A-9776745
Decided by the Board, June 24, 1953
Evidence: Privilege against self — incrimination. — Fair hearing.
Where an alien has once given testimony voluntarily, having been warned that such testimony might be used against him, it may afterward be used against him in deportation proceedings and he may not claim the privilege against self-incrimination as to such testimony.
CHARGES:
Warrant: Act of 1924 — No immigration visa. Act of 1917 — Stowaway. Act of 1917 — Entered without inspection. Act of 1929 — Arrested and deported — No permission to reapply.
Lodged: None.
BEFORE THE BOARD
Discussion: The Assistant Commissioner has found respondent to be deportable on all four charges stated in the warrant of arrest and ordered that he be deported from the United States on those charges. Respondent appealed to us from that order.
Respondent is a native and citizen of Portugal, 40 years of age, married, male, who last entered the United States on December 19, 1949, as a stowaway. The record shows that he entered the United States to live and to work. He is clearly deportable on the first three grounds stated in the warrant of arrest.
Respondent first entered the United States as a seaman on March 8, 1947. He stated that it was his intention at the time of entry to desert his vessel and to remain permanently in the United States. In connection with that proceeding his appeal came before this Board on December 4, 1947, and again on a motion on April 12, 1948. There was no merit in his request for discretionary relief at that time and no legal ground for permitting him to remain here. We dismissed both the appeal and the later motion, and respondent was deported from the United States on May 4, 1948. He has never received permission to reapply for admission. He is deportable on the fourth charge stated in the warrant of arrest.
Respondent was represented by counsel during the deportation hearing. Counsel was asked if he had any evidence to submit at that hearing or any reason to offer as to why respondent should not be deported from the United States. He stated that he had nothing to submit and that he did not wish to question the respondent further.
During the deportation hearing counsel repeatedly objected to the questions of the hearing officer, requesting that the witness be informed of his right not to answer the questions on the ground that they might incriminate him. The objections were overruled. Counsel's appeal rests largely on the exceptions taken to the hearing officer's rulings with regard to the respondent's alleged right against self-incrimination.
Counsel has raised this same objection at length in other proceedings before this Board, specifically, Matter of D---- R----, A-9764935, August 1, 1952, 4 IN Dec. 720; and Matter of M----, (A-9777013) September 19, 1952. We discussed the subject of self-incrimination in our decisions in those cases. We stated in those cases that where a witness has once given testimony voluntarily it may afterwards be used against him in the same deportation proceedings, and he may not claim the privilege of self-incrimination as to such testimony.
In Schoeps v. Carmichael, 177 F. (2d) 391 (C.A. 9, 1949) the court held a recorded statement of an alien made under oath was admissible under the regulation, a regulation which the court referred to as "sensible." The court declared also that the claim of privilege against self-incrimination is personal to the alien and not to be claimed for him by counsel, citing many cases. The same sort of preliminary statement involved in the Schoeps case and found there to be admissible, is present in the proceeding now before us. On February 16, 1950, respondent made a statement before an immigration inspector, and that statement was introduced in this record as exhibit 2. Respondent was furnished with an interpreter, he was sworn, and he was advised that his statement should be voluntary and that any information supplied by him might be used against him. He then proceeded to give full information as to his name, place of birth, citizenship, the mode and time of his entry into the United States, his intention at the time of entry, and also information as to his previous arrests and deportation. When the hearing officer propounded to him these same questions at his immigration hearing, counsel objected to each in turn, on the ground that it was violative of respondent's constitutional privileges. This is exactly the situation described in the Schoeps case, where the court said:
Furthermore, the privilege against incriminating himself * * * was clearly waived when appellant made the claimed incriminatory statements to the investigating inspector voluntarily and under oath after he was carefully advised by the inspector that they might be used in subsequent deportation or criminal proceedings against him.
In U.S. ex rel. Catalano v. Shaughnessy, 197 F. (2d) 65 (C.A. 2, 1952), the court said that failure to warn the alien that his statements might be used against him did not violate due process, because he had already pleaded guilty to entering the country without permission after being once deported, and therefore a refusal to answer at the hearing would not have affected the conclusion that he was deportable. The record in the present case showed that respondent was deportable — that he had been previously deported from the United States and that he had already admitted entering the country illegally — so the proceedings at the hearing to which counsel has objected lead, in no way, to a denial of justice. As the court said in Alves v. Shaughnessy, 107 F. Sup. 443 (D.C.N.Y., 1952), a case in which counsel also represented the alien, "Upon analysis, it is clear that the instant case involves no genuine issue as to any material facts."
Counsel asks voluntary departure for respondent, in the event that he is not eligible for any other form of discretionary relief, pointing out that the hearing officer found respondent to be technically eligible for the privilege of voluntary departure. The fact that respondent is technically eligible does not entitle him to voluntary departure. As a matter of policy we do not grant voluntary departure to an alien who enters the United States as a stowaway, unless there are other appealing factors in the case. This alien has no citizen or legally resident alien dependents in the United States. He has been previously deported and has put the United States Government to the expense of apprehension on several occasions, with repeated hearings and appeals. He has only brief periods of residence in the United States. Reasonable enforcement of the immigration statutes and regulations would be impossible if voluntary departure were granted in cases such as this. This record contains no appealing factors whatever.
Order: It is ordered that the appeal be dismissed.