A-9764935
Decided by Board August 1, 1952
Evidence: Privilege of self-incrimination — Fair hearing.
(1) An alien in a deportation hearing may not refuse to answer questions covering his citizenship, place of birth, and the circumstances of his entry into the United States by making a plea of self-incrimination, when information covering such facts is available to hearing officer and indicates that the answers, if made, would not tend to be of aid in effecting a conviction for any Federal offense.
(2) The privilege against self-incrimination must be claimed by the individual involved on his own behalf.
(3) The Government is not required to advise an individual of his right to claim or waive the privilege of self-incrimination.
(4) Testimony having been given voluntarily and the facts having been disclosed, the claim of self-incrimination is no longer available.
(5) To justify a claim of self-incrimination, it must be concluded that the answer might reasonably have a tendency to furnish proof of a link in the chain of evidence necessary for conviction for a Federal crime.
BEFORE THE BOARD
Discussion: This is a motion for reconsideration of an order dated March 14, 1952, by the Board of Immigration Appeals finding the alien deportable on the charge that after admission as a seaman, he had remained longer than permitted under the law and granting him voluntary departure. A new hearing is requested.
Counsel contends that the subject alien should have been permitted to claim the privilege of self-incrimination and compelling the subject alien to testify concerning his citizenship, place of birth, and the circumstances of his entry into the United States was not justified since these matters would tend to incriminate him under 8 U.S.C. 180 (a) which makes it a Federal offense for an alien to enter at an improper time or place; elude examination or inspection; or obtain entry by willful misrepresentation or concealment of facts. After careful consideration of the case, we see no reason to alter our conclusion that the alien was properly found deportable.
The facts relating to the question of self-incrimination are as follows: After informing the subject alien who was represented by counsel, of the nature of the hearing and the charge against him, the hearing officer asked the alien when and where he was born. Counsel requested that the witness be instructed that he need not answer this question or any other question, the answer to which might tend to incriminate him. The hearing officer denied the request. Counsel made a continuing request to similar effect as to each question asked thereafter and the hearing officer entered a continuing denial.
Before giving further consideration to the specific case before us, we believe it may be helpful to first state generally our views concerning the privilege of self-incrimination as it concerns deportation proceedings.
The fifth amendment to the Constitution of the United States protects a witness testifying in deportation proceedings from giving evidence which would tend to show his guilt under a Federal criminal statute. Where there is no such showing, an alien may be compelled to testify.
Graham v. United States, 99 F. (2d) 746, 749 (C.C.A. 9, 1938). Estes v. Potter, 183 F. (2d) 865, cert. den., 240 U.S. 920 (1951).
United States v. Murdock, 284 U.S. 141 (1931).
United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923).
The privilege against self-incrimination must be claimed by the individual involved and can only be claimed on his own behalf. To justify a witness in his refusal to answer, it is not necessary to find that his answer, unconnected with other testimony, would be enough to convict him of crime; it is sufficient if the answer may reasonably have a tendency to incriminate the witness, or furnish proof of a link in the chain of evidence necessary to convict him of crime. To afford the privilege to a witness, it must be found from the character of the question and the other facts adduced in the case, that there is some tangible and substantial probability — some real danger — that the answer of the witness may help convict him of a Federal crime.
Rogers v. United States, 340 U.S. 367, 371 (1951).
Rogers v. United States, 197 F. (2d) 559 (C.A. 10, 1950), aff'd. 340 U.S. 367 (1951).
Ex parte Irvine, 74 Fed. 954, 960, C.C.S.D. Ohio W.D. (1896). See footnote 4.
When reasonable apprehension of such danger is found to exist, the witness alone becomes the judge as to whether his answer may incriminate him. Nor can he be compelled to state why the answer might tend to incriminate him.
1 Burr's Trial, 224 Marshall, C.J. ( U.S. v. Burr, 25 Fed. Cas., Case No. 14, 692e (1807)). See footnote 4.
Where witness has once given testimony voluntarily, it may afterward be used against him in the same or other proceedings and he may not claim the privileges of self-incrimination as to such testimony. Disclosure of a fact waives the privilege as to its details. Where the testimony called for could not be used against the witness in prosecution for crime, because of the running of the statute of limitations, the existence of a pardon, a conviction or an acquittal, or other reasons, the privilege ceases.
Rogers v. United States, 340 U.S. 367, 372 (1951).
Rogers v. United States, 340 U.S. 376, 373 (1951).
Sec. 2279, p. 460, Wigmore on Evidence, 3d Ed., vol. VIII.
While the Government may practice no deception, fraud, or duress upon an accused in order to obtain possession of evidence, it is not required to advise him of his right to claim (or his right to waive) the protection granted under the fifth amendment. However, good judgment may under special circumstances indicate the desirability of volunteering the advice.
Thompson v. U.S., 10 F. (2d) 781, 784 (C.C.A. 7, 1926); U.S. v. Wilson, 42 F. Supp. 721 D.C.D. Delaware (1942).
We will now apply the law to the facts of the instant case. At the time the claim of privilege was advanced, the hearing officer had before him the information that the subject had registered as an alien, information which indicated a lawful admission at a proper port and time; and the knowledge that in issuing a warrant of arrest, the district director who had issued the warrant had found the existence of a prima facie case indicating that the subject was an alien who had been lawfully admitted to the United States and who was deportable on the ground that he had remained beyond the period of his authorized admission. There was nothing from the character of the questions asked or the other facts in the case which indicated a tangible and substantial probability that the answer of the subject alien might help to convict him of a Federal offense. Under such circumstances, it was proper to find the privilege did not exist. We note in fact that there is nothing in the testimony given by the subject alien which would tend to incriminate him.
We see no reason therefore, to change our order of March 14, 1952, or to grant a new hearing. The motion will be denied.
Order: It is ordered that the motion be and the same is hereby denied.