CERVANTES

                                                                     Interim Decision #3277


Interim Decision #3277



          In re Vicente CERVANTES-Torres, Respondent

                            File A71 638 181 - San Diego

                                 Decided June 7, 1996

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

   An alien is not barred from demonstrating continuous physical presence for purposes of section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1254(a)(1) (1994), when he has
made brief, casual, and innocent departures from the United States during the pendency of his
deportation proceedings, and when the Immigration and Naturalization Service has readmitted
him as a returning applicant for temporary resident status under section 210 of the Act, 

 (1988).

FOR RESPONDENT: Ali Golchin, Accredited Representative, San Diego, California

FOR THE IMMIGRATION AND NAURALIZATION SERVICE: William Manoogian,
General Attorney

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG,
MATHON, and GUENDELSBERGER, Board Members.

DUNNE, Vice Chairman:

    In a decision dated April 24, 1995, an Immigration Judge found the
respondent deportable under section 241(a)(2) of the Immigration and
Nationality Act, 

(a)(2) (1994),1 for entering without inspection, and statutorily ineligible for suspension of deportation pursuant to section 244(a) of the Act, 

(a) (1994), but granted him relief in the
form of voluntary departure under section 244(e) of the Act in lieu of deportation. The respondent appealed the Immigration Judge’s decision. The
appeal will be dismissed in part and sustained in part, and the record will be
remanded to the Immigration Court for further proceedings.
  1 This section of the Act has been revised and redesignated as section 241(a)(1)(B) of the

Act, 

(a)(1)(B) (Supp. II 1990), by section 602(a) of the Immigration Act of
1990, 

 Stat. 4978, 5078, but that amendment does not apply to
deportation proceedings for which notice has been provided to the alien before March 1, 1991.
See section 602(d) of the Immigration Act of 1990, 104 Stat. at 5082.

                                              351
Interim Decision #3277


                         I. PROCEDURAL HISTORY
    The record reflects that the respondent is a 26-year-old native and citizen
of Mexico. The Immigration and Naturalization Service alleges that he
entered the United States without inspection. The record indicates that the
respondent applied for temporary resident status in 1988 pursuant to section
210 of the Act, 

 (1988). On January 22, 1991, the Service
issued the Order to Show Cause and Notice of Hearing (Form I-221) upon the
respondent, charging him with being deportable pursuant to section
241(a)(2) of the Act. On September 18, 1991, the Service granted the respondent work authorization and issued him an Employment Authorization card
(Form I-688A). On October 19, 1991, the Immigration Judge granted the
respondent’s request to administratively close his hearing pending the resolution of his temporary residence application. On November 16, 1992, the
Service moved to recalendar the respondent’s proceedings. The Immigration
Judge thereafter sent notice to the respondent on December 2, 1992, that his
hearing was recalendared for March 2, 1993. On March 2, 1993, the respondent appeared without counsel, and the Immigration Judge continued the
case until June 2, 1993, to allow the respondent more time to secure representation. Prior to the respondent’s actual merits hearing, however, he departed
the United States on May 2, 1993, for a 3-day trip to Mexico in order to visit
his ill father.
    The merits hearing regarding the respondent’s deportability and his application for suspension of deportation commenced on May 17, 1994, at which
time the Immigration Judge considered a motion, filed by the respondent on
December 11, 1993, to suppress the Service’s Record of Deportable Alien
(Form I-213). The Immigration Judge ultimately granted the motion and suppressed the Service’s Form I-213 evidence due to the egregious nature of the
respondent’s arrest.2 The parties have not appealed the suppression of the
respondent’s Form I-213, and we find no need to repeat the Immigration
Judge’s detailed description of the respondent’s egregious arrest.

                        II. DECISION AND APPEAL
   Notwithstanding the suppression of the Service’s Form I-213, the Immigration Judge found that the respondent was not a citizen of the United States
and that he entered the United States without inspection. The Immigration
Judge based his finding of alienage on a copy of the respondent’s Form
I-688A, which had been submitted to the court by the respondent in conjunction with his 1991 motion to administratively close his proceedings. He also
found the respondent ineligible for suspension of deportation because he

  2 The Immigration Judge also denied the respondent’s motion to terminate proceedings, and

the respondent’s attorney’s request to withdraw as counsel. The denial of these two motions
has not been appealed.

                                           352
                                                         Interim Decision #3277


determined that the respondent meaningfully interrupted his continuous
physical presence in the United States when he departed the country on May
2, 1993. The respondent appeals both of these findings. We find that while
the Immigration Judge properly found the respondent deportable, we must
remand the record for a reconsideration of the respondent’s suspension
eligibility.

           III. THE RESPONDENT’S DEPORTABILITY
   We first address the respondent’s deportability. The respondent argues
that the Immigration Judge erred in relying on the respondent’s Form I-688A
because this evidence should have been suppressed as a product of the Service’s egregious conduct pursuant to the exclusionary rule. We disagree.
   Initially, we agree with the respondent that the exclusionary rule would
exclude any evidence resulting from his egregious arrest. In INS v.
Lopez-Mendoza, 

 (1984), the United States Supreme Court left
open the possibility that the exclusionary rule might apply in immigration
proceedings involving “egregious violations . . . that might transgress notions
of fundamental fairness.” 

. Thereafter, the United States Court of
Appeals for the Ninth Circuit, in Orhorhaghe v. INS, 

 (9th Cir.
1994), applied the exclusionary rule to preclude the admission of evidence
which the court had determined was the result of egregious government conduct. The respondent’s case arises within the jurisdiction of the Ninth Circuit.
   Irrespective of the applicability of the exclusionary rule, we do not agree
that the respondent’s own voluntary submission of his Form I-688A is a
product of his illegal arrest. Even in the criminal context, in which it is not
required that “egregious” conduct be demonstrated, it is well established that
“(t)he exclusionary rule has no application where the government learned of
the evidence from an independent source.” Segura v. United States, 

 (1984); United States v. Guzman-Bruno, 

 (9th Cir.), cert.
denied, 

 (1994). Here, not only is there independent evidence of
the respondent’s deportability, but the respondent himself willingly and independently provided the evidence. As the Supreme Court observed in INS v.

, the “body” or identity of an alien is never
itself suppressible as a fruit of an unlawful arrest. Hence, once the respondent
has been placed in deportation proceedings, any evidence which is independently obtained may be relied upon, regardless of the alleged illegal arrest.
Such independently obtained evidence may consist of the statements made
by the respondent at the hearing, or be obtained from independent sources.
See Rodriguez-Gonzalez v. INS, 

 (9th Cir. 1981)
(finding that illegal arrest and interrogation do not preclude reliance on voluntary admissions at the deportation hearing); Matter of Carrillo, 

 (BIA 1979) (finding that the voluntary statement given at the hearing
rendered unnecessary the inadmissible testimony obtained in violation of

                                      353
Interim Decision #3277


Fifth Amendment right to remain silent). We find that these precedents
amply support the Immigration Judge’s decision to admit the respondent’s
Form I-688A.3
   The burden of proof in deportation proceedings does not shift to the alien
to show time, place, and manner of entry under section 291 of the Act, 

 (1994), until after the respondent’s alienage has been established by clear, unequivocal, and convincing evidence. Murphy v. INS, 

 (9th Cir. 1995); see also Woodby v. INS, 

 (1966); 

(a) (1995). We find that the respondent tacitly admitted his
alienage when he filed his 1991 motion to administratively close the hearing
to await the outcome of his legalization application. The respondent’s work
authorization form, issued by the Service on September 18, 1991, and properly introduced into evidence, buttresses the Immigration Judge’s conclusion
of the respondent’s alienage. Woodby v. INS, supra. In rebuttal, the respondent has not made a case for citizenship, nor has he denied that he submitted
his Form I-688A to the Immigration Judge in 1991. The respondent cannot
now argue against the propriety of his own 1991 tactical decision. Matter of
Velasquez, 

 (BIA 1986). In sum, we find that the respondent’s deportability has been demonstrated by clear, unequivocal, and convincing evidence. Woodby v. INS, supra.

                       IV. SUSPENSION ELIGIBILITY
   However, we find merit to the respondent’s appellate contentions regarding his suspension eligibility. The Immigration Judge found that the respondent could not demonstrate 7 years of continuous physical presence in the
United States due to his 1993 3-day trip to Mexico, which the respondent
undertook during the pendency of his deportation proceedings. As authority
for this determination, the Immigration Judge cited Matter of
Becerra-Miranda, 

 (BIA 1967), in which we found that the
Service had properly brought exclusion proceedings against a lawful permanent resident who attempted entry into the United States after departing during the pendency of his deportation proceedings. Therein, we held that
almost any departure from the United States during deportation proceedings
could constitute a “meaningful departure” because a

  3 The respondent alternatively argues that the Immigration Judge violated statutory and

regulatory procedure when he entered the Form I-688A document as an exhibit in the
deportation proceedings. The respondent correctly points out that by statute, Congress has
prevented the Immigration Court from reviewing the “files and records” of the respondent’s
legalization application without the respondent’s consent. See section 210(b)(5) of the Act. The
respondent’s voluntarily submission of a copy of his Form I-688A to the Immigration Court in
support of his 1991 motion to administratively close his proceedings indicates his waiver of any
confidentiality requirement, and we therefore do not reach the question whether a Form I-688A
constitutes “files and records” within section 210 of the Act.

                                             354
                                                                     Interim Decision #3277

   reasonable man, being advised that deportation proceedings were pending against him on a
   charge known to him, and that a hearing had been set, . . . would have been put on notice that
   the continuance and legality of his status in the United States was in question. A departure
   from the country, for no matter what purpose, under those circumstances could reasonably
   be assumed to carry with it the possibility that it might change the applicant’s status in the
   United States and his ability to reenter.

; see also Rosenberg v. Fleuti, 

 (1963). We agree with
the Immigration Judge’s general application of Matter of Becerra-Miranda
to the respondent’s facts, but we note that the respondent herein, unlike the
alien in that case, was readmitted upon his return pursuant to section 210 of
the Act. Moreover, the respondent herein is attempting to demonstrate eligibility for suspension of deportation, rather than arguing the propriety of
exclusion proceedings. We find these distinctions significant.

                             A. Section 210 of the Act
   The record indicates that at the time of his May 2, 1993, departure, the
respondent had a pending application for temporary residence pursuant to the
Seasonal Agricultural Worker (“SAW”) provisions set forth at section 210 of
the Act.4 The accompanying regulations, drafted subsequent to our decision
in Matter of Becerra-Miranda, supra, provide that permission to travel
abroad and return to the United States may be granted to such SAW applicants by the Service. 

(b) (1995). In the respondent’s case, the
record indicates that the respondent was indeed inspected upon his return to
the United States and was admitted upon presenting his Form I-688A
Employment Authorization card. We find, under these circumstances, that
the respondent’s 3-day departure from the United States to visit his ill father
may be considered brief, casual, and innocent. This is so regardless of his
pending deportation proceedings.

                         B. Section 244(b)(2) of the Act
   Like section 210 of the Act, section 244 of the Act was amended to include
section 244(b)(2) subsequent to our decision in Matter of Becerra-Miranda,
supra.5 We find the reasonableness test set forth in Bercerra-Miranda inapplicable within the suspension of deportation context. When we addressed
the Fleuti doctrine in Matter of Becerra-Miranda, supra, the Supreme Court
had created the doctrine to benefit lawful permanent residents maintaining
legal status at the time of their departure from the United States. Conversely,
  4 Section 210 was added to the Act by section 302, Act of November 6, 1986, 

 Stat. 3359, 3417.
  5 Subsequent to the release of INS v. Phinpathya, 

 (1984), Congress added

section 244(b)(2) to the Act, which provides that an alien who made a departure is not
considered to have failed to maintain continuous physical presence if the absence from the
country was brief, casual, and innocent. See section 315(b) of the Immigration Reform and
Control Act of 1986, 

 Stat. 3359, 3439-40 (1986).

                                             355
Interim Decision #3277


the brief, casual, and innocent departure language set forth at section
244(b)(2) of the Act presupposes that the alien in question may not maintain
legal status in the United States. Therefore, a reasonable undocumented suspension applicant would know that any departure during the pendency of his
7 years of continuous physical presence in the United States carries “the possibility that it might change [his] status in the United States and his ability to
reenter.” See Matter of Becerra-Miranda, supra, at 363. A stringent application of the reasonableness rationale, in the context of section 244(a) suspension applications, would render section 244(b)(2) largely meaningless.
Moreover, section 244(a)(1) of the Act requires an applicant for suspension
of deportation to demonstrate physical presence in the United States “for a
continuous period of not less than seven years immediately preceding the
date of such application,” rather than from the date of the Service’s issuance
of the Order to Show Cause. (Emphasis added.) We find no indication that
section 244(b)(2) on the other hand, applies only to those suspension applicants who departed the United States prior to the commencement of their
deportation proceedings.

                             V. CONCLUSION
    We find that within the context of section 244(a) of the Act, the Service’s
decision to readmit the respondent as a legally returning applicant for legalization lends support to the respondent’s argument that his departure was
brief, casual, and innocent. The purpose of the respondent’s trip, to visit his
ill father, similarly supports a finding that the trip did not meaningfully interrupt his continuous physical presence in the United States. Lastly, the respondent spent only 3 days in Mexico prior to his readmission to the United
States, and we also find this period of time brief within the meaning of section 244(b)(2). In sum, we find persuasive evidence to support the respondent’s argument that his 1993 3-day departure to Mexico did not
meaningfully interrupt his 7 years of continuous physical presence in the
United States for purposes of establishing eligibility for suspension of deportation. See Castrejon-Garcia v. INS, 

 (9th Cir. 1995). We will
therefore remand the record for further proceedings to determine the respondent’s eligibility for that relief.
    ORDER:           The appeal from the Immigration Judge’s finding of
deportability is dismissed. The appeal from the denial of suspension of
deportation is sustained.
    FURTHER ORDER:                   The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing decision.




                                       356