Miguel Tejeda-Mata v. Immigration and Naturalization Service

626 F.2d 721, 1980 U.S. App. LEXIS 14466

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 29, 1980
• Docket: 78-3651
• Status: Published

Opinions

BARTELS, District Judge:

Petitioner Miguel Tejeda-Mata appeals an order of the Board of Immigration Appeals dated November 16, 1978 dismissing his appeal from an Immigration Judge’s finding of deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2), and granting him voluntary departure.¹ The principal issues presented are whether (1) the Immigration Judge’s finding as to the sufficiency of the evidence was supported by reasonable, substantial, and probative evidence, and (2) the administrative authorities denied petitioner due process of law in reaching the ultimate conclusion of deportability. We affirm.

I. Background

Petitioner is a native of Mexico and is charged with having entered the United States near San Ysidro, California without inspection in November 1974. While driving through a store parking lot in Connell, Washington on February 19, 1977, Immigration Officer Jimmy Spence recognized an alien whom he had previously arrested and who had been granted voluntary departure from the United States approximately three weeks earlier. After parking his vehicle so that it blocked the exit of the alien’s vehicle, Spence approached and began to open the door on the driver’s side of the alien’s car. Suddenly, petitioner ran toward the car, asked in Spanish what was happening, and said in English with a heavy Spanish accent, “It’s my car.” Spence informed him that he was an immigration officer and asked petitioner who he was. When petitioner appeared not to understand, Spence asked in Spanish where he was from, and petitioner responded that he came from Mexico.

After placing both persons in his vehicle, Officer Spence asked whether either had family or possessions in the United States. Both answered “no,” but petitioner changed his mind to the affirmative fifteen minutes en route to the jail in Othello, Washington. When petitioner subsequently refused to sign a request for voluntary departure form, Spence obtained an order to show cause and an arrest warrant and prepared a Record of Deportable Alien, INS Form I-213.²

At his deportation hearing held on February 7, 1978, petitioner, through his counsel, denied each of the allegations contained in the order to show cause, and he refused to admit deportability. Through a Spanish language interpreter, petitioner testified regarding the events surrounding his arrest on February 19, 1977, but he refused to answer any questions concerning his citizenship or entry into the United States on the ground that the answers might tend to incriminate him. Upon questioning by the INS trial attorney, however, petitioner admitted telling Officer Spence prior to his arrest that he came from Mexico. Petitioner’s counsel requested that the testimony of Officer Spence, the only witness offered by the government, be translated for his client into Spanish by the official interpreter. When this request was denied by the Immigration Judge, petitioner’s counsel offered to translate the testimony himself so that petitioner would have the benefit of simultaneous translation of the testimony against him. This request was also denied. During the course of Spence’s testimony, the INS Form 1-213 was admitted into evidence over petitioner’s objection.

At the conclusion of the hearing, the Immigration Judge found that (1) petitioner had voluntarily told Officer Spence before arrest that he was from Mexico; (2) because of this admission, petitioner had the burden of proving time, place, and manner of entry into the United States, which burden he failed to carry; and (3) petitioner’s deportability had been established by clear, convincing, and unequivocal evidence. He granted petitioner the privilege of voluntary departure.

The Board of Immigration Appeals dismissed petitioner’s appeal in a four-page decision, concluding that the Immigration Judge’s admission into evidence of Form 1-213 was proper because the document was trustworthy and prepared in the regular course of business; petitioner had failed to meet his burden of proving time, place, and manner of entry into the United States; Officer Spence was authorized to question petitioner without a warrant for his arrest because petitioner failed to produce any evidence that Spence did not have a reasonable suspicion that petitioner was an illegal alien; and since the regulations contained no requirement that the deportation proceedings be recorded in Spanish, petitioner was not denied due process by the Immigration Judge’s failure to require such transcription.

This appeal followed.

II. Sufficiency of the Evidence

Petitioner challenges the sufficiency of the evidence on several grounds. First, he asserts that Form 1-213 was inadmissible because of its hearsay character and because it was not properly authenticated. Similar contentions were considered and rejected by this court in Trias-Hernandez v. Immigration and Naturalization Service, 528 F.2d 366, 369 (9th Cir. 1975), where we upheld the admissibility of Form 1-213 upon our finding that it was (1) probative on the issue of petitioner’s entry into the United States, and (2) fundamentally fair. In this case, the information contained on the form — e. g., name, address, country of citizenship, circumstances of arrest, etc.— was undoubtedly probative, and there is no basis in the record to conclude that the information was obtained from anyone other than petitioner or that it was in any way the product of coercion or duress. Moreover, the authenticity of the document was sufficiently established by the testimony of Officer Spence, who identified it as the 1-213 form prepared by him shortly after arriving at the jail in Othello, Washington on February 19, 1977.

Second, petitioner contends that his admission to Officer Spence that he came from Mexico should have been suppressed because it was coerced. On the contrary, at the time petitioner made the statement no arrest had been made, no curtailment of petitioner’s liberty had been imposed, and no threat to do so had been made by Officer Spence. Because petitioner willingly admitted his alienage under such circumstances, he cannot now claim that his statement was the product of an illegal search or seizure. Cordon de Ruano v. Immigration and Naturalization Service, 554 F.2d 944, 946 (9th Cir. 1977); Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1071 (7th Cir. 1976), modified in part on rehearing en banc, 548 F.2d 715 (7th Cir. 1977). Moreover, section 287(a)(1) of the Immigration and Naturalization Act, 8 U.S.C. § 1357(a)(1), authorizes any INS officer to interrogate without a warrant any person believed to be an alien as to his right to be or remain in the United States. Id. at 1070; Ojeda-Vinales v. Immigration and Naturalization Service, 523 F.2d 286, 287 (2d Cir. 1975); Cheung Tin Wong v. Immigration and Naturalization Service, 468 F.2d 1123, 1128 (D.C.Cir.1972); Au Yi Lau v. Immigration and Naturalization Service, 445 F.2d 217, 223 (D.C.Cir.), cert. denied, 404 U.S. 864, 92 S.Ct. 64, 30 L.Ed.2d 108 (1971). In this case, the reasonableness of Officer Spence’s belief is supported by a number of circumstances. For example, petitioner was with a known illegal alien, spoke with a distinct Spanish accent, and had trouble understanding English. In addition, he approached and sought to interrupt Spence as he was trying to open the car door to speak with the known illegal alien, and he appeared shocked when he heard Spence was an INS officer. On the basis of these circumstances, we believe Officer Spence’s brief questioning of petitioner concerning his name and country of origin was clearly justified, and we conclude, therefore, that petitioner’s statement of alienage was properly admitted by the Immigration Judge.³

Finally, petitioner seeks to overturn the finding of deportability on the basis of an allegedly illegal arrest. Section 287(a)(2) of Title 8 U.S.C. authorizes an INS officer to arrest without a warrant “any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest The phrase “has reason to believe” has been equated with the constitutional requirement of probable cause. United States v. Cantu, 519 F.2d 494, 496 (7th Cir.), cert. denied, 423 U.S. 1035, 96 S.Ct. 569, 46 L.Ed.2d 409 (1975); Au Yi Lau v. Immigration and Naturalization Service, 445 F.2d at 222. In this case, the circumstances listed supra in justification of Spence’s interrogation of petitioner, together with his uncoerced admission that he “came from Mexico,” constitute a clearly sufficient basis for his warrantless arrest.

Considering the record as a whole, we conclude that the findings of the Immigration Judge were supported by reasonable, substantial, and probative evidence. Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966); Garcia-Jaramillo v. Immigration and Naturalization Service, 604 F.2d 1236, 1238 (9th Cir. 1979); Lavoie v. Immigration and Naturalization Service, 418 F.2d 732, 735 (9th Cir. 1969); Cordon de Ruano v. Immigration and Naturalization Service, 554 F.2d 944, 947 (9th Cir. 1977); Trias-Hernandez v. Immigration and Naturalization Service, 528 F.2d at 370; 8 U.S.C. § 1105a(a)(4). Once petitioner’s alienage was established — as it was by his admission to Officer Spence — the burden of proof shifted to him to prove time, place, and manner of entry. Hoonsilapa v. Immigration and Naturalization Service, 575 F.2d 735, 737 (9th Cir.), modified on other grounds, 586 F.2d 755 (1978); Trias-Hernandez v. Immigration and Naturalization Service, 528 F.2d at 370; 8 U.S.C. § 1361. By his refusal to either testify or offer evidence with respect to those questions, petitioner failed to carry his burden, and the Immigration Judge could properly draw adverse inferences from petitioner’s silence. Cuevas-Ortega v. Immigration and Naturalization Service, 588 F.2d 1274 at 1278 (9th Cir. 1979); Hoonsilapa v. Immigration and Naturalization Service, 575 F.2d at 737; Chavez-Raya v. Immigration and Naturalization Service, 519 F.2d 397, 401 (7th Cir. 1975). Thus, we decline to overturn the findings below with respect to the sufficiency of the evidence.

III. Due Process

Petitioner next asserts that the INS failed to comply with one of its own regulations, 8 C.F.R. § 242.2(e), requiring that the agency inform an alien of his or her right to communicate with consular or diplomatic officials of his or her own country.⁴ The government apparently concedes its own noncompliance, but argues that petitioner was in no way prejudiced thereby and hence that any error on its part was harmless.

In United States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979), this court held that “[violation of a regulation renders a deportation unlawful only if the violation prejudiced the interests of the alien which were protected by the regulation.” In considering a violation of precisely the same regulation claimed to have been violated in this case, we stated as follows:

The district courts in these cases made no finding of specific harm to these aliens resulting from lack of notice of their right to communicate with the Mexican Consul. Nor did appellees identify evidence of such harm in the record. Therefore, we reverse the orders dismissing the indictments.

On remand the aliens should be allowed the opportunity to demonstrate prejudice resulting from the INS regulation violations. The district courts will determine whether violations of 8 C.F.R. § 242.2(e) harmed the aliens’ interests in such a way as to affect potentially the outcome of their deportation proceedings.

Id. at 532.

Although we might be inclined to remand this case for the purpose stated in Calderon-Medina, it is an established principle that this court does not sit as an administrative agency for the purpose of fact-finding in the first instance, and if a petitioner wishes to preserve an issue for appeal, he must first raise it in the proper administrative forum. Der-Rong Chour v. Immigration and Naturalization Service, 578 F.2d 464, 468 (2d Cir. 1978); Cisternas-Estay v. Immigration and Naturalization Service, 531 F.2d 155, 160 (3d Cir. 1976); Leung v. Immigration and Naturalization Service, 531 F.2d 166, 168 (3d Cir. 1976); Chi Sheng Liu v. Holton, 297 F.2d 740, 744 (9th Cir. 1961); Chung Young Chew v. Boyd, 309 F.2d 857, 861 (9th Cir. 1962). There is nothing in the record of this case suggesting that petitioner, who has at all times been represented by counsel, raised the question of noncompliance by the INS with its consular communication regulation before either the Immigration Judge or the Board of Immigration Appeals. Petitioner’s failure to raise this issue below is significant because the factual record necessary to proper review by this court can only be made by the Immigration Judge. Therefore, in the absence of any reason justifying petitioner’s decision to raise for the first time in this court the issue of the alleged failure of INS to comply with 8 C.F.R. § 242.2(e), we conclude that his failure to exhaust administrative remedies on this issue precludes our consideration of it at this stage of the proceedings.

Petitioner contends finally that he was denied due process by the failure of the Immigration Judge to require a Spanish language transcription of the record and to permit simultaneous translation of the testimony offered against him. Although we do not believe that dual language transcription of the record was required, the inexplicable refusal of the Immigration Judge to permit simultaneous translation of the testimony against petitioner by either the official interpreter or petitioner’s counsel seems unquestionably to be an abuse of his discretion. It is true, as the government points out, that deportation proceedings have been deemed civil in nature, rather than criminal, and hence that all the due process protections accorded to a defendant in a criminal proceeding do not apply in this context. Abel v. United States, 362 U.S. 217, 237, 80 S.Ct. 683, 696, 4 L.Ed.2d 668 (1960); Whetstone v. Immigration and Naturalization Service, 561 F.2d 1303, 1306 (9th Cir. 1977). It is equally well established, however, that when an alien is charged with having entered the United States illegally, he or she is entitled to a full and fair hearing prior to deportation, Wong Yang Sung v. McGrath, 339 U.S. 33, 49-51, 70 S.Ct. 445, 454, 94 L.Ed. 616 (1950); Garcia-Jaramillo v. Immigration and Naturalization Service, 604 F.2d at 1239, and this court and others have repeatedly recognized the importance of an interpreter to the fundamental fairness of such a hearing if the alien cannot speak English fluently. See Niarchos v. Immigration and Naturalization Service, 393 F.2d 509, 511 (7th Cir. 1968); Ramirez v. Immigration and Naturalization Service, 550 F.2d 560, 565 n. 5 (9th Cir. 1977); Orozco-Rangel v. Immigration and Naturalization Service, 528 F.2d 224 (9th Cir. 1976); Leung v. Immigration and Naturalization Service, 531 F.2d at 168; Haidar v. Coomey, 401 F.Supp. 717, 720 (D.Mass.1974). Where, as here, the official interpreter was present at the hearing in order to translate petitioner’s own testimony and petitioner’s counsel offered to assist if necessary, the Immigration Judge’s denial of the request for simultaneous translation of Officer Spence’s testimony was plainly improper.

Faced with such an abuse of discretion, this court would, as a general rule, feel compelled to reverse and remand this case for a new hearing. Limited to the specific circumstances of this case, however, including, in particular, the fact that the untranslated testimony only confirmed petitioner’s own admission of alienage, we conclude, albeit reluctantly, that the Immigration Judge’s error was harmless and that a new hearing would be no more than a futile gesture.

Accordingly, for the reasons set forth above, the decision of the Board of Immigration Appeals is affirmed.

¹

. Section 1251(a)(2) of Title 8 of the United States Code provides:

(a) Any alitn in the United States . . . shall, upon the order of the Attorney General, be deported who—

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(2) entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States

* * # * * *

2 . Information contained on the INS Form 1-213 included petitioner’s name, local address, permanent address (“Caguallana, Mich., Mexico”), country of citizenship (“Mexico”); the names and addresses of his wife, child, and parents; and the circumstances of his arrest and statements made thereafter. The form was signed by INS Officer Spence.

3 . Petitioner’s contention that Miranda warnings were required at the time of his arrest has previously been rejected by this court in Trias-Hernandez v. Immigration and Naturalization Service, 528 F.2d 366, 368-69 (9th Cir. 1975).

4 . Section 242.2(e) of Title 8 of the Code of Federal Regulations provides, in pertinent part, as follows:

(e) Privilege of communication. Every detained alien shall be notified that he may communicate with the consular or diplomatic officers of the country of his nationality in the United States. Existing treaties require immediate communication with appropriate consular or diplomatic officers whenever nationals are detained in exclusion of (sic) expulsion proceedings, whether or not requested by the alien, and, in fact, even if the alien requests that no communication be undertaken in his behalf: * * * Mexico * *.