Interim Decision *1479
Meal= or PANG* In Deportation Proceedings A-15169531
Decided by Board Arno 9,1965 (1) Authority exists under sections 235, 287(a) and 287(b), /mmigmtion and Nationality Act, for a Service officer to interrogate or take evidence T/0111 an alien as to his right to remain in the United States, and respondent's pre- hearing sworn statement made voluntarily and withont_requesk: for kepre- • entaiobycuslfreanivtgohSercisadmblIn evidence in deportation proceedings (8 DIM 20.14(0) f Is not in violation of .due process or fair hearing; and is not bound by Judicial rules of evi- dence concerning antheuLtication'In criminal proceedings since a deportation proceeding is civil in nature rattier than criminal and Is not within Es- cobedo v. Illinois, 378 U.S. 478 (1964), and Monfort T.. tinned States, 377 U.S. 201 (1964).** (2) An alien who refuses to testify at his deportation hearing must nevertheless show his right to stay in the United States or he must depart.** ' •
Order: Act of 1952--Section 241(a) (2) [8 U.S.O. 1251(a) (2) Entered after having been refused permiseion to4tand as a crewman.
The special inquiry officer found that respondent is 34 years old, married, male, alien, a native and citizen of China, who last arrived in the United States at New York on September 4, 1962. The special inquiry officer found further that he is a crewman who was refused permission to go ashore but that he did go ashore, and has remained in the-United States since that date. The special inquiry officer found respondent deportable on the charge set forth above and ordered him deported to the Republic of China on Formosa. Respondent requests termination of these proceedings on the ground that the above-found facts are not established by the record. *NOTE: See also, Matter of Pang, Int. Dee. No. 1502, of which tb- alien it this case is also the subject. *•Reaffirmed, 308 5'.2d 687 (0.A. a, 1966).
213 Interim.Deeision *1479 -Respondent declined, through comma', to request voluntary departure from the United States, and he made no application for temporary withholding of deportation under section 243(h) of the Immigration. and Nationality Act. He appeals from the speciaL inquiry officer's finding that he is deportable. The appeal will be dismissed. The following facts are admitted: On November 4, 1964, two in- vestigators for the Immigration and Naturalization Service stopped at a restaurant in Allentown, Pennsylvania, on a routine check. They went directly to the kitchen, identified themselves as investi- gators for the Immigration and Naturalization Service, talked to Mr. Low, one of the cooks, and then to respondent. The record contains an affidavit dated November 6, 1964, executed at Philadelphia, Penn- sylvania, referred to hereinafter as Fallibit 2. Rvhibit 2 was written by Harold Stokes, one of the investigators, from information taken through an interpreter for the Immigration and Naturalization Serv- ice, Mr. Mervin Kan. Respondent alleges with regard to Exhibit 2 that it was im- properly admitted into evidence: (1) in violation of the respondent's constitutional rights under the Fifth Amendment, (2) in violation of the rules of evidence concerning authentication and that a proper foundation was not laid, (3) in violation of the Supreme Court de- cisions guaranteeing the right to an attorney at the time an investi- gation for'deportation is initiated. Respondent further alleges that the Immigration and Naturalization Service did not sustain its bur- den of proof in the deportation hearing_ Exhibit 2, Affidavit, is written on Form I-2161 which has at the top a printed acknowledgment by the affiant stating, "I, acknowledge that the above-named officer has identified himself to me as an officer of the United States Immigration and Naturalization Service authorized by law to administer oaths and take testimony in connection with the enforcement of the Immigration and Naturali- zation laws of the 'United. States. I am willing to make a sworn statement before him. I understand that any statement which I make must be freely and voluntarily given and that it may be used by the Government as evidence in any proceedings against me or any other person. Being duly sworn, I make the following statement freely and voluntarily :". In this affidavit respondent stated that he was born in China on October 2, 1930, that he is a Chinese citizen, that neither of his parents was ever a United States citizen or resi- dent in this country. He stated that he arrived in the 'United' States at New York September 4, 1962, and was refused permission to go ashore by the immigration officers, but that he went ashore with his "boss, the bosun" between 6 p.m. and 8 p.m. He further stated gen- 214 Interim Decision $479 erally his movements from town to town since his entry, gave his '- Social Security number, and stated that he had come to the United States only once before—as a member of the SS "Hindustan" in 1961 or 1962 at which time.he was refused shore leave at Norfolk, Vir- ginia. The affidavit is signed "Ah Chiu Pang" both on pages 1 and 2. A certification by Mr. Kan, the interpreter, on page 2 declares (in part), "I read the foregoing to Ab. Chia Pang and that he stated that understood were true and correct". Respondent's hearing was called for March 2, 1965, at Phila- delphia, Pennsylvania. He requested a continuance to get a lawyer. He was informed that the order to show cause had instructed him to appear with a lawyer if he 'wished to be represented. He was never- theless, given until March 12, 1965, to secure counsel. At the hearing on March. 12, and on March 19, 1965, respondent stated his name and where he resides, and he declined to answer all other questions on the ground that he was .invoking the Fifth Amendment. Mr. Harold Stokes, the investigator for the Immigration and Nat- uralization Service, testified that Allentown, Pennsylvania, is part of his District, and that he works out of the Philadelphia District of- fice. He testified: that he and another investigator were making a routine search in Allentown,•ecanse there had recently been a num- ber of desertions from Chinese. vessels in that district. Mr. Stokes identified respondent as the person, Ah Chin Pang, whom he found at Allentown. world g in the kitchen of the Rubes' Restaurant. First the investigators showed him their credentials and identified themselves as immigration officers. Respondent was asked for his passport or any other form of identification. He admitted that he had no papers, and that he was prepared to go with them. Mr. Stokes testified that respondent said in English, "I do not have any papers". Otherwise, the conversation between the investigators and respondent was through Mr. Low, a Chinese cook in the restaurant kitchen. who acted as interpreter. They next saw him in the Phila- delphia office, perhaps two days later, at which time a statement was taken from respondent. This statement was written in Mr. Stokes' handwriting' and taken, through Mr. Kan, a regular Immigration and Naturalization Service interpreter. Mr. Stokes testified that he placed respondent under oath, and respondent signed the affidavit. Mr. Stokes also testified. that the respondent was told that the affi- davit was a voluntary statement, that it could be used in any pro- ceeding against him, and that he did not -ask. to be 'represented by counsel. Counsel contends that Exhibit 2 is not properly identified or rela- ted to respondent, in that Mr.
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Interim Decision *1479
Meal= or PANG* In Deportation Proceedings A-15169531
Decided by Board Arno 9,1965 (1) Authority exists under sections 235, 287(a) and 287(b), /mmigmtion and Nationality Act, for a Service officer to interrogate or take evidence T/0111 an alien as to his right to remain in the United States, and respondent's pre- hearing sworn statement made voluntarily and withont_requesk: for kepre- • entaiobycuslfreanivtgohSercisadmblIn evidence in deportation proceedings (8 DIM 20.14(0) f Is not in violation of .due process or fair hearing; and is not bound by Judicial rules of evi- dence concerning antheuLtication'In criminal proceedings since a deportation proceeding is civil in nature rattier than criminal and Is not within Es- cobedo v. Illinois, 378 U.S. 478 (1964), and Monfort T.. tinned States, 377 U.S. 201 (1964).** (2) An alien who refuses to testify at his deportation hearing must nevertheless show his right to stay in the United States or he must depart.** ' •
Order: Act of 1952--Section 241(a) (2) [8 U.S.O. 1251(a) (2) Entered after having been refused permiseion to4tand as a crewman.
The special inquiry officer found that respondent is 34 years old, married, male, alien, a native and citizen of China, who last arrived in the United States at New York on September 4, 1962. The special inquiry officer found further that he is a crewman who was refused permission to go ashore but that he did go ashore, and has remained in the-United States since that date. The special inquiry officer found respondent deportable on the charge set forth above and ordered him deported to the Republic of China on Formosa. Respondent requests termination of these proceedings on the ground that the above-found facts are not established by the record. *NOTE: See also, Matter of Pang, Int. Dee. No. 1502, of which tb- alien it this case is also the subject. *•Reaffirmed, 308 5'.2d 687 (0.A. a, 1966).
213 Interim.Deeision *1479 -Respondent declined, through comma', to request voluntary departure from the United States, and he made no application for temporary withholding of deportation under section 243(h) of the Immigration. and Nationality Act. He appeals from the speciaL inquiry officer's finding that he is deportable. The appeal will be dismissed. The following facts are admitted: On November 4, 1964, two in- vestigators for the Immigration and Naturalization Service stopped at a restaurant in Allentown, Pennsylvania, on a routine check. They went directly to the kitchen, identified themselves as investi- gators for the Immigration and Naturalization Service, talked to Mr. Low, one of the cooks, and then to respondent. The record contains an affidavit dated November 6, 1964, executed at Philadelphia, Penn- sylvania, referred to hereinafter as Fallibit 2. Rvhibit 2 was written by Harold Stokes, one of the investigators, from information taken through an interpreter for the Immigration and Naturalization Serv- ice, Mr. Mervin Kan. Respondent alleges with regard to Exhibit 2 that it was im- properly admitted into evidence: (1) in violation of the respondent's constitutional rights under the Fifth Amendment, (2) in violation of the rules of evidence concerning authentication and that a proper foundation was not laid, (3) in violation of the Supreme Court de- cisions guaranteeing the right to an attorney at the time an investi- gation for'deportation is initiated. Respondent further alleges that the Immigration and Naturalization Service did not sustain its bur- den of proof in the deportation hearing_ Exhibit 2, Affidavit, is written on Form I-2161 which has at the top a printed acknowledgment by the affiant stating, "I, acknowledge that the above-named officer has identified himself to me as an officer of the United States Immigration and Naturalization Service authorized by law to administer oaths and take testimony in connection with the enforcement of the Immigration and Naturali- zation laws of the 'United. States. I am willing to make a sworn statement before him. I understand that any statement which I make must be freely and voluntarily given and that it may be used by the Government as evidence in any proceedings against me or any other person. Being duly sworn, I make the following statement freely and voluntarily :". In this affidavit respondent stated that he was born in China on October 2, 1930, that he is a Chinese citizen, that neither of his parents was ever a United States citizen or resi- dent in this country. He stated that he arrived in the 'United' States at New York September 4, 1962, and was refused permission to go ashore by the immigration officers, but that he went ashore with his "boss, the bosun" between 6 p.m. and 8 p.m. He further stated gen- 214 Interim Decision $479 erally his movements from town to town since his entry, gave his '- Social Security number, and stated that he had come to the United States only once before—as a member of the SS "Hindustan" in 1961 or 1962 at which time.he was refused shore leave at Norfolk, Vir- ginia. The affidavit is signed "Ah Chiu Pang" both on pages 1 and 2. A certification by Mr. Kan, the interpreter, on page 2 declares (in part), "I read the foregoing to Ab. Chia Pang and that he stated that understood were true and correct". Respondent's hearing was called for March 2, 1965, at Phila- delphia, Pennsylvania. He requested a continuance to get a lawyer. He was informed that the order to show cause had instructed him to appear with a lawyer if he 'wished to be represented. He was never- theless, given until March 12, 1965, to secure counsel. At the hearing on March. 12, and on March 19, 1965, respondent stated his name and where he resides, and he declined to answer all other questions on the ground that he was .invoking the Fifth Amendment. Mr. Harold Stokes, the investigator for the Immigration and Nat- uralization Service, testified that Allentown, Pennsylvania, is part of his District, and that he works out of the Philadelphia District of- fice. He testified: that he and another investigator were making a routine search in Allentown,•ecanse there had recently been a num- ber of desertions from Chinese. vessels in that district. Mr. Stokes identified respondent as the person, Ah Chin Pang, whom he found at Allentown. world g in the kitchen of the Rubes' Restaurant. First the investigators showed him their credentials and identified themselves as immigration officers. Respondent was asked for his passport or any other form of identification. He admitted that he had no papers, and that he was prepared to go with them. Mr. Stokes testified that respondent said in English, "I do not have any papers". Otherwise, the conversation between the investigators and respondent was through Mr. Low, a Chinese cook in the restaurant kitchen. who acted as interpreter. They next saw him in the Phila- delphia office, perhaps two days later, at which time a statement was taken from respondent. This statement was written in Mr. Stokes' handwriting' and taken, through Mr. Kan, a regular Immigration and Naturalization Service interpreter. Mr. Stokes testified that he placed respondent under oath, and respondent signed the affidavit. Mr. Stokes also testified. that the respondent was told that the affi- davit was a voluntary statement, that it could be used in any pro- ceeding against him, and that he did not -ask. to be 'represented by counsel. Counsel contends that Exhibit 2 is not properly identified or rela- ted to respondent, in that Mr. Ken, the interpreter, testified that he 215 Interim Decision #1479 did not specifically remember respondent, and could not identify re- spondent as the person who signed the statement; he could only testify as to the invariable procedure followed in all cases. Mr. Kan testified that he had worked as a part -time interpreter for the Immi- gration and Naturalization Service for approximately two and a half years, and is called to act as interpreter an average of "a couple times a month". He testified that he does not remember names, that he did not remember respondent by name, but that respondent spoke to him when he entered the hearing, saying, "We meet again", and this recalled hint to Mr. Kan. He testified that the initialc "A. C. P." on page 1 were placed there by respondent in the inter- preter's presence. Mr. Kan testifies that the procedure is always the same, that he reads back the questions or statement to the alien, and then signs his own- name, and the one who is questioned is also asked to sign his name. He testified that he always reads the entire affidavit including the printing and the handwriting, that the one being questioned is always advised that he may refuse to answer, and that any testimony he gives may be used against him. Counsel objects that Exhibit 2 and the signature thereon were not adequately identified by Mr. Han. We believe that the interpreter's testimony was clear and positive that prior to the signing the interpreter read the statement back to respondent, and that iespondent signed his name to the affidavit. Therspeeial inquirtofficer cited Title 8, Code of Federal Regula- tions, section 242.14(en providing that a special inquiry officer may receive in evidence any oral or written statement previously made by the respondent or any other person during an investigation which is material and relevant to any issue in the case. The Serviee Repro- sentstive in oral argument referred to section 225 and section 2137(a) of the Immigration and Nationality Act providing that any officer or employee of the Immigration Service authorized by regulation prescribed by the Attorney General, shall have power without war- rant to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States. We also commend for respondent's consideration section 287(b) regarding the au- thority of an officer or, employee of the Service to take and admini- ster oaths and take and consider evidence concerning the privilege of any person to reside in the United - States. Counsel stands upon the contention that the Government bears the _ burden of proof in deportation proceedings. Section 291 of the Im- migration and Nationality Act (8 U.S.C. 1361), however, provides: In any deportation proceeding under chapter 5 against any person, the burden of proof shall be upon such person to shot? the time, place, and manner of his entry into the United States, but in present- 216 Interim Decision. #1479 ing such proof he shall be entitled to the production. of his visa or other entry 'document, if any, and of any other documents and rec- ords, not considered. by the Attorney General to be confidential, per- taining to such entry in the custody of the Service. If such burden of proof is not sustained, such person shall be presumed to be in.the United States in violation of law. Respondent attempts to draw an analogy between the priliminary statement (Ex. 2) made by him and the preliminary interrogations in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 Led. 2d 977 (1964), and ilfassiah v. United States,. 377 U.S. 201, 84 S.Ct. 1199, 12 Led. 2d 246 (1964), -wherein it was held that an indicted de- fendant was entitled. to the aid of counsel following interrogation by police in an extra-judicial proceeding. Messiah, and Escobedo are criminal cases concerned with the admissibility of incriminating statements made by the defendants in absence of counsel and prior to trial. In Mania. the incriminating statement was obtained. by a federal agent after indictment while the accused was free on bail. The accused in the Embed° case made the incriminating state- ment during a police interrogation prior to indictment and after the police had denied his request to consult with his attorney. The police also failed to inform thi accused .of his right to remain silent. The convictions of both Messiah and Escobedo were re- versed on constituticeial grounds. It has been held. repeatedly that immigration proeiedings are civil rather than criminal, ifareelZo v. Bands, 349 U.S. 302, 99 L.ed. 1107 (1955), and that the rules of evi- dence applicable in courts of law in criminal proceedings need not be followed. U. Seas rel. Impastato T. O'Rourke, 211 F.2d 609 (8th Cir., 1954), and cases cited. (cert. den. 348 U.S. 827). All of counsel's arguments regarding the admissibility of Exhibit 2, the Government's burden of proof, and. the complaints regarding fair hearing and due procesa were made and rejected in Pereira V. Hurt, 169 F. Supp. 81 (D.C. N.Y., 1958), and Vlisidis v. Holland,. 150 F. Supp. 678 (D.C. Pa., 1957). The latter case particularly briefs exhaustively the issues of the civil nature of deportation pro- ceedings, adverse inferences from silence, and proof from official rec- ords. Pereira and Vlisidis were both alien seamen who jumped ship in the United States, who gave preliminary statements to immigrant inspectors, and who acquired counsel for hearings, following which they stood mute. On appeal they claimed that they had not been given due process and a fair hearing. Vlisidis quotes from Williams v. Butterfield, 145 F. Supp. 567 (D.O. Mich., 1956), as follows: The concept of due process is, of course, applicable to such a proceeding. but it does not necessarily embrace judicial rules of evidence. The plaintiff was afforded a hearing before the proper administrative agency ,. He tens given 312
217 Interim Decision *1479 opportunity to testify and present evidence. Me declined to exercise his right in this regard. Respondenthas not denied that he is an alien, nor has he asserted that he is lawfully in this country. To paraphrase *Vlisitlis, the alien who-stands' mute at his hearing stands in no better position than that of an alien who chooses to testify. Sooner or later he must show his right to stay in the United States, or he must depart. The trial attorney for the Immigration and Naturalization Service offered in evidence the passport alleged to be respondent's, and con- taining• some of the same information as that set forth in Exhibit 2. The special inquiry officer refused to accept the passport in evidence. In Pereira v. Murff i supra, this Board disregarded a passport of- fered -under similar circumstances, but the court stated, "I- find that the passportivas also properly introduced into evidence". Since the epeCiay inquiry officer declined to admit the passport,' of course, it is not. in evidence here. We find that the special inquiry officer's determination of deporta- bility was based upon reasonable, substantial and probative evidence, and that respondent's assertions that the proceedings were im- properly conducted, and that error was committed in the admission of evidence, are groundless. We find respondent to be an alien and deportable on the charge set forth in the order to show cause. The appeal will be dismissed. ORDER: It is ordered that the appeal be and is hereby dismissed.