, 

 (7 Cir. 1975). Considering the respondent's statement that she did not "like to answer," counsel's explanation that she was in
fact invoking the Fifth Amendment privilege, and the language barrier arising from a
non-English speaking witness testifying through a translator, we are satisfied that the
privilege had been invoked as to the question of alienage and that the subsequent
directions to respondent to that question were improper. Cf. U.S. ex ret Vaj fewer v.
Commissioner of Immigration, 

,113' (1927) (regarding privilege being "fairly
brought to the attention of the tribunal which must pass upon it").

                                           72
                                                          Interim Decision #2725
  The facts of this case relating to the challenged search were not
clearly developed in the 68-page record. Apparently, however, the
respondent and her husband shared the third floor of a 3-story house
with 2 other men and one of the men's children (some or all of these
persons were related). The ground level apartment in the house
belonged to the building's "caretaker" and was accessible by its own
exterior door. The upper 2 stories were accessible by one outside
entrance. This outside door was always kept locked and each of the
tenants and the caretaker had a key. An inside stairway led from the
second floor to the third floor, where the respondent resided. There was
a door leading to the third floor of the house, which was kept closed, but
which had no lock. There was no testimony as to whether the exterior
of this door reflected that it led to a separate apartment.
  According to the testimony of one of the inhabitants of the third
floor of the house, at 6:00 a.m. on the morning of August 6, 1975, he
received a telephone call warning him that immigration officers were
coming. Approximately 15 minutes later he saw immigration officers
outside the house. He did not hear the house bell ring or hear a knock,
but assumed the caretaker let the officers into the locked building.
Shortly thereafter, two immigration officers opened the door to the
third floor area of the house, entered partially, knocked after they had
stepped inside, and then searched the apartment? The respondent's
witness testified. that no consent was given to search. The Service
concedes that the investigators had no warrant. The immigration
judge did not require either investigator to testify at the hearing.
  The respondent and her husband were subsequently taken into
custody and transported to a Service office, apparently after admitting
their unlawful status. At 2:15 p.m. that same day, after being advised
of her rights, the respondent signed an affidavit, admitting her
alienage and her illegal entry into this country. It is this statement and
the 1-213 prepared in conjunction with it that the respondent urges
must be excluded from evidence as the product of an illegal search. See
Wong Sun v. United States, 

 (1963) (regarding the suppression of verbal statements). Exclusion is argued solely on Fourth
Amendment grounds, as the respondent makes no claim on appeal that
her statement was either involuntary or otherwise inadmissible.
  On these facts, if we assume that evidence unlawfully seized by
immigration officers must be excluded from deportation proceedings,
we would find that the respondent had come forward with sufficient

   On appeal, the respondent states, through counsel (Brief on Appeal, at page 4), that
the 2 investigators, "wielding flashlights, burst through the front door of the apartment." Neither the testimony of the respondent's witness nor her own affidavit, however,
supports this characterization of the agents' entry.

                                          73
Interim Decision #2725

proof to establish a prima facie case of illegality so as to require the
Service either to assume the burden of justifying the manner which it
obtained entry to the respondent's apartment or to establish that the
connection between the search and the resulting statement and Form
1-213 had become sufficiently attenuated to dissipate any "taint." See
Brown v. Illinois, 

 (1975); Nardone v. United States, 

 (1939); Matter of Tang,

 (BIA 1971). See
also United States v. Karathanos, 

, 34 35 (2 Cir. 1976), cert.
                                                                    -


denied, 

 (1976). As that burden was not placed on the
Service and as evidence justifying the search is not in evidence, we are
faced with the issue of whether the exclusionary rule should be held
applicable in deportation proceedings'
  A preliminary question in this regard is whether unlawfully seized
evidence has previously been held excludable from deportation
proceedings. Two early district court decisions' ordered the exclusion
of such evidence and the Supreme Court in dicta in U.S. ex rel.
Bilokumsky v. Tod, 

 (1923) stated that "it could be
assumed that evidence obtained by the Department [of Labor] through
an illegal search and seizure cannot be the basis of a finding in
deportation." A. leading immigration law treatise states that:
    it is undisputed ... that the Fourth Amendment's prohibition against unreasonable
  searches and seizures applies in deportation proceedings, and that evidence obtained
  as the result of an unlawful search cannot be used.'
Thus, one might assume that the issue has long been resolved.
   During the initial 55 years following the Bilokuntsky decision, however, we find no Federal Court decision either holding that evidence
obtained through an unlawful search would be inadmissible in deportation proceedings or in fact excluding any such evidence_ Moreover, the Board has never specifically reached this issue. Many decisions do exist in which the merits of a challenge to a contested search
were addressed,' but over the cited period all reported cases were

   By memorandum, dated October 4, 1978, the General Counsel of the Service states
that the Service position is that the exclusionary rule is inapplicable in civil deportation
proceedings
      parte Jackson, 

 (D. Mont. 1920), appeal dismissed, sub nom. Andrews v.
Jackson, 

 (9 Cir. 1920); United States v. Wong Quong Wong, 

 (D. Vt.
1899).
  5 Gordon and Rosenfield, Immigration Law and Procedure (Revised Edition 1977), at

5-31. No case cited in support of this principle, however, includes a holding in this regard
or resulted in any exclusion of evidence from a deportation proceeding. See Missal v.
INS, 

 (D.C. Cir. 1966); United States v. Montez Hernandez, 

                                                                -


(RD. flat 1968); Roa Rodriguez v. INS, 

 (10 Cir. 1969).
                       -


   See Hocrasilapa v. INS, 

 (9 Cir. 1978); Cordon de Ruano v. INS, 

 (9 Cir. 1977); Aguirre v. INS, 

 (5 Cir. 1977); Ho Chong Tsao v. INS, 

 (5 Cir. 1976), cert. denied, 

 (1977); Vlissidis v. Anadell, 

 (7

                                              74
                                                             Interim Decision #2725
resolved in the Government's favor, thus obviating the need to specifically reach the question now under consideration. This wealth of eases
can be read either as assuming the excludability of unlawfully seized
evidence or as declining to address that fundamental issue where not
essential to do so.1 In either case, however, during this 55-year period
neither the Board nor any Federal Court either ordered the exclusion
of any unlawfully seized evidence or reached the issue of whether such
evidence should in fact be excluded from deportation proceedings.
   Remarkably, not until 1977 do we find a Circuit Court decision
specifically addressing the question. That year, the First Circuit Court
of Appeals in Wong Chung Che v. INS, 

 (1 Cir. 1977), held
that the product of an unlawful search would be inadmissible in
deportation proceedings. That decision, however, was based in large
part on what was viewed as the long history of "assumed" inadmissibility rather than on a detailed analysis of the relative merits of
excluding such evidence from deportation proceedings. Compare Smith
v. Morris, 

 (ED. Pa. 1977), appeal dismissed on other
grounds sub num. Smith v. INS, 

 (8 Cir. 1978) (exclusionary
rule not applicable to deportation proceeding in which decision did not
depend upon proof of specific events, but merely on proof of status).
   Accordingly, as the Board has not previously resolved this issue, as
we find only one contemporary Federal Court decision in which unlawfully seized evidence is specifically held to be excludable, and as we
find no decision in which the appropriateness of applying the rule in
deportation proceedings is analyzed hi any detail, we will address the
question as one of first impression.
   The initial issue is whether relevant Supreme Court precedent
mandates the conclusion that all unlawfully obtained evidence be
excluded from civil deportation proceedings without further inquiry
into the necessity, usefulness, and effect of the exclusion of such
evidence within the context of immigration law. We find this not to be
the case.
  The exclusionary rule is "a judicially created remedy designed to
safeguard Fourth Amendment rights generally through its deterrent

Cir. 1959); Matter of Gonzalez, Interim Decision 2536 (BIA 1976); Matter of Burgos, 

 (BIA 1975); Matter of Scavo,141&N Dec. 826 (BIA 1973); Matter of Tsang,
14 I&N Dec 294 (BIA 1973); Matter of Wong, 

 (1971); Matter of Tang,

 (BIA 1971); Matter ofAu, rim and Lam, 

 (BIA 1969); Matter
ofDoo, 

 (BIA 1968); Matter of Chen, 

 (BIA 1968); Matter of
D—M—, 

 (BIA 1955).
  'This Board has not previously intended to reach the issue decided today and withdraws from any language which may be read as suggesting otherwise. See also Lee v.
INS, No. 77-2265 (3 Cir. filed Jan. 4,1979); Cuevas-Ortega v. INS, No. 77-1630 (9 Cir. filed
Jan. 2. 1979).

                                            75
Interim Decision #2725

effect. . . ." United States v. Calandra, 

 (1974). The
Supreme Court has found that the "need for deterrence and hence the
rationale for excluding evidence are strongest where the Government's
unlawful conduct would result in the imposition of a criminal sanction
on the victim of the search." (Emphasis supplied.) 

.
Thus, in certain criminal proceedings, the Court has assumed the
necessity and efficacy of the "drastic measure" of excluding evidence as
a means of deterring law enforcement officials from violating Fourth
Amendment rights. See United States v. Janis, 

 (1976).
   The Supreme Court, however, has "never ... applied [the exclusionary rule] to exclude evidence from a civil proceeding, federal or state."
United States v. Janis at 447" The Court in Janis did reference the
"seminal" lower court decisions that had applied the exclusionary rule
to civil proceedings involving "intrasovereign" Fourth Amendment
violations, but expressly did not consider that situation. 

.
In the same decision, the Court also noted without adverse comment
that in "some cases the courts have refused to create an exclusionary
rule for either intersovereign or intrasovereign violations in proceedings other than strictly criminal prosecutions."' Thus, it is not entirely
clear that the Court would extend the exclusionary rule to exclude
evidence in any civil proceeding. See Todd Shipyards Corp. v. Secretary
of Labor, 

 (9 Cir. 1978) (questioning applicability of
rule in OSHA proceedings). We are convinced, however, that if the rule
were to be extended to apply in a given civil proceeding, the Court
would only do so after balancing the likelihood of deterring misconduct
by- government officials against the societal costs imposed by rendering
unavailable clearly probative and reliable evidence.°
   Although deportation is a drastic measure and at times "the
equivalent of banishment or exile,"" it has consistently been classified
as a civil rather than a criminal procedure 12 For this reason, every

  s See Janis at 447 n. 17, regarding the exclusion of evidence from 2 proceedings which
were in "substance" and "effect" criminal (i.e., proceedings the subject of which were to
"penalize for the commission of an offense against the law." Plymouth Sedan v. Pennsylvania. 

 (1965)).
    Janis at 456. We note in this regard that all of the numerous reported cases which
have considered the question have held the exclusionary rule inapplicable to probation
revocation proceedings. See United States v. Frederickson, 

 (8 Cir. 1978)
and the cases cited therein. See also U.S. ex rel. Sperling v. Fitzpatrick, 

 (2
Cir. 1970) (rule not applied in parole revocation proceedings).
  " See Stone v. Powell, 

 (1976); United States v. 

(1976); United States v. Calandra, 

 (1974).
  " Deloadillo v. Carmichael, 

 (1947).
  "See Woodtry v. INS, 

 (1966); Harisiades v. Shaughnessy, 

 (1952); Ramirez v. INS, 

 (9 Cir. 1977); LeTourneur v. INS, 

,.1370 (9 Cir. 1976), cert. denied, 

 (1977); Nai Cheng Chen v. INS, 

                                                            Interim Decision #2725

court of appeals that has considered the issue has held that the absence
of Miranda warnings does not render an otherwise voluntary statement inadmissible in a deportation case. See Navia-Duran v. INS, 

 (5 Cir. 1977); Trias-Hernandez v. INS, 

 (9
Cir. 1975); Anila-Gallegos v. INS, 

 (2 Cir. 1975);
Chavez-Ray a v. INS, 

 (7 Cir. 1975). Accordingly,
we find no clear mandate to extend the Fourth Amendment exclusionary rule to apply in deportation proceedings without a further inquiry
into the appropriateness of doing so. Instead, we find that this issue
must be resolved only upon a "pragmatic analysis" of the purposes
underlying the exclusionary rule, the efficacy of the rule as applied in
deportation proceedings to serve its remedial objectives, the societal
costs incurred by the exclusion of reliable and relevant evidence from
deportation proceedings, and the available alternatives to deter unlawful conduct by immigration officers.
  The Supreme Court has held that the prime, if not sole, purpose of
the exclusionary rule is to detet future unlawful police conduct. United
States v. Jaais, supra at 446; United States v. 

 at347. It
is well-settled that the rule is not calculated to "redress the injury into
the privacy of the search victim"' and there would appear little
support for the view that application of the rule is essential for the
purposes of "judicial integrity." Further, the rule's ultimate purpose
is not to punish the Government for the wrongful acts of its agents.
Thus, at a minimum, it would appear essential to a decision to apply
the rule in deportation proceedings that we find that such application
would have some meaningful effect on the future conduct or misconduct of immigration officers."
  We initially note in this regard that immigration officers are
charged with investigating both civil and criminal violations of the

566 (1 an 1976); Avila Gallegos v. INS, 441 F-2d 1245 (5 Cir. 1971), cert. denied, 404 U.S.
                       -


946 (1971). See also Abel v. United States, 

 (1960):
     According to the uniform decisions of this Court, deportation proceedings are not
  subject to the constitutional safeguards for criminal prosecutions. Searches for
  evidence of crime present situations demanding the greatest, not the least, restraint
  upon the Government's intrusion into privacy; although its protection is not limited to
  them, it was at these searches which the Fourth Amendment was primarily directed.
  "Stone v. 

 at 488
  " United States v. 

.
  " Stone v. 

 (1976) (Burger, CI, concurring); United States v. 

.
  ' We limit our inquiry here to the question relating to the exclusion of evidence
unlawfully seized by immigration officers. However, we find significant support in Janis
for the conclusion that evidence unlawfully seized by federal and state police officers in
pursuance of criminal investigations should not be excluded from deportation hearings
(collateral, civil proceedings).

                                           77
Interim Decision #2725
immigration laws. See, for example, sections 242(d) and (e), 252(c),
264(e), 266, and 274-278 of the Act, 8 U.S.C. 1252(d) and (e), 1282(c),
1304(e), 1306, 1324-1328 (criminal violations under Service jurisdiction). The criminal and civil investigations are routinely performed
concurrently because an officer who suspects an individual of being
unlawfully present in the United States will not ordinarily know in
advance whether or not the individual may also have violated a
criminal provision of the immigration laws. If an immigration officer
violates an alien's rights under the Fourth. Amendment during such an
investigation, he knows that evidence resulting from that violation
will be excluded from any subsequent criminal prosecution. See United
States v. Martinez-Fuerte, 

 (1976); United States v.
Briononi-Ponce, 

 (1975); United States v. 

 Thus, if one starts with the premise that the exclusionary rule is
an effective tool of deterrence, the question now before us is whether
any additional significant deterrent effect would be served by ruling
that such evidence should also be excluded from the related civil
deportation proceeding.
  At first appearance, it might seem that the deterrent effect on
immigration officers of excluding unlawfully seized evidence from
deportation proceedings could still be equated to the presumed effect
on law enforcement officials of excluding such evidence from criminal
proceedings. In both instances the evidence would be made unavailable
in the proceedings that fall within the officers' "zone of primary
interest."" The fact that deportation proceedings are civil in nature,
however, creates further distinctions which make this comparison
inapposite.
  First, although there is no convincing empirical evidence that the
exclusionary rule has operated to deter violations of Fourth Amendment rights by law enforcement officials, the Supreme Court has been
willing to apply that "drastic measure" in various criminal settings
based on its "own assumptions of human nature arid the interrelationship of the various components of the law enforcement system."
United States v. 

. This willingness arises in part
because the rationale for excluding evidence is strongest where
criminal sanctions can result and because it was searches for evidence
of crime to which the Fourth Amendment was primarily directed. In
view of the absence of these factors in the civil setting, we are not
convinced that the Court would "assume" the efficacy of the exclusionary rule as a meaningful tool of deterrence if applied in deportation
proceedings.
  Secondly, the civil nature of deportation proceedings creates a clear

 "

.

                                   78
                                                           Interim Decision #2725
impact on the rule's potential effectiveness to deter future misconduct
by immigration officers, even if it were extended so as to require the
exclusion of unlawfully seized evidence in those proceedings. A significant number of deportation cases involve solely the question of a
respondent's present status, as distinguished from criminal proceedings where the issues generally relate to a defendant's past actions. See
Smith v. 

 In fact, in many deportation cases the sole
matters necessary for the Government to establish are the respondent's identity and alienage—at which point the burden shifts to the
respondent to prove the time, place and manner of entry. See section
291 of the Act. It is also true, in view of the civil nature of these
proceedings, that the "body" or identity of an alien (as distinguished
from alienage) is not suppressible as the "fruit of the poisonous tree"
even if it is conceded that an illegal arrest, search, or interrogation
occurred. See Hoons-ilapa v. INS, supra at 738; Wong Chung Chs v. INS,
supra at 168; Katris v. INS, 

 (2 Cir. 1977); Avila-Gallegos v. INS, supra at 667; Guzman-Flores v. INS, 

,
1247 48 (7 Cir. 1974); Huerta Cabrera v. INS, 

, 761 n. 5 (7
      -                              -


Cir. 1972); La Franca v. INS, 

 (2 Cir. 1969). Once an
alien's identity is learned, the Service can entirely avoid triggering the
exclusionary rule in all eases where documents lawfully in the Service's possession evidence unlawful presence.
   Accordingly, even if one presumes the existence of an immigration
officer who would intentionally elect either to violate or not to violate
an individual's Fourth Amendment rights based on whether his
wrongful actions could result in evidence available for use in deportation proceedings, it is not clear that the application of the exclusionary
rule would significantly impact on that officer's judgment because
what is often the most damaging evidence resulting from an illegal
search (the alien's "body") cannot be suppressed." Thus, even if the
exclusionary rule were applied in deportation proceedings, a presumed
unscrupulous immigration officer would not be assured prior to his
unlawful act that he would not be "rewarded" with damaging evidence
which could result in an alien's deportation." This Board is, therefore,
not convinced that the adoption of the exclusionary rule in deportation
proceedings would offer any significant additional deterrent to misconduct to an immigration officer who would otherwise intentionally
  "By this analysis, we of course do not sanction any hypothetical misconduct. It is
solely intended to illustrate the limitations of excluding evidence from deportation
proceedings as a meaningful deterrent to immigration officers.
  "'Under these circumstances, only where the officer knew prior to the search that the
individual was one for whom the Service had no records (e.g., an alien who entered
without inspection) or that the Service records alone could not result in a finding of
deportability, could now even assume that the incentive for misconduct could be affected.

                                           79
Interim Decision #2725
choose to violate an individual's Fourth Amendment rights in hopes of
assisting in the alien's deportation."
  Against this somewhat questionable role as a tool of deterrence, one
must consider the "societal costs" imposed by application of the rule. It
might be presumed that these "costs" would be minimal in view of the
fact that since 1899 we can find only two reported cases in which
unlawfully seized evidence was in fact excluded from deportation
proceedings and only one other case in which the applicability of rule
was specifically addressed. Under such circumstances (even if one
assumes that the Service may have elected not to issue Orders to Show
Cause in some cases for fear that critical evidence might be found
inadmissible), the rule would not appear to have the potential to
significantly impact on this country's immigration laws and policies.
  There are, however, "costs" which arise even when evidence is not
ultimately excluded. Absent the applicability of the exclusionary rule,
questions relating to deportability routinely involve simple factual
allegations and matters of proof.2' When Fourth Amendment issues
are raised at deportation hearings, the result is a diversion of attention
from the main issues which those proceedings were created to resolve,
both in terms of the expertise of the administrative decision makers
and of the structure of the forum to accommodate inquiries into search
and seizure questions. The result frequently seems to be a long, confused record in which the issues are not clearly defined and in which
there is voluminous testimony l but the underlying facts not sufficiently
developed. The ensuing delays and inordinant amount of time spent on
such cases at all levels has an adverse impact on the effective administration of the immigration laws, which to date (in view of the virtual
absence of eases in which evidence has been ultimately excluded) has
in no way been counterbalanced by any apparent productive result.
This burden on the "system" is certainly not a basis in itself to
conclude that such issues are not appropriate in deportation proceedings, but we think this effect is a relevant consideration when balancing competing interests and one which cannot be characterized as
"trivial." See Pranks v. Delaware, 

, 2682 2683 (1978). This
                                                                  -


is particularly true in a proceeding where delay may be the only
"defense" available and where problems already exist with the use of
dilatory tactics. See, e.g., Vasquez-Contreras v. INS, 

 (5 Cir.
  "See, Austin T. Fragoman, Jr., Procedural Aspects of Illegal Aspects of Illegal Search
and Seizure in Deportation Cases, San Diego Law Review, Vol. 14, No. 1, Dec. 1976, at pp.
181-182, regarding impact of exclusionary rule as a deterrent to misconduct by immigration officer under present statutory and rase law .


   "Presently, in the majority of cases, deportability is conceded and the bulk of the
hearing concerns applications for various categories of mandatory or discretionary
relief from deportation.

                                           80
                                                Interim Decision #2725
1978); Der-Rung Choir v. INS, 

 (2 Cir. 1978); Ballenilla-Gonzalez v. INS, 

 (2 Cir. 1976), cert. denied, 

(1976); Medina v. INS, 

 (3 Cir. 1973), cert. denied, 

 (1973).
  Other "societal costs" would arise in any case where the rule operated to preclude the deportation of an alien whose presence in this
country was not lawful. We do not suggest that the "cost" of an alien's
continued unlawful presence is in any way comparable to the "cost" of
 allowing a criminal to go free; the differences are of kind, rather than
 degree. A criminal may be given immunity for past conduct, but is
never licensed to commit future crimes. However, where an alien
whose status is not lawful is saved from deportation through the
operation of the exclusionary rule, the result would be a sanctioning of
a continuing violation of this country's immigration laws.
   As a final consideration in this regard, we think it possible that the
availability of the exclusionary rule in deportation proceedings would
make it less likely that alien§ and their counsel would pursue more
direct and timely approaches to curbing violations of Pourth Amendment rights by immigration officers. It is not unreasonable to assume
that an alien will be primarily concerned with his or her own status,
and only secondarily concerned with the future actions of immigration
officers. Thus, even though the suppression of evidence may be the
most cumbersome and unproven tool of deterrence, it is the approach
most likely to be pursued by an alien whose Fourth Amendment rights
have been violated because of its "windfall" effect.
   This last consideration is relevant only if other alternatives exist
with respect to curbing such misconduct by immigration officers, but
we find that alternatives are available. The most direct initial action
that one can take when there is misconduct by an immigration officer is
a formal complaint to his or her superior; in most instances relating to
unlawful searches, the District Director. See 8 C.F.R. 100.2. See also
Operations Instruction 287.19, March 15, 1978 ("The Service Professional Integrity Program"). There is no evidence suggesting that the
Service is not responsive to complaints regarding employee misconduct. Such an approach provides no "windfall" to the alien, and offers
significant advantages over the exclusionary rule in preventing subsequent misconduct. First, the action is direct and timely. It can follow
immediately after the alleged misconduct and the complaint can be
directed to the official responsible for supervising the day-to-day actions of the officer or officers in question. This approach does not rely
on any presumption (which we think unfounded) that the officer will
tailor his or her conduct based on an administrative or judicial decision that may come months or even years after the contested action,
particularly when it is in no way clear that officers are even aware of
                                   81
Interim Decision #2725
the ultimate disposition of the cases in which there are involved.
Moreover, this, approach has the benefit of forcing supervisory personnel to confront the issues and to clarify policies relating to searches
and seizures. Where misconduct is determined to have occurred, the
impact on the responsible officer can be significant, direct, and incapable of being ignored (e.g., a fine, suspension, or dismissal). Equally
as important, where improper actions are taken by an officer in good
faith, education and training can be substituted for punishment.
  We note in this regard that we are not dealing with a diverse group
of law enforcement agencies responsible to various federal or state
authorities. We are concerned with one federal agency and its officers,
who are responsible to one agency Commissioner, and in turn ultimately responsible to the Attorney General of the United States. We
are not satisfied—and have not been shown—that misconduct by Service officers relating to violations of individuals' Fourth Amendment
rights cannot be adequately addressed within this forum.
   Secondly, where the violations stem from unlawful Service policies
rather than from individual misconduct, such policies regarding
searches can be challenged in the Federal Courts by injunctive or
mandamus actions—actions specifically designed to deter future misdeeds, rather than to punish for past conduct. See Lowy. INS, 

 (9 Cir. 1978); LaDuke v. Castillo, 

 (E.D. Wash.
1978); Marques v. Kiley, 

 (S.D.N.Y. 1977); Illinois
Migrant Council v. Pilliod, 540 F2d 1062 (7 Cir. 1976), modified en bane,

 (7 Cir. 1977). These actions also directly impact on the
perceived problem, rather than relying on any hope that an officer's
conduct will be affected by the result of a subsequent proceeding in
which he is neither a party nor (if we presume malevolence) much
concerned"'
  Finally, civil or criminal actions against the individual officer may
be available. See Bivens v. Six Unknown Narcotics Agents, 

(1971). See also U.S. ex rel. Sperling v. Fitzpatrick, 

(2 Cir. 1970); 18 U.S.C. 2234-2236.
  We recognize the fundamental right of all persons in this country to
privacy free from unreasonable state intrusion. We are sensitive to the
fact that many persons journey to this country—at times at great
personal sacrifice—in order to live in a society in which constitutional
guarantees are meaningfully enforced. We simply are not convinced,
however, that the exclusion of unlawfully seized evidence from deportation proceedings would in fact affect the conduct of any immigration officer who would otherwise malevolently violate individual
rights.
  " United States v. Janis, 

 n. 20.

                                           82
                                                               Interim Decision #2725
   Accordingly, when we balance what we consider to be the remote
likelihood that the exclusion of unlawfully seized evidence from deportation proceedings would significantly affect the conduct of immigration officers with the societal costs that could result from such
action and the alternatives available to compel respect for constitutional rights, we are not satisfied that either legal or policy considerations dictate the exclusion of unlawfully seized evidence from these
proceedings." In view of the, foregoing, we find that the respondent's
statement of August 6,1975, and the Form 1-213 were admissible in the
proceedings below and that deportability under section 241(a)(2) of the
Act was established by clear, convincing and unequivocal evidence.
  Regarding the claim that the immigration judge was biased, disrespectful, and incompetent, we find that the respondent's contentions
are not supported in the record_ We do not agree that alleged errors in
rulings and that which counsel perceives as "silly procedural technicalities" indicate either prejudice or incompetence requiring new
proceedings before a different immigration judge. The record is at
times confused and also suggestive of a strained relationship between
the immigration judge and the respondent's three counsel (particularly on the part of counsel), but we find no manifestation of any "bias" on
the part of the immigration judge as regards the respondent nor any
impermissible restraint on counsel's representation of their client. We
note that the immigration judge made various rulings in the respondent's favor, in fact elicited from the Service the fact that no warrant
had been issued for the search in question, granted frequent recesses
to the respondent to confer with her attorneys, accommodated every
rescheduling request made by the respondent's counsel, and ultimately
adjourned the proceedings and withheld his decision pending submission by the respondent's counsel of a brief in support of their motion.
Our review of the record does not reveal "flagrantly injudicious conduct" (as submitted by counsel) resulting in a denial to the respondent
of a fundamentally fair hearing."
  22   Our decision in this regard, of course, does not affect the inadmissibility of evidence
obtained in violation of a respondent's privilege against self incrimination or of state-
                                                                  -


ments or admissions that are involuntary or coerced. See Tashnizi v. INS, supra; Valeros
v. INS, supra; Navia,Duran v. INS, 

 (1 Cir. 1977); Bong Youn Choy v. Barber,

 (9 Cir_ 1960).
   " It is submitted that the immigration judge was abusive and "shouted" during the
proceedings; however, in response to a complaint in this regard he advised counsel that
he was not raising his voice, but that it was his normal voice level and he wanted counsel
to keep his "voice up." The record in fact reflects that on numerous occasions the
immigration judge found it necessary to instruct the parties, including the Service's
witness, to speak louder. It is also submitted on appeal that the immigration judge
engaged in an improper ex parts conference with the trial attorney, a Service witness
and the Chief Special Inquiry Officer. The record indicates, however, that at the

                                               83
Interim Decision #2725
   Finally, the respondent challenges the denial of voluntary departure. We are satisfied that she should, as a matter of discretion, be
granted that privilege. The parties at the hearing appear to have been
unclear as to the meaning of the regulatory language in 8 C.F.R.
242.17(d). In Matter of ulos, 

 (BIA 1976), decided after
the immigration judge's decision appealed from herein, we clarified
that the testimony given in support of an application for voluntary
departure may not be relied upon to base a finding of deportability.
Considering that there appears little doubt as to the respondent's good
moral character and in view of the understandable uncertainty at the
hearing as to the advisability of answering all questions, we will grant
to the respondent the privilege of voluntary departure.
  The appeal will accordingly be sustained as to the denial of voluntary departure, and dismissed in all other regards.
   ORDERS The appeal is dismissed, except as regards the denial of
voluntary departure.
  FURTHER ORDERS The outstanding order of deportation is
withdrawn, and in lieu of an order of deportation the respondent is
allowed to depart voluntarily, without expense to the Government,
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director and under such
conditions as he may direct. In the event of the respondent's failure so
to depart, the order of deportation will be reinstated.
CONCURRING OPINION: Ralph Farb, Board Member
   The exclusionary rule is not applicable to deportation hearings, nor
should it be.
   Decision writers and commentators who assume its applicability
have failed to discuss it deeply. It is as if it was casually assumed that,
because the Fifth Amendment's self-incrimination clause applies and
is operative to bar the use of involuntary statements, the same result
must follow from violation of the search and seizure clause of the
nearby Fourth Amendment. That the two are not analogous is easily
demonstrated.
  The very words of the Fifth Amendment, prohibiting the use of
enforced self-incriminating statements in criminal trials, underlie the
extension of the bar to civil and administrative proceedings where the

September 9, 1975, hearing the respondent's counsel stated only that it "appeared" to her
that a conversation had occurred (the substance of which she did not know) during the
course of the previous hearing when she and the respondent were conferring outside the
hearing room. The immigration judge indicated that no conversation regarding the
proceedings had occurred and, on this record, we find neither material error nor a need to
pursue the matter.

                                            84
                                                  Interim Decision #2725
Government is the adverse party. Moreover, such statements are suspect as to reliability and probative value.
  By contrast, the Fourth Amendment in itself says nothing about use
of illegally seized evidence. The exclusionary rule is not a personal
constitutional right of an aggrieved party, it has never been interpreted as applying to all types of proceedings and it is not intended to
give redress to the aggrieved party.
  The deportation hearing process has never been linked to formal
rules of evidence. Evidence which would be inadmissible in a courtroom may be received; if it is probative it may be relied upon to
establish a fact. This is consonant with the overall approach to this
type of administrative decision making. Neither illegality in the arrest
nor irregularity in the contents of the initiating document necessarily
stands in the way of a deportability.
  For Fiscal Year 1977, the Immigration and Naturalization Service
reported that it had located 1,042,000 deportable aliens. Of these,
939,000, or 90%, were listed as having entered without inspection. That
means that for the vast majority there was no reason to expect that the
Immigration and Naturalization Service records contained prior
evidence of their identity as aliens. I am not condoning or encouraging
violation of Fourth Amendment rights in the immigration investigator's search for solid proof of identity. If it were done deliberately,
discharge from Government service would be appropriate. I simply
don't see how we can reasonably bar the use of illegally obtained
convincing proof that a person is an alien with no right of presence,
when that may be all that will ever be available to identify him. It
would be inconsistent with the manifest intention of Congress that the
Immigration and Naturalization Service know the location of every
alien in the country.
  The Board's decision attempts to draw a distinction between immigration investigators and other types of law enforcement officers as
to the hypothetical deterrent effect which might result from the imposition of the exclusionary rule on deportation hearings. I will have
none of it. There is no reliable evidence of the effect of the exclusionary
rule on conduct of police officers generally, and it is merely fanciful to
make comparisons based on the supposed deliberate conduct of knowledgeable officers. Most violations of civil rights result either from
ignorance or from excess of zeal. The calculating, unscrupulous officer
belongs to fiction, not reality. Despite my reservation in this one
regard I agree with the decision.




                                    85
Interim Decision #2725

DISSENTING IN PART AND CONCURRING IN PART: Irving A. Applemen,
  Board Member
   I concur only in the result reached in this case by the majority decision, not in its rationale. My divergence with my colleagues is threefold: (1) Even assuming an unlawful arrest, the Service evidence in this
case is admissible and alienage and deportability have been established
by clear and convincing evidence, without any necessity for reaching
the issue of applicability of the exclusionary rule; (2) Assuming any
necessity for examining the arrest, the evidence respecting the claimed
illegality is unsatisfactory in crucial areas, and a reopening of the
proceedings is required before the applicability of the Fourth Amendment can be discussed, to determine if an issue actually exists; (3)
Assuming arguendo the necessity for, and propriety of, reaching the
issue, the exclusionary rule is applicable in deportation proceedings.

                                          I
  The Government's case rests on a Form 1 - 213 (Record of Deportable
Alien), an Affidavit signed by the alien, a Form 1-214 (Advice of
Rights), and the testimony of Investigator DiPlacidi.
  DiPlacidi was responsible for the execution of these documents at
the Immigration and Naturalization Service office. He was not the
arresting officer. His initial action was to fully advise the respondent
of her rights in her own language. The Affidavit (Exhibit 2) was taken
from her in Spanish, written down in English and read back to her in
Spanish. The Form 1-213 (Exhibit 3) was filled out from information
partly known to the investigator and partly furnished by the respondent. The Form 1-214 is part of Exhibit 2 and notes the time of execution
as 2:15 p.m., on the day of the arrest and the place as 20 West
Broadway, New York City.' The Form 1-213 and the affidavit state that
the respondent is a native and national of Mexico who entered the
United States without inspection in March 1975.
  The 1-213 shows that the alien was apprehended at her residence on
August 6, 1975 at 6:30 a.m. during a "field investigation." The Affidavit
recites that it was taken in Spanish by Investigator DiPlacidi, that he
identified himself as an, officer of the United States Immigration and
Naturalization Service and informed her that he desired to take her
sworn statement regarding her illegal entry into the United States. It
contains warnings as to her right to remain silent; that anything she
said might be used against her in a court or in an immigration or
administrative proceeding; that she had the right to talk to a lawyer

  ' This is the location of the New York office of the Immigration and Natualization
Service.

                                         86
                                                Interim Decision #2725

for advice during questioning; that if she could not afford a lawyer one
would, be appointed for her; that she had the right to stop answering
questions at any time.
   According to DiPlacidi, these warnings were given to her in Spanish
and she fully understood them. Included in the preliminary warnings,
is the statement "I am willing to make a statement without anyone
else being present." Her signature appears on both pages. The warnings and statement of rights on the attached 1 214 are also in the
                                                    -


Spanish language, and are equally complete. The form concludes in
substance, "I understand my rights, I am ready to make a declaration
and answer questions. For now I do not desire a lawyer. I understand
and know what I am doing. I have not been made any promises nor
have I been threatened, nor has any pressure or force been used
against me." It too bears her signature.
   DiPlacidi testified that all information reflected in Exhibits 2 and 3
was freely furnished by the alien. No allegations have been made by
the respondent, nor has there been any offer of proof that the information was furnished on other than a completely voluntary basis, without
any coercion, duress, or intimidation. There appears to have been
complete compliance with the Service regulation governing arrest
procedures.
  Nothing in the evidence offered by the respondent in support of her
motion to suppress, indicates that the arrest, even assuming arguendo
that it was illegal, bore a relationship to the information furnished
hours later at the Service office. The allegations in the respondent's
affidavit in support of her motion to suppress relate only to the circumstances surrounding the arrest itself. Her supporting witness testified
only as to what took place at the time of the arrest. We are being asked,
with no evidentiary support whatsoever, to assume that a "taint"
carried over automatically to these documents, notwithstanding their
facial compliance with evidentiary due process requirements (Trias-Hernandez v. INS, 

 (9 Cir. 1975)), the fact that they were
executed at a time and place substantially removed from the scene of
the arrest, and the buttressing testimony of the Service officer that the
                                ,


information was given freely and voluntarily.
  It is appreciated that the bar of the exclusionary rule extends to
verbal evidence as much as to other physical evidence. Under the
holdings in Wong Sun v. United States, 

 (1963), and United
States v. Karathanos, 

 (2 Cir. 1976), the taint of an
original illegal arrest can carry over to such evidence, and render it
inadmissible. Nevertheless, it does not do so in all cases, and in all
circumstances. The rule recognizes the possibility of attenuation.
Clearly, verbal statements made at the time of an illegal arrest would
be inadmissible under Wong Sun. At the same time a voluntary confes-

                                    87
 Interim Decision #2725

 sion made several days after the arrest was held admissible in Wong
 Sun, because the connection between arrest and statement had been
 dissipated. This case falls somewhere in between. United States v.
 

 has an additional element of a government
 promise to alien witnesses, of voluntary departure without prosecution, which helped to carry the original taint over to their testimony.
 NO such element is present in this case, and Karathanos is not
 determinative on the facts here.
   Brown v. Illinois, 

 (1975), places a burden on the Government to show that a later admission was an act of free will unaffected
 by initial Fourth Amendment illegality. Miranda warnings by themselves do not break the causal chain. Brown, however, rejects any
automatic "but for" rule. Whether a confession is the product of a free
 will under Wong 

 must be answered on the facts of each
case. Miranda warnings are an important factor. So too are the
temporal proximity of the arrest and confession, the presence of
intervening circumstances, and the purpose and flagrancy of the official misconduct. Brawn v. Illinois, supra, at 003 and 004.
   Measured against these criteria the Service has met its burden.
There is unrebutted testimony and evidence as to much more than
mere Miranda warnings. The warnings themselves were particularly
full and complete. There was an intervening lapse of time of about
seven hours (as against the less than two hours in Brown) between
arrest and statement. There is no satisfactory showing of flagrant
government misconduct, nor a deliberate Fourth Amendment violation "for investigation" or for "questioning" as was the case in Brown
(See II—below). None of the evidence relied on was obtained at the
time of the arrest.2 Above all, there is the testimony of the Service
officer respecting the completely voluntary nature of the admissions,
to establish their lack of connection with the arrest. Under these
circumstances, under the rule in Wong Sun v. U.S, supra, the admission cannot be rejected out of hand, as the majority has done.
   In summary, the Service has met its burden by a combination of (1)
the recitations of the documents themselves, (2) the testimony of the
investigator, (3) the lapse of time, and (4) the removal to a different
physical location. There is no evidence whatsoever, with respect to
Exhibits 1, 2, and 3, even in the form of an offer of proof, let alone any
testimony, that the respondent was in any way influenced by the
circumstances of the arrest in giving the information in these exhibits.

  2 In this respect the ease differs materially from   Wong Chung Cho, and Wong Pei Tong
v. INS, 

 (1 Cir. 197'7), where the immigration judge had placed heavy reliance
on a Crewman's Landing Permit obtained from the alien himself at the scene of the
arrest.

                                             88
                                                           Interim Decision #2725
Nothing whatsoever counters the substantial government showing
that whatever taint there may have been in the arrest, would have
been purged, and the causal chain, broken. The admissions and exhibits
must be taken at their fame value.'
 Under this view of the ease, it is not necessary to reach the applicability of the exclusionary rule. Even assuming a Fourth Amendment
violation, the exhibits were admissible and the government has met its
burden of establishing aliemage and deportability by clear and convincing evidence, Woodby v. INS, 

 (1966). I would concur in
a grant of the privilege of voluntary departure, the only relief for
which the respondent could be eligible, solely to bring the case, which
has been pending far too long, to a conclusion.
                                     II
  Assuming, arguendo, the necessity of examining the arrest, the
second point of divergence is with respect to the majority finding that
an illegal arrest has been established. As the majority notes (Dec. page
4) the facts relating to the challenged "search" were not clearly developed. The evidence as to a claimed illegal arrest consists of the respondent's affidavit in supiort of her motion to suppress (on advice of
counsel she stood largely mute throughout the hearing) and the testimony of a witness to the arrest. Taking this evidence in its most
favorable light to the respondent, there is a vagueness in crucial
details.
  At about 6:00 a.m., when the respondent's husband was preparing to
go to work, he was alerted. by a telephone call that the Service officers
were on their way or were in the neighborhood. This was some 15
minutes before the investigators arrived at the apartment building in
which the respondent lived with her husband.* We do not know exactly
what he was told on the phone, but there is at least a reasonable
possibility that the officers were pursuing a specific lead directly to the
respondent or her husband or both. This was not developed by either
side, beyond ascertaining that the officers did not have a warrant of
arrest. Again, the street entrance to the apartment building, according
to testimony, was locked. There is evidence that the officers could not
have gained entry into the building unless they secured permission of
the caretaker on the first floor, and established in some manner their
authority to enter. The record is silent in this area.
  The respondent's witness, Jose Sandoval, a nephew of the respondFor what it is worth it will be noted that there is testimony the respondent was not
held in custody "after she was 'brought to the office" (Tr. -23). It raises an intriguing
question as to just when custody ceased.
   At the time of the hearing the husband had departed to Mexico (Tr. 42).
Interim Decision #2725
ent's husband, testified that the officers entered the apartment,
knocked on the wall after entering, and identified themselves. Clearly,
if the officers knocked before entering, this would be inconsistent with
the representations of their entering "quickly without permission or
consent." Yet, if their actions were as depicted, why would they knock
at all? It is unquestioned that there was in fact a knock, raising at least
the likelihood that they may have requested and received permission
before entering a crucial area of inquiry if the arrest is to be the
turning point of the case. The witness at first (Tr. 56) testified that the
door to the respondent's apartment was locked when the immigration
officers arrived. Subsequently (Tr. 59), he stated it was not locked.
Again, this is a crucial point of inquiry.
   No substantial offer of proof was made, or evidence submitted, of
abusive conduct by the Service officers following the arrest. Those
present were questioned as to "legal papers." There was no search of
the person. The search, such as it was, was "under the beds and the
rooms"—apparently for illegal aliens; nothing was taken from the
persons or the premises or from the respondent herself. While these
points are not determinative of the nature of the arrest itself, they do
tend to negate a picture of a coerced and violent entry and search. All
of these considerations, coupled with the obvious possibility for misstatement, confusion, or misunderstanding, create substantial doubts
whether the respondent's allegations as to a Fourth Amendment violation can be taken at their face value.
   The respondent did ask to call the arresting officer to the stand at the
outset of the hearing. No objection was interposed by the Service trial
attorney, but the request was denied by the immigration judge as
premature (Tr. 26). At the time the request was based solely on the
affidavit of the respondent in support of her motion to suppress. She
herself at no time testified in support of the affidavit nor did she
submit herself to examination respecting the circumstances of the
arrest or what took place afterwards. Instead she chose to rely on the
testimony of Jose Sandoval. (Tr. 40). Following the testimony of
Sandoval, both sides rested on the issue of deportability. 5 The request
to subpoena the arresting officer was never renewed, with the result
that the record is left in the dubious state in which we now find it.
  There was other error below. Either through lack of knowledge of
the meaning of 8 C.F.R. 242.17(d), or unwillingness to rely on the
somewhat clouded terminology of that regulation, the respondent not
only refused to testify with respect to alienage and deportability, but

   Respondent testified to some extent in support of her application for voluntary
departure, although here too, refusing to answer many questions on 5th Amendment
grounds.

                                        90
                                                             Interim Decision #2725
gave very limited testimony in support of her application for discretionary relief of voluntary departure. In this the immigration judge
was at least partly to blame in not advising (Tr. 74), that any admissions made in this connection could not be used against her on the issue
of deportability. This Board has since clarified the interpretation of
the regulation. An alien may testify freely in support of an application
for voluntary departure without fear of adverse affect on the case in
chief. Matter of Bulos, Interim Decision 2486 (BIA 1976). See also
Matter of Lam, 

 (BIA 1972); Matter of Tsang,14
I&N dec. 294, 296 (BIA 1973).
   The majority decision has recognized this deficiency in the record
and has solved the problem by granting voluntary departure. I would
concur in that grant, as a practical matter, for the reasons stated in I,
above, and to bring the case to a speedy conclusion. However, if the
proceeding has to be remanded for other reasons, as is the case if the
exclusionary rule issue is to be reached because of a possible Fourth
Amendment violation, then the question of her eligibility and worthiness for this relief should also be developed fully in reopened proceedings, particularly since Exhibit 2 shows that this is her second entry.
In light of Matter of Bulos, supra, respondent is now free to testify
without restraint
  These inadequacies of the record are significant if this case is to be a
tour de force on the legal issue. It has not been satisfactorily shown
that the arrest was illegal. At the same time some groundwork has
been laid. The majority ruling on the inapplicability of the exclusionary rule is, at the very least; premature. That issue involves a complex
consideration of reach and scope of the Fourth Amendment prohibition against unreasonable search and seizure. It can affect countless
cases for years to come. Should this case be made the subject of a
petition for judicial review, as it gives every indication it may, a court
has the right to know if it needs to reach such an issue, or if the case
could be disposed of on other, well established and less controversial
principles. Accordingly, again assuming the dubious necessity for
meeting the issue, the record should be remanded for full development
of the circumstances of the arrest, including the testimony of the
arresting officer and of the respondent should she elect to testify. If, on
remand, a lawful arrest is proved, the issue can then be met with full
knowledge of all of the facts, and an appreciation that it is real rather
than hypothesized.'
  The argument is not convincing that, since the Service has already

  ' This also would have the incidental benefit of facilitating evaluation of the quality of
the Fourth Amendment violation, if any, in accord with the rule in Brown v. Illinois,
supra.

                                            91
Interim Decision #2725

expressed its view that the exclusionary rule has no applicability in
these cases, a remand would serve no useful purpose. The Service has
adopted a similar position as to Miranda warnings, yet they are in fact
required by regulation, appear in Service forms, and are given, even
though not judicially mandated. 8 C.F.R. 287.3; Navies-Duran v. INS,

 (5 Cir_ 1977); Trias-Hernandez v. INS, 

 (9 Cir.
1975). Either for purposes of this case, or for clarification of the record
in anticipation of a court challenge, or in defense of Immigration and
Naturalization Service actions and those of government officers generally, or having in mind possible criminal prosecution in this and in
other cases, or for other reasons not known to this Board, the Service
might still prefer to amplify this record. More importantly, a remand
is required for the sake of the respondent.
   If the respondent's legal position should be examined on judicial
review, it should not meet with a rebuff solely as a result of her not
having an opportunity to present significant evidence_
                                    III
   Lastly, since this case may well reach the courts in its present
posture, it is necessary to state a position on the applicability of the
exclusionary rule in deportation proceedings.
   It is difficult to quarrel with substantial portions of the majority
decision. The applicability of the exclusionary rule in civil proceedings,
generally, does appear to be a viable issue. Weeks v. LT. S., 

(1914); Wong Sun v. U.S., 

 (1963); U.S. v. Janis, 

(1976); cf. Concurring Opinion Chairman Roberts, Matter of Yau, 

 (BIA 1974). Concededly too, it has now been established that the deterrent effect of the rule underlies its purpose and
usefulness. U.S. v. Calandra, 

 (1974); United States v. 

  Some impatience with the application of the exclusionary rule in
deportation proceedings, is also understandable. In case after case,
this Board has been confronted with a mute alien and a claim that
evidence is tainted by a Fourth Amendment violation and hence should
be excluded. Unlike the instant case, frequently no foundation whatsoever has been laid for such a claim. As Board Member Farb noted in
his separate concurring opinion, the claims are often advanced in that
large body of cases involving claimed recent entrants without inspection, as to whom there usually exist no Service records and little
besides the aliens' own admissions to establish alienage and deportability. In many such cases no affirmative defense to .deportability
is offered, no offer of proof of improper Service action is advanced, at
least in correct or substantial form, and a loud outcry is made for

                                    92
                                                        Interim Decision #2725

production of the arresting officer, whether his testimony is shown to
be necessary or not, presumably so that the respondent may lose
himself, the Service, and this Board, in the thickets of obfuscation and
delay thus created.
   To the extent that this sort of irresponsible challenge is a by-product
of holding the exclusionary rule applicable in deportation cases, the
majority decision is correct. However, that a challenge may be
mounted irresponsibly, in itself does not justify rejection of the rule as
a matter of law. Rather, each claim must be met on a case-to-case basis
with patience and firmness, and with due regard to the merits of the
given case. The exclusionary rule protects the long time lawful
permanent resident just as much as the recent entrant without inspection. In any event, it is doubtful that elimination of the exclusionary
rule will cure these claims. Challenges to the admissibility of evidence
can always be counted on allegations of duress, coercion, and lack of
due process. 8 C.F.R. 287.3 bears indigenous seeds for motions to
suppress for failure to follow correct arrest procedures. As long as this
regulation remains in the books—and the Service, thankfully, has
shown no inclination towards removing it—there is always the possibility of a frivolous and purely dilatory challenge to the admissibility
of evidence_
  However, the majority decision glosses over, much too lightly, one
very serious, and perhaps determinative, consideration. It is too late in
the game for a change of Service or Board position regarding the
applicability of the exclusionary rule. The fact is that the Immigration
and Naturalization Service has accepted and applied the rule, as has
this Board, for many years and in countless cases since the dictum in
U.S. ex rel. Bilokumsky v. Tod, 

 (1929) that "evidence
obtained … through an illegal search and seizure cannot be made the
basis of a finding in deportation proceedings." As the majority notes,
the Board Eas often pointed to untainted evidence in cases involving
this issue, as the basis for its decision, and has refused to rely on
evidence which might be flawed by a Fourth Amendment violation.
See, for example, Matter of Cheung, 

 (BIA 1971);
Matter of Wong, 

 (BIA 1971); Matter oftiemblen, 14
l&N Dec. 739 (BIA 1974). The published decisions are replete with
discussion of the admissibility of evidence challenged on the ground of
illegal arrest and search—discussion which would be surplusage if the
Board were not applying and following the exclusionary rule. It is
totally irrelevant that the rule has been followed and applied, sometimes expressly, and sometimes by implication. The rule has been
followed. There is no question whatsoever that this is the case.'

  A partial list of relevant administrative and judicial decisions is set forth in the
Interim Decision #2725

  The rule having been accepted and followed for so many years, the
natural inquiry is—what reason is there for a change now? The
majority decision fails to answer this satisfactorily. The Service has
advanced no argument for a change beyond mere reliance on the civil
nature of deportation proceedings, and advice that, according to a
memorandum of the Associate Attorney General, the Department of
Justice is adopting, generally, the rule which the Service is now urging
upon us. We, of course, are not bound by the enunciation of position of
the Associate Attorney General. See U.S. ex rel Accardi v. Shaughnessy, 

 (

, 

).
   Despite the strident debate by legal scholars over its efficacy, the
exclusionary rule remains the law of the land. To date, nothing in the
precedents has limited its application to criminal eases. On the contrary, its application to some civil proceedings has been recognized in the
federal courts. See, for example, Pizzarello v. U.S., 

 (2 Cir.
1969), cert. denied, 

 (1969)—civil assessment of wagering
taxes; Knoll Associate Inc. v. Federal Trade Commission, 

(7 Cir. 1968) use of stolen documents by Federal Trade Commission
                —


barred in civil action; Powell v. Zuckert, 

 (D.C. Cir. 1966)—
review of plaintiff's discharge from the Air Force; One 1958 Plymouth
Sedan v. Commonwealth of Pa.. 

 (1965) civil proceeding   —


by the state for the forfeiture on an automobile; Rogers v. U.S., 

 (1 Cir. 1938)—civil action to recover customs duties on imported
liquors; U.S. v. Blank, 

 (N.D. Ohio 1966)—civil tax
assessment; Lassoff v. Gray, 

 (W.D. Kentucky 1962)—
civil liability for wagering taxes and assessment. See also U.S. v. 

, 456 and cases there cited. There is also judicial recognition of its use in deportation proceedings, Ex parte Jackson. 263 F.110
(DC Mont. 1920), appeal dismissed 267 F.1022 (9 Cir. 1920); Schenck ex
rel Chow Pook Hong v. Ward, 

 (DC Mass 1938); Wang
Chung Che v. INS, 

 (1 Cir. 1977); (and see also court cases
cited in APPENDIX).
   The rationale of these cases is well expreAed in U.S. v. 

"Where as here there is a correlative civil action open to the Government which imposes a penalty … commensurate with the criminal
sanctions to which as accused, victimized by an illegal search would be
exposed, then we see rio distinguishable difference between the two
forms of punishment which excuses the government from complying
APPENDIX. As is to be expected, the growth in the sophistication of the challenges is
compatible with that of the judicial rulings. While the references to the Fourth Amendment, "tainted evidence," "fruit of the poisoned tree, the exclusions/7 rolo," and formal
Motion to Suppress, appear, as such, primarily in the later decisions, the basic underlying challenge to the admissibility of evidence is the same in all of the cited cases, namely,
that it was procured by a Fourth Amendment violation.

                                             94
                                               Interim Decision #2725
with constitutional mandates when prosecuting their action in a civil
forum." Id, at 182. While the applicability of the rule in all civil
proceedings would be highly questionable—and in fact has been
rejected, U.S. v. Frederickson, 

 (8 Cir. 1978); U.S. ece rel
Sperling v. Fitzpatrick, 

 (2 Cir. 1970), absent special
considerations it would seem that a nexus to a criminal sanction
should reasonably dictate its use. One 1958 Plymouth, Sedan v. Commonwealth of 

  It will be noted that all of the foregoing cases involved intrasovereign violations, a careful distinction drawn in Janis, supra.Their
precedent force, therefore, is in no way impeached by Janis, a decision
based on the blunting of the deterrent effect of the rule by the lack of
 interaction between the federal criminal proceeding, and a state civil
 proceeding. Janis, on the other hand, does emphasize the significance
 of the proximity of the deterred action to the result sought to be
 achieved.
    We are concerned here with one Governmental agency and the
 enforcement of a statute narrowly restricted to aliens. The evidence
 supporting the civil deportation case is frequently the same as that
 which may support a criminal proceeding against the same person.
 See, for example, Section 27E I&N Act. 8 U.S.C. 1325 (Illegal Entry).
 The same arresting officer initiates both proceedings and precipitates
 either or both of the results—i.e., civil or criminal. Even with full
 awareness of the many cases rejecting, in a civil deportation proceeding, the constitutional safeguards applicable generally to criminal
 proceedings, one cannot ignore the severe consequences of deportation
 in some cases, and its analogy to a criminal sanction (Fong Haw Tan v.
Phelan, 

). Despite the circumscription of such rulings as
Almeida-Sanchez v. INS, 

 (1973); Brignoni-Ponce, 

 (1975); and U.S. v. Martinez-Fuerte, 

 (9 Cir. 1975),
Immigration and Naturalization Service officers have wide latitude to
arrest without warrant, both in anticipation of criminal proceedings,
and/or as a precursor to the civil deportation proceedings (Section 287,
Section 235, I&N Act, 8 U.S.C. 1357 and 1225).
   In essence, civil and criminal proceedings walk hand in hand in
intrasovereign wedlock. We have, therefore, the two requisites for use
of the rule in civil proceedings: 1) an intrasovereign relationship, and
2) a correlative criminal sanction. Under the majority position, the
government may have a criminal action against an alien for violation
of section 275 (8 U.S.C. 1325) thrown out because of fatally contaminated evidence, and then turn right around and proceed against him in
a deportation proceeding of equal or greater consequence, relying on
the identical evidence. This is wrong. U.S. v. Blank, One 1958 Plymouth
Sedan v. Commonwealth of 

                                  95
Interim Decision #2725
  Underlying the majority decision is the premise that there is something inherent in a civil deportation proceeding, as against a criminal
proceeding, which makes the application of the rule (a) less necessary,
and (b) less effective. Neither of these assumptions is acceptable.
  There is inconsistency in the majority reasoning that since the
exclusionary rule will continue to deter misconduct because criminal
proceedings may flow from the deportation "arrest," therefore it is not
necessary to apply the rule to the civil proceedings flowing from that
arrest. The deportation itself, in some cases, civil or not, is a far more
serious consequence than the brief imprisonment or negligible fine
customarily meted out for criminal immigration violations, by the
courts. If necessary and effective as a deterrent flowing from inability
to establish the criminal case, it is at least just as necessary as to the
civil one.
   The Fourth Amendment guards the right of the "people" to the
security of their homes, property and persons. It is not limited in its
language either, as to criminal cases or as to citizens.° The exclusionary rule, in turn, links the power Co search and seize with the use of
incriminatory evidence. Its purpose is to insure that an abuse of one
takes the profit out of the acquisition of the other. It prevents the
violation by penalizing the violator. Aborting the consequences of a
violation is only an incidental result, or, better stated, a means to the
primary end of curbing. Fourth Amendment violations.
   So long as an abuse of a power to invade privacy and arrest and
search, might be an integral part. of the gathering of incriminatory
evidence for use in either a civil or criminal proceeding, as is possible
in deportation cases, it would seem to make little difference, so far as
the violation is concerned, if the end result is the use of the evidence in
a civil, or criminal, proceeding, or both. If anything, looking to the need
for the rule, it would seem to follow that the less significant the
objective sought to be obtained by the breach of the constitutional
imperative, the more reprehensible and needful of restraint or deterrence, is the violation. Certainly nothing in the inherent nature of a
civil deportation proceeding, even assuming it has less "importance"
than a criminal ease, supports the conclusion the rule is less necessary.
Indeed, given the possible lack 01 education of the alien, frequent
language difficulties, and unfamiliarity with either the law or his
rights in a strange country, the opposite would seem to be the case.
   "For the inalienable rights of personal security and safety, orderly and due process of
law, are the fundamentals of soda! compact, the basis of organized society, the essence
and justification of government, the foundation, key, and capstones of the Constitution.
They are limited to no man, race, or nation, to no time, place, or occasion, but belong to
man, always, everywhere, and in all circumstance. Every nation demands them for its
people from all other nations." Ex parts Yackson, 263 F.110,113.

                                           96
                                                  Interim Decision #2725

   To evaluate the effectiveness of the rule when applied to deportation
proceedings, it is necessary to appreciate its rationale. The exclusionary rule is premised on the assumption that the likelihood of aborting
a prosecution is a sufficiently significant loss to an officer, to deter him
from violations in the future. The majority, in effect then, is saying
that the civil deportation proceeding is not sufficiently significant, as
compared with a criminal proceeding based on the same facts, to bring
the deterrent effect of the rule into play.
   This too does not withstand examination. On the contrary, if the
evidence is barred in the civil deportation proceedings, the consequences are grave enough that the deterrent effect is equivalent to that
in a criminal proceeding stemming from the same breach of the law.
As for the officer, one possible result of his violation could be, as the
majority notes, that the illegal alien may be forever in a non-deportable status. At the very least, new proceedings, wasteful of manpower
and money, and uncertain in result, might have to be begun. This
should certainly deter a conscientious Service officer from the violation. The conclusion is inevitable that the rationale of the exclusionary
rule compels its application to this proceeding.
   That there is a paucity of cases terminated because of Fourth
Amendment violations, is the soundest proof that the Service has been
able to live more than adequately with the rule and that, as the
majority noted (Dec. 13), the "societal costs" of the application of the
rule have been minimal. Indeed, if one is to look to consequences
(admittedly a questionable basis for decision making), there is probably no better way to facilitate confusion and delay in these cases than
through the litigious weapon the majority has now forged. Where
hitherto the Board has patiently examined each of these claims of
Fourth Amendment violations, their summary rejection as a matter of
law, can only spawn repeated, unexamined, unrebutted, and, undoubtedly, lurid, claims of abuse.
  In the past the Board has demanded an acceptable, nonfrivolous
offer of proof as a minimum. Matter of Geronimo, 13 I&N Dee. 680 (BIA
1971); Matter of Tang, 13 I&N Dee. 691 (BIA 1971); U.S. v. Garcia, 

 (S.D.N.Y. 1967); Matter of Godfrey, 

 (BIA
1971); Matter of Wong, 

 (BIA 1971). It has relied only on
clearly untainted evidence. If an immigration judge failed in this
regard, or misunderstood the position of this Board, the questioned
evidence was either given no weight, rejected outright, or the case was
returned so that the record might be clarified as to just what had
occurred and whether the evidence was tainted or not. See, for example, Matter of Cheung and Matter of Wong, supra. In at least one
instance where the Board failed to clearly set forth its reasons for
accepting apparently questionable evidence, it was quickly called to
                                    97
Interim Decision #2725
account. Wong Chung Che v. INS, 

 (1 Ch. 1977). With this
screening, the rule has worked, and the frivolous claim has been sifted
out, generally without too much trouble. On the other hand, the
occasional nonfrivolous claim, supported by hard facts, has received
the attention that it deserves.
   In summary, the long standing practice of the Board has been to
recognize and apply the exclusionary rule. This has been satisfactory
up to this point, due in part to a screening process which weeds out
frivolous and irresponsible claims, yet permits scrutiny of substantial
challenges. No adequate reason for a change in the Board's position
has been put forth. There is judicial support for the use of exclusionary
rule in civil proceedings, including deportation proceedings.
Precedents dictate its use in civil proceedings involving (1) an intrasovereign relationship and (2) a correlative criminal proceeding.
Deportation is such a proceeding. The reason for the existence of the
rule dictates its application here, both in the aced for the rule and its
possible effectiveness as a deterrent. Lastly, experience has shown an
absence of serious societal costs in the use of the rule in deportation
proceedings.
   For all of the above reasons I am unable to concur in that portion of
the majority decision which holds that the exclusionary rule is inapplicable in civil deportation proceedings.'
   Solely for the reasons set forth under Part I of this separate decision, I would find the alien deportable, and would grant voluntary
departure within 30 days from the date of this order or such further
extension as might be granted by the District Director.

                                   APPENDIX

  Matter of B—R—, I&N Dec. 760 (BIA 1952); Matter of D—M—, 

, 729 (BIA 1950; Matter of R — S — , 

 (A.G. 1956);
Matter of T—, 

 (BIA 1962); Matter of Pang 

 (BIA 1965), aff'd sub nom.; Ah Chiu Pang v. INS, 

(3 Cin 1066), cert. denied, 

; Matter of Chen, 

 (BIA 1968); Matter of Yam, 

 (BIA 1968), aff'd, Yam
Sang Kwai v. INS, 

 (D.C. Cir. 1969), cert. denied, 

; Matter of Doo, 

 (BIA 1968); Matter of Methure, 

 (BIA 1970); Matter of Lane,

 (BIA 1970);

  • There may be alternatives (Dec. P.14ff). They may or may not be effective. Clearly,
their existence does not compel rejection of the present remedy. Employee complaints to
the Service might seem of questionable effectiveness; and the parameters of Bivens v.
Six Unknown Narcotics Agents, 

 (1971), and not yet fully known.

                                          98
                                                 Interim Decision #2725
Matter of Yau, 

 (BIA 1974); Matter of Scavo, 

 (BIA 1973); Matter of Tsang, 

 (BIA 1973);
Matter of Wong, 

 (BIA 1971); Matter of Tang, 

 (BIA 1971); Matter of Au, Yam, and Lam, 

(BIA 1969); aff'd, Au Yi Lau v. INS, 

. (D.C. Cir. 1971), cert.
denied, 

; Matter of Burgos and Burgos-Goeloy, Interim
Decision 2375 (BIA 1975); Matter of Chen, Interim Decision 2440 (BIA
1975), kifi'd Nai Chew Chen v. INS, 

 (1 Cir. 1976); Matter of
.Rojas, Interim Decision 2444 (BIA 1975) Matter of Bulos, Interim
Decision 2486 (BIA 1976); Matter of Rojas, Interim Decision 2510 (BIA
1976); Matter of Davila, Interim Decision 2621 (BIA 1976); Matter of
Mejia, Interim Decision 2527 (BIA 1976); Matter of Gonzalez, Interim
Decision 2536 (BIA 1976); Matter of Escobar, Interim Decision 2538
(BIA 1976); Matter of Castro, Interim Decision 2547 (BIA 1976); Matter
of Baltazar, Interim Decision 2556 (BIA 1971); Matter of Cachiguango
and Torres, Interim Decision 2582 (BIA 19'77); Matter of Taerghodsi,
Interim Decision 2596 (BIA 1977); Matter of King and Yang, Interim
Decision 2647 (BIA 1978).
  See also Klissas v. INS, 

 (D.C. Cir. 1966); Vlissidis v.
Anadell, 

 (7 Cir. 1959); Ho Chong Tsao v. INS, 

(5 Cir. 1976); Aguirre v. INS, 

 (5 Cir. 1977); Cordon de
Rum) v. INS, 

 (9 Cir. 1977); Hconsilapa v. INS, 

 (9 Cir. 1978); Cheung Tin Wong v. INS, 

 (D.C. Cir.
1972); Skit Fuk Cheung v. INS, 

 (8 Cir. 1973); Hv,erta,
Cabrera v. INS, 

 (7 Cir. 1972); Ojeda-Vinales v. INS, 

, 287 -288 (2 Cir. 1975); Illinois Migrant Council v. Pilliod, 

 (7 Cir. 1977); modifying, 

 (7 Cir. 1976); Marquez v.
Kiley, 

 (S.D.N.Y. 1977); Shan Gan Lee v. INS, 

 (3 Cir. 1979).




                                   99