MATTER OF T—
In DEPORTATION Proceedings
A-11465252
Decided by Board May 8, 1962
L eportability—Section 241(a)(4)—Single scheme—Fair hearing—Admissibility
of preliminary statement—Limitation of cross-examination.
(1) Where respondent stood mute, Government has met its burden of establishing by competent evidence mat the two crimes committed did not arise
out of a single scheme of criminal misconduct by introduction of respondent's preliminary statement and court records of his convictions.
(2) Respondent's preliminary statement under oath, which was voluntarily
made, is properly admissible in evidence.
(3) Curtailment of counsel's cross-examination of Government witness when
it became apparent that the line of questioning was directed to the witness'
motives and other circumstances concerned with respondent's arrest did not
render nearing Unralr, Inasmuch as substantial and probsti e evidence of
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deportability had already been introduced into the record.
(4) Alleged atmosphere of tension created by respondent's refusal to testify
or be sworn did not result in unfair hearing.
CuAaos:
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—After entry
convicted of two crimes involving moral turpitude not arising out
of a single sehemp of criminal misconduct, to wit: attempted petit
larceny and attempted petit larceny.
BEFORE THE BOARD
DISCUSSION: The respondent appeals from an order entered by
the special inquiry officer on December 26, 1961, directing his deportation as an alien convicted of two crimes involving moral turpitude
and not arising out of a single scheme of oriminal misconduct, to
wit, attempted petit larceny and attempted petit larceny (8 U.S.C.
1251(a) (4) ). A memorandum of law in support of the appeal urges
procedural and substantive error_
The respondent concedes that he is the person named in the order
to show cause. He stood mute on advice of counsel when questioned
concerning alienage and deportability. Documentary evidence introduced during the course of the hearing establishes that the respondent is a native and citizen of Germany, male, unmarried, 25 years
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of age, who last entered the United States as an immigrant through
the port of New York on September 3, 1958. Exhibits 3, 4, 5 and 7
are certified records of the respondent's conviction on two occasions
in the Court of Special Sessions of New York City for attempted
larceny. The offenses were committed on May 1, 1961, and July 23,
1961, and involved the attempted larceny of property belonging to
one F—.
Counsel maintains that the finding of deportability is not supported by credible, substantial and probative evidence in that the
documents involved and respondent's preliminary statement were
improperly admitted over counsel's objections. Exhibit 6 is a sworn
statement taken from the respondent on November 14, 1961. The respondent agreed to make the statement voluntarily under oath (p. 1
of Exh. 6). 8 CFR 242.14(c) provides, in substance, that a special
inquiry officer may receive in evidence any oral or written statement previously made by the alien and relevant to the issue before
him. We find no error on the part of the special inquiry officer in
admitting in evidence the recorded statement and other documents
material to the issue of deportability. Cf., United States ex rel.
Impasta.to v. O'Rourke, 211 F.2d 609 (C.A. 8, 1954), cert. den.
348
U.S. 827 (1954).
Counsel urges prejudicial error in that the special inquiry officer
arbitrarily curtailed cross-examination of the Government's witness
which sought to develop the illegality of the respondent's arrest
without a warrant. We have carefully reviewed that portion of
the record concerned with the respondent's arrest without a warrant. Counsel was allowed wide latitude in cross-examining the
immigration officer on the subject of whether any evidence was obtained by unlawful search and seizure. Counsel's cross-examination
was curtailed only when it became apparent that his line of questioning was directed to developing whether there was credible testimony on the part of the Government's witness with regard to the
alien's arrest without a warrant. Inasmuch as substantial and probative evidence of deportability had already been introduced into
the record, no error was committed when the special inquiry officer
limited counsel's repeated attempts to cross-examine the Government's witness on his motives and other circumstances concerned
with the respondent's arrest (8 CFR 242.8, and see Kielema v. Crossman,
103 F.2d 292 (C.A. 'fax., 1939)).
Counsel's brief charges tlhat the reaction of the special inquiry
officer to respondent's refusal to testify or be sworn created an
atmosphere of tension and autugunisni which as a matter of due processand policy require a reversal of the order of deportation. A
deportation proceeding is civil rather than criminal and the fact
that an alien claims privilege against self-incrimination does not
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grant him privilege with respect to his identity and the burden of
showing the time, place and manner of his entry into the United
States (8 U.S.C. 1361; cf., Vlieidi8 v. Hollaaa, 150 F. Supp. 678,
aff'd
245 F.2d 812 (C.A. 3, 1957)).
We note that counsel made no attempt during the course of the
hearing to have the special inquiry officer disqualify himself. Under
the circumstances, it is not proper for him to raise this issue on
appeal. The fact that the record created amounts to 112 pages, notwithstanding the fact that the respondent stood mute, is not persuasive of a finding that the respondent was denied due process of law
by reason of the special inquiry officer's antagonism or hostility.
Counsel urges error in the finding that the two crimes committed
by the respondent did not arise out of a single scheme of criminal
misconduct. He argues that under precedent court decisions 1 the
burden is upon the Government to establish that the offenses did not
arise out of a single scheme of criminal misconduct and that the
Government has made no attempt to meet this burden. Counsel cites
the case of Woad v. Hay (supra 1 ) as authority for his argument.
We agree with counsel that the burden is upon the Government to
establish by competent evidence that the two crimes did not arise
out of a single scheme of criminal misconduct. Inasmuch as the respondent stood mute, this burden was met by the best evidence
available, namely, respondent's preliminary statement and the court
records of his conviction.
The case before us is distinguishable from the Woad case, cited by
counsel (supra 1 ). The only evidence on the subject of single scheme
in the Wood case was the alien's testimony that there was an agreement to participate in two robberies which were subsequently
committed. The Government made no attempt to impeach the alien's
testimony.
Here the alien has stood mute. Apparently the court recognized
that such a situation could arise because it said:
It may he that in some cases the proof of the commission of two crimes
may be the very nature of the crimes themselves, or the time or circumstances
of their commission, be reasonable, substantial and probative evidence that
they did not arise out of a single scheme of criminal misconduct , (Wood v.
Hop, supra, at page 831)
The respondent's testimony at pages 4 and 5 of his statement
(Exh. 6) is affirmative evidence that two separate and distinct, crimes
were committed by the respondent and that the crimes were not the
end result of a preconceived plan. The special inquiry officer has
fully evaluated this evidence and finds that deportability is established. We find no error on the part of the special inquiry officer
1 Wood v. Huy, 200 F.2d 825 (CA. 0, 1959) ; Khoury v. Hoy (unreported
S.D. Cal., 1959) ; Zito v. Moutal,
174 F. Supp. 531 (D.C. 111., 1959) ; Jeronirti
v. Muff,
157 F. Supp. 808 (S.D. N.Y., 1957).
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We find no basis for reversing the special inquiry officer's order
and remanding the case for a hearing de novo. The respondent was
represented by counsel of his own choosing. He was given a full
opportunity to testify in his own behalf. He declined this opportunity and made no effort to rebut the evidence introduced by the
Government. The opportunity thus afforded him and the proof
offered by the Government comply in all respects with the statutory
requirements set forth in 8 U.S.C. 1252(b). The respondent's failure
to present evidence in his own behalf and to rebut that proffered by
the Government does not render the hearing unfair or deprive him of
due process in any respect. The conclusion of the special inquiry
officer is supported by reasonable, substantial and probative evidence.
The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
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