A-10245382
Decided by Board July 18, 1956 Reversed by Attorney General September 13, 1956.
Evidence — Silence — Fair hearing — Refusal of special inquiry officer to permit respondent to testify concerning alleged unlawful arrest and search not prejudicial error.
(1) The respondent's refusal to testify concerning questions of alienage, time, place, and manner of entry, and possession of entry documents, constitutes evidence supporting a finding that he is deportable as charged for having entered the United States as an immigrant not in possession of a valid immigrant visa.
(2) Special inquiry officer's rejection of respondent's offer to testify concerning alleged unlawful arrest and search was not prejudical error and did not deprive respondent of a fair hearing.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (1) — Excludable at the time of entry — No Immigrant visa.
BEFORE THE BOARD
(July 18, 1956)
Discussion: The respondent appeals from an order entered by the special inquiry officer on February 29, 1956, directing his deportation on the charge stated in the warrant of arrest. Counsel during oral argument before this Board and in his brief urges procedural error in the conduct of the hearing.
The record relates to a native and citizen of Portugal, male, unmarried, 22 years of age, who last entered the United States at the port of Baltimore, Maryland, on August 22, 1955, and was admitted as a crewman "D-1" for a period not to exceed 29 days.
During the course of the hearing, on advice of counsel, the respondent refused to answer questions directed to him by the special inquiry officer on the ground that his answers may tend to incriminate him. The evidence relative to deportability is found in a statement taken from the respondent on February 2, 1956. This statement has been identified by the immigration officer who interrogated the respondent and the official immigration interpreter who interpreted for the respondent. Exhibit 2 establishes that the respondent at the time of his arrival intended to enlist in the United States Navy and reside permanently in the United States. He admitted that he did not have an immigrant visa or equivalent document which would authorize his admission for permanent residence.
Counsel, inter alia, urges reversible error on the part of the special inquiry officer in that he (counsel) was limited in the cross-examination of witnesses proffered by the Government. Counsel also urges procedural error in that the special inquiry officer indulged in leading questions in examining the Government's witness, refused counsel information concerning his superior officers and admitted an unidentified document in evidence. Finally, counsel urges reversible error on the part of the special inquiry officer in refusing the direct examination of the respondent as to his alleged illegal arrest and search without a warrant.
We agree with the special inquiry officer that a majority of the exceptions raised by counsel are without merit. However, we do find that the special inquiry officer erred in refusing to permit counsel the opportunity to interrogate his own witness to establish the premise of an alleged illegal search and seizure.
We have had occasion in the past to consider a similar objection raised by counsel. We said in the B---- case ( supra):
Matter of B----, A-7948051 (0400/42369), B.I.A., April 5, 1954 (unreported).
Where proceedings are held under the auspices of administrative authority all claims must be appropriately set forth so that they may be open to challenge and opposing evidence ( Crowell v. Benson, 285 U.S. 22, 48 (1932)). * * * The burden of demonstrating error is upon the alien. Denial of opportunity to question the respondent relative to the manner in which he was arrested in this instance is prejudicial because otherwise counsel would be unable to lay the foundation of alleged illegality in the arrest of respondent. Cf. Coca Cola Bottling Company of Black Hills et al. v. Hubbard, 203 F. (2d) 859 (1953).
We are aware of the fact that the Supreme Court has said, "Irregularities on the part of (a) government official prior to, or in connection with the arrest (of an alien) would not necessarily invalidate later proceedings in all respects conformable to law" ( Bilokumsky v. Tod, 263 U.S. 149, 158 (1923)). However, the Supreme Court's ruling in the Bilokumsky case ( supra) was made on the assumption that the alien was in lawful detention since it also said, "It may be assumed that evidence obtained by the Department (Immigration Service) through an illegal search and seizure cannot be made the basis of a finding in deportation proceedings" ( Ibid. at p. 155).
The case will be remanded to the special inquiry officer for the purpose of permitting counsel to present his proffered proof of the alleged illegality of respondent's arrest and search without a warrant. Counsel is advised, however, that in the event the respondent is offered as a witness he may be cross-examined as to any issue presented by the case. Cf. Matter of M---- L----, A-10335031, B.I.A., May 25, 1956 (unreported).
Order: It is ordered that the hearing be reopened for the purpose stated in the foregoing opinion.
In accordance with the directive of the Attorney General and pursuant to the provisions of 8 CFR 6.1 (h) (1) (i), the Board refers to the Attorney General for review its decision in this case.
(September 13, 1956)
The decision and order of the Board of Immigration Appeals dated July 18, 1956, is hereby reversed, and the decision of the special inquiry officer herein and the order that the respondent be deported are reinstated. The issues involved in the subject case are whether there is reliable, substantial, and probative evidence in the record to support a finding of deportation, and whether the respondent received a fair hearing in the light of the fact that an offer of proof was rejected concerning the alleged illegal arrest and search of the respondent. After an examination of the record of the case, the Immigration and Nationality Act, and regulations issued pursuant thereto, and the decisions of the courts and Board of Immigration Appeals, it is my opinion that both of the questions stated above must be answered in the affirmative. The respondent's steadfast refusal to testify concerning the questions of his alienage, time, place, and manner of entry, and possession of proper unexpired immigration or entry documents, under the circumstances of this case, is by operation of statutory law and common-law inference reliable, substantial and probative evidence supporting a finding that the respondent is deportable pursuant to sections 241 (a) (1) and 212 (a) (20) of the Immigration and Nationality Act (section 291 ( 8 U.S.C. 1361) of the Immigration and Nationality Act; Bilokumsky v. Tod, 263 U.S. 149; Vajtauer v. Commissioner of Immigration, 273 U.S. 103 (1927); Caetano v. Shaughnessy, 133 F. Supp. 211 (1955)). Likewise, in the light of the above conclusion, the refusal of the special inquiry officer to permit the respondent to testify concerning his alleged unlawful arrest and search, which was the only matter concerning which the respondent would testify, was not prejudicial error or a denial of a full and fair hearing on those issues which were relevant, material and controlling as to the disposition of the charges against the respondent.