A-8834104
Decided by Board August 27, 1956.
Evidence — Preliminary sworn statement — Need not be identified to establish deportability under section 241 (a) (9), Immigration and Nationality Act, where alien stands mute.
When an alien in deportation proceedings states his name and thereafter stands mute claiming the privilege of self-incrimination under the Fifth Amendment, his unidentified preliminary sworn statement may be relied upon to establish his deportability. The refusal of the alien to testify does not pose a constitutional question but concerns a rule of evidence. An inference may be drawn from his refusal to testify and such inference is evidence. ( Slochower v. Board of Education, 350 U.S. 551 (1956), distinguished.)
CHARGE:
Warrant: Act of 1952 — Section 241(a) (9) — Failed to comply with conditions of status-crewman.
BEFORE THE BOARD
Discussion: The respondent appeals from an order entered by the special inquiry officer, April 9, 1956, directing his deportation under the above-stated provision of the Immigration and Nationality Act of 1952. Counsel on appeal urges error on the part of the special inquiry officer in relying upon an unidentified statement taken from respondent and inferences drawn from the fact that respondent stood mute during the hearing as evidence establishing deportability.
The respondent has been afforded a hearing before a special inquiry officer on a warrant of arrest issued August 10, 1955, charging in substance that he is an alien who last entered the United States at the port of San Pedro, California, ex SS. Atlantic Wave on June 19, 1955, and subject to deportation under section 241 (a) (9) of the Immigration and Nationality Act ( 8 U.S.C. 1251 (a) (9)) in that after admission as a nonimmigrant crewman under section 101 (a) (15) (D) of the said act ( 8 U.S.C. 1101 (a) (15) (D)) he failed to comply with the conditions of said status. The respondent during the hearing stated his name for the record and thereafter upon advice of counsel stood mute, claiming privilege under the Fifth Amendment to the Constitution of the United States.
The evidence relied upon by the special inquiry officer to establish deportability is found in a sworn statement taken from respondent on August 10, 1956, entered as exhibit 2, and a crewman's landing permit, entered as exhibit 3. These exhibits were entered in evidence over the objection of counsel without identification. Predicated thereon, the special inquiry officer made the following Findings of Fact:
(1) That the respondent is an alien, a native and citizen of Greece;
(2) That the respondent last entered the United States at San Pedro, California, on June 19, 1955, at which time he was admitted as a temporary nonimmigrant crewman under the provisions of section 101 (a) (15) (D) of the Immigration and Nationality Act to July 18, 1955;
(3) That the respondent has remained in the United States beyond July 18, 1955, without authority, thereby failing to comply with one of the conditions of the status of crewman under which he was admitted.
Counsel argues that the privilege claimed by respondent of the protection afforded him by the Fifth Amendment gave no ground for any inference that respondent's failure to answer was an admission of the truth of a charge lodged against him. Counsel concedes that the Board in Matter of P----, 0400/57668, Int. Dec. No. 773, B.I.A., Feb. 23, 1956, ruled adversely on this point. He urges that in the P---- case the board relied upon the case of Caetano v. Shaughnessy, 133 F. Supp. 211 (S.D.N.Y., July 29, 1955), which has in effect been overruled by the Supreme Court's decision in Slochower v. Board of Education, 350 U.S. 551, 76 S. Ct. 637, decided April 9, 1956.
We do not agree with counsel. The salient facts of the Caetano case ( supra) are almost identical with those of the instant case. It involves a deportation proceeding under the immigration laws. The Slochower case ( supra) on the other hand involves the constitutionality of a provision of the Charter of the City of New York (section 903) requiring the discharge without notice or hearing, of a municipal employee utilizing the privilege against self-incrimination in refusing to answer legally authorized inquiries as to his official conduct. Slochower invoked the privilege against self-incrimination under the Fifth Amendment before an investigating committee of the United States Senate, and was summarily discharged from his position as Associate Professor at Brooklyn College, an institution maintained by the City of New York. The Supreme Court held that the dismissal was improper because the municipal charter provision as applied to Slochower worked a denial of due process of law.
The respondent in the instant case has not been denied due process of law because, unlike Slochower, he has been afforded an administrative hearing and has had ample opportunity to present his defense. We are not here involved with the constitutionality of a provision of the immigration laws penalizing an alien who invokes the privilege afforded by the Fifth Amendment. The question before us concerns a rule of evidence and not a constitutional matter.
We note that this very issue was among those considered by the court in the case of Hyun v. Landon, 219 F. (2d) 404 (C.C.A. 9, 1955). The Circuit Court of Appeals held that a refusal of an alien to testify forms a basis for an inference and such inference is evidence. The Supreme Court granted certiorari and an equally divided court affirmed the judgment of the Court of Appeals in a per curiam decision ( 350 U.S. 816).
Under the circumstances we find no error on the part of the special inquiry officer in relying upon the unidentified preliminary statement taken from the respondent and the inferences drawn from his refusal to testify. The respondent made no application for any form of discretionary relief. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.