Opinion · United States Board of Immigration Appeals

IN THE MATTER OF C----, 4 IN Dec. 415 (BIA 1951)

4 IN Dec. 415

Type
Opinion
Court
United States Board of Immigration Appeals
Jurisdiction
Federal
Date
1951-06-22
Topic
general

IN THE MATTER OF C----, 4 IN Dec. 415 (BIA 1951) IN THE MATTER OF C----. In DEPORTATION Proceedings. A-7416925Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board June 22, 1951 Expulsion proceeding — Administering oath — Fair hearing — Effect of deficiency in warrant of arrest or in manner of obtaining evidence before warrant of arrest issued. (1) Section 16 of the Immigration Act of February 5, 1917, as amended, applies in expulsion proceedings as in exclusion proceedings empowering immigration officers to administer oaths.

Citator

UpLaw has not yet analyzed IN THE MATTER OF C----, 4 IN Dec. 415 (BIA 1951). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF C----,4 IN Dec. 415(BIA 1951)
IN THE MATTER OF C----. In DEPORTATION Proceedings.
A-7416925
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board June 22, 1951
Expulsion proceeding — Administering oath — Fair hearing —Effect of deficiency in warrant of arrest or in manner ofobtaining evidence before warrant of arrest issued.

(1) Section 16 of the Immigration Act of February 5, 1917, as amended, applies in expulsion proceedings as in exclusion proceedings empowering immigration officers to administer oaths.

(2) Although no deficiency was found in the warrant of arrest or in the manner in which the evidence was obtained prior to the issuance of said warrant (see pt. 150, title 8, C.F.R.), this fact alone would not nullify the entire proceedings, since the warrant hearing was admittedly fair, and sufficient affirmative evidence was there presented to sustain the deportation charge.CHARGE:

Warrant: Act of 1924 — Remained longer — Visitor.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion:This is an appeal from an order entered by the Acting Assistant Commissioner April 5, 1951, directing the respondent's deportation from the United States pursuant to law on the charge stated above.

Counsel in support of his exceptions to the aforementioned order, inter alia, alleges irregularity in the arrest of the respondent in that the evidence upon which the warrant was issued was obtained by means of illegal search and seizure contrary to the fourth amendment to the Constitution of the United States.

The respondent is an alien, a native and citizen of Portugal. He last arrived in the United States at the port of Baltimore, Md., October 15, 1947 ex-S.S.Sundadesand was admitted as a temporary visitor under section 3 (2) of the Immigration Act of 1924, for business for a period extended to February 28, 1948. An extension of his temporary stay was granted to April 15, 1948. He has remained in the United States subsequent to April 15, 1948.

We have carefully reviewed the evidence of record relative to counsel's exceptions. Section 16 of the Immigration Act of 1917, asPage 416amended, provides among other things that immigration officers "shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States, and, where such action may be necessary, to make a written record of such evidence * * *." It has been held that this section applies with equal force to deportation as well as exclusion proceedings (Loufakisv.United States,81 F. (2d) 966(C.C.A. Pa., 1936)).

It is our considered judgment that the weight of evidence in the instant case affirmatively establishes that the investigating officers first identified themselves to the respondent when he opened the door to his apartment in the hotel where he (the alien) resided. There is also affirmative evidence that the investigating officers warned the alien that any statement made by him may be used as evidence against him in any subsequent proceeding. The investigating officers then conducted the interrogation pursuant to the regulations then in effect. (See pt. 150, title 8, C.F.R.)

The facts relative to respondent's entry and his unlawful residence in the United States subsequent to April 15, 1948, fully justified the telephonic issuance of a warrant of arrest by the district director under the regulations (pt. 150, title 8, C.F.R.). Although we find no deficiency in the warrant of arrest or in the manner in which the evidence was obtained prior to the issuance of said warrant, this fact alone would not nullify the entire proceedings, since the warrant hearing was admittedly fair (we find no exceptions on this point by counsel) and sufficient affirmative evidence was there presented to sustain the deportation charge (Toku Sakaiv.United States,239 Fed. 492 (C.C.A. 9, 1917)).

The respondent applied for voluntary departure under the provisions of section 19 (c) of the Immigration Act of 1917, as amended. He testified that he is married, that his wife and three children reside in Portugal and that he has contributed to their support. Since his arrival in the United States, he has been employed on various construction projects in the States of New York and Pennsylvania. Exhibits A through E, Stipulation No. 2, are certificates of good conduct from various police departments in the States of New York and Pennsylvania. Exhibit 4 is a letter from an exporting concern at Lisbon, Portugal, which states that the respondent is a very reliable exporter, but due to the condition of international exchange, business has been curtailed considerably. Exhibits F and G are affidavits executed by two citizens of the United States of Portuguese nativity attesting that they have known the respondent since January of 1950 and that he is a person of good moral character. Since there is no evidence other than that the respondent has been a person of goodPage 417moral character for the statutory period, we will permit him to depart voluntarily at his own expense, to any country of his choice within 30 days from the date of notification of this decision. If the respondent does not take advantage of the foregoing privilege, the order and warrant of deportation will be reinstated.Order:It is directed that the order and warrant of deportation dated April 3, 1951, be and the same are hereby withdrawn.It is further directedthat an order of deportation be not entered at this time but that the alien be required to depart from the United States, without expense to the government, to any country of his choice within 30 days after notification of decision, on consent of surety, and conditioned upon arrangements being made with the local immigration office for verification of departure. Departure in accordance with the foregoing will be deemed sufficient to cancel the outstanding delivery bond.It is further directedthat if the alien does not depart within the time limit mentioned in the foregoing order, he be deported from the United States forthwith pursuant to law on the charge stated in the warrant of arrest.Page 418