Roman Babula, Zdislaw Drzymala, Abigniew Weszandize, Josef Pilat, Stanislaw Kowalczuk, Andrzej Lonc v. Immigration and Naturalization Service

665 F.2d 293

• Court: Court of Appeals for the Third Circuit
• Decided: December 28, 1981
• Docket: 80-2596
• Status: Published

Opinions

OPINION OF THE COURT

SEITZ, Chief Judge.

Six Polish nationals petition for review of an order of the Board of Immigration Appeals, holding them deportable for violating 8 U.S.C. § 1251(a)(2) & (9) (1976). This court has jurisdiction under 8 U.S.C. § 1105a (1976).

I.

In late October, 1978, the Newark, New Jersey office of the Immigration and Naturalization Service (INS) received information from an unidentified source that H&H Industries of Pennsauken, New Jersey was employing illegal aliens. In early December, the Newark office received a memorandum, prepared four months earlier by the Philadelphia INS office, stating that a “reliable source” had informed the Philadelphia office H&H employed illegal aliens. The memorandum named seven Polish aliens and stated that the informant had said that H&H employed additional undocumented aliens, mostly Poles. Record checks by the Newark office in December revealed that six of the seven named aliens would not be subject to arrest and deportation. In early January an agent went to H&H to survey the site, principally to determine whether the INS could carry out an “area control operation.” He determined that one would be feasible.

On February 1,1979, six INS agents went to H&H to look for aliens in violation of their immigration status. Upon arrival at H&H at about 6:00 p. m., three agents remained at the exits to the factory to prevent anyone from leaving the factory. The other three agents entered the factory. Two of them spoke to the two persons in charge, the general manager, Elaine Mor-gandale, and the night foreman, Romuald Harburda. The agents inquired about the seventh person on the list of names contained in the memorandum from the Philadelphia office. They found that that person had left H&H’s employ more than a year before.

The three agents inside the factory then began interrogating the employees. The agents asked each employee in Polish whether he was a Polish national, had a green card, or had come to the United States on a tourist visa. Ten workers, including the six petitioners, were arrested and taken to the Newark INS office. There each petitioner was advised of his rights, and each signed a waiver of rights. Five petitioners made statements that were used to show deportability at the hearing before the immigration judge. Petitioner Kowalczuk did not make a statement, but after his arrest his father gave the INS agents Kowalczuk’s passport and entry document, which were sufficient to prove Kow-alezuk’s deportability.

The immigration judge, after extensive hearings, issued deportation orders for the six petitioners. The Board of Immigration Appeals affirmed. This petition for review followed.

II.

Petitioners raise four issues for review: (1) whether the agents violated their fourth amendment rights; (2) whether the agents violated 8 U.S.C. § 1357(a)(1) & (2) (1976), which limits the authority of INS agents to question and arrest suspected aliens; (3) whether the agents violated the INS’s regulations, 8 C.F.R. § 287.3, 32 Fed.Reg. 6260 (April 21, 1967) (subsequently amended), which require certain warnings to be made to arrested aliens; and (4) whether the exclusionary rule should apply to deportation hearings.

III.

Petitioners’ claims under the fourth amendment and section 1357(a)(1) principally raise the issue of the reasonableness of the initial questioning of petitioners in the factory. The claims based on section 1357(a)(2) and section 287.3 principally raise the issue of the timing of petitioners’ arrests.

A.

The fourth amendment provides that, “The right of the people to be secure in their persons .. . against unreasonable searches and seizures, shall not be violated .....” The protections of the fourth amendment apply to seizures that do not amount to a traditional arrest. See Terry v. Ohio, 392 U.S. 1, 16-19 & n.15, 88 S.Ct. 1868, 1877-78 n.15, 20 L.Ed.2d 889 (1968). The constitutionality of such seizures depends upon “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Id. at 19, 88 S.Ct. at 1878.

Eight U.S.C. § 1357(a)(1) provides that any INS agent may, without a warrant, “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.” An INS agent’s authority under § 1357(a)(1) to interrogate a person believed to be an alien is limited by the restrictions of the fourth amendment. Lee v. INS, 590 F.2d 497, 499-500 (3d Cir. 1979). In Lee, this court formulated the test that would be applied to challenges of power under section 1357(a)(1) as whether the questioned conduct was “ ‘ “reasonably related in scope to the justification for [its] initiation.” ’ ” Id. at 502 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) (quoting Terry v. Ohio, 392 U.S. at 29, 88 S.Ct. at 1884)).

Since the same standards govern the va- • lidity of a seizure under section 1357(a)(1) as under the fourth amendment, questioning that is permissible under the fourth amendment is also permissible under section 1357(a)(1).

In Lee, an INS agent was walking to his car in a shopping plaza when he noticed two men speaking Chinese. They were walking towards an adjacent shopping center in which there was a Chinese restaurant that the agent knew had employed illegal aliens in the past. Each man wore a white shirt of the type normally worn by kitchen employees. The court held that these observations were sufficient to raise a reasonable suspicion that the two men were aliens, and to raise an initial suspicion that they might : be illegal aliens employed by the restaurant. 590 F.2d at 498, 502.

These suspicions justified the agent’s approaching the two men and questioning them about their alienage. At this point there was no show of force other than that inherent in the agent’s identification of himself as an immigration officer. While the agent questioned one of them, the other, Lee, became very nervous and started to walk away. This court held that Lee’s conduct would justify the agent’s reasonable suspicion that Lee was an illegal alien, and justify the agent’s asking Lee to stop so the agent could ask a few questions. Id. at 502.

We believe that the conduct of the INS agents at H&H Industries, although not exactly analogous to the conduct of the agent in Lee, meets the standards set forth in Lee. The agent’s observations in Lee justified the initial questioning because the agent reasonably believed (1) that the two men probably worked for an employer who the officer knew had employed illegal aliens in the past, and (2) that the two men were fluent in a language other than English, from which the agent could infer that they might not be native English speakers. The agents at H&H knew the following: (1) that all the persons in the factory definitely worked for an employer who an informant had stated employed illegal aliens, and (2) that the night foreman, Harburda, spoke English with difficulty, but spoke Polish fluently. Moreover, before conducting any questioning, the agents inquired about the one Polish alien that the informant had named and that the agents had reason to believe they could arrest. Elaine Morgan-dale told them that he was no longer employed at H&H, but had worked there previously. This information added credibility to the informant’s assertion that H&H employed illegal aliens.

The primary factual difference between the suspicions that the agent in Lee had and the suspicions that the agents at H&H had is that the suspicions in Lee were based on observations of each person questioned, whereas in this case the agents had observed nothing specifically about each person questioned, but rather based their suspicions on the milieu in which the workers were found. We hold that the tip from a reliable source about the employment of illegal Polish aliens, combined with indicia that H&H did employ Polish aliens, are sufficient to justify the minimally intrusive questioning that the agents conducted. Although “some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure, [there is] no irreducible requirement of such suspicion.” United States v. Martinez-Fuerte, 428 U.S. 543, 560-61, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976). Government agents may stop a vehicle “if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975). Thus, persons in cars may be questioned about their alien status although there is no suspicion that a given individual is an alien. We think the questioning of petitioners was no more intrusive than such questioning of persons in a car would be.

The likelihood that individualized suspicion is not required is enhanced when “we deal neither with searches nor with the sanctity of private dwellings.” Martinez-Fuerte, 428 U.S. at 561, 96 S.Ct. at 3084. Neither is at issue here. Additionally, police stops that are based on unconstrained discretion are less reasonable than methodical stops. Cf. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) (roadblocks legitimate where random stops would not be). The agents at H&H questioned all the employees rather than a selection of them. Thus, although questioning without individualized suspicion raises serious constitutional concerns, we think that the facts of this case present one of the those instances when such questioning is permissible. Our holding does not imply any disagreement with Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1069-70 (7th Cir.), modified en banc as to remedy only, 548 F.2d 715 (7th Cir. 1976), that area control operations that involved late night warrantless searches of living quarters offended the fourth amendment’s dictates. That issue is not presented here.

As the agents questioned employees, petitioners Babula and Weszandize attempted to flee. The agents inside the factory restrained them and asked about their alienage. The petitioners’ conduct matched that of the petitioner in Lee, in which we held that nervousness and an attempt to flee justified a brief detention while the agent asked a few questions. Here, the aliens’ attempted escape led the agents to believe reasonably that Babula and Weszandize were illegal aliens, and justified their brief restraint while the agents asked the three questions necessary to establish probable cause to arrest.

The parties dispute whether Morgandale or Harburda consented to the search for aliens. Neither the immigration judge nor the Board of Immigration Appeals resolved the factual conflict over whether actual consent had been given. We need not decide it either, because petitioners do not have standing to assert the fourth amendment rights of the factory owner. See Illinois Migrant Council v. Pilliod, 398 F.Supp. 882, 890, 900 (N.D.Ill.1975), aff’d, 540 F.2d 1062 (7th Cir.), modified en banc as to remedy only, 548 F.2d 715 (7th Cir. 1976). Cf. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (no fourth amendment right if no “legitimate expectation of privacy in the invaded place”).

Thus, the agents did not violate any rights petitioners have under the fourth amendment or section 1357(a)(1).

B.

Eight U.S.C. § 1357(a)(2) provides that any INS agent may, without a warrant, “arrest any alien in the United States, if he has reason to believe that the alien [is] in violation of any [law] or regulation [regarding the admission, exclusion, or expulsion of aliens] and is likely to escape before a warrant can be obtained. . . . ” At the time of petitioners’ arrests, 8 C.F.R. § 287.3 provided in relevant part that:

An alien arrested without warrant of arrest shall be advised of the reason for his arrest and his right to be represented by coun[sel] of his own choice, at no expense to the Government. He shall also be advised that any statement he makes may be used against him in a subsequent proceeding and that a decision will be made within 24 hours or less as to whether he will be continued in custody or released on bond or recognizance.¹

32 Fed.Reg. 6260 (April 21, 1967). The agents did not give the section 287.3 warnings to petitioners until they arrived at the Newark office.

Petitioners contend that the agents arrested them at the time the agents surrounded the factory. If so, then the agents violated section 1357(a)(2) by arresting each petitioner without probable cause, and they violated section 287.3 by asking the three questions before the required warnings were given. Petitioners rely on Yam Sang Kwai v. INS, 411 F.2d 683 (D.C.Cir.) (opinion of Tamm, J.), cert. denied, 396 U.S. 877, 90 S.Ct. 148, 24 L.Ed.2d 135 (1969), for the proposition that an arrest has both an objective and a subjective element: the police action must restrain the liberty of the arrested person to leave, and the arrested person must be aware that he cannot leave. See 411 F.2d at 686 (interpreting Terry v. Ohio, 392 U.S. at 19, 88 S.Ct. at 1878). Petitioners claim both elements were present at the time the agents surrounded the factory.

Petitioners’ argument incorrectly relies on the Yam Sang Kwai test.² That test is applicable to defining what is a seizure for purposes of fourth amendment analysis rather than to defining what is an arrest for purposes of analysis under section 1357(a)(2) and section 287.3. See 411 F.2d at 687 (opinion of Tamm, J.) (fourth amendment must be complied with prior to time when probable cause to arrest exists); id. at 689 (McGowan, J., concurring in the result) (there is “important and discernible distinction between arrest on probable cause, and temporary detention for interrogation,” although both are subject to fourth amendment).

We hold that under section 1357(a)(2) and section 287.3, “arrest” means an arrest upon probable cause, and not simply a detention for purposes of interrogation. Not only does this construction give “arrest” its normal meaning, but we believe that this is the only interpretation of that statute and regulation that makes sense. Otherwise, for example, the agent who arrested the petitioner in Lee would have violated both section 1357(a)(2) and section 287.3 when he started to ask questions, because, as subsequent events showed, Lee was not free to walk away. As we held in Lee, the agent’s actions were subject to fourth amendment scrutiny at the point at which the agent first approached the aliens. However, Lee was not arrested until later, at the time when the agent had established probable cause to arrest. See 590 F.2d at 500. The interpretation urged by petitioners would preclude INS agents from interrogating suspected aliens without arresting on probable cause.

We are aware that our holding that petitioners were not arrested until they answered the three questions effectively precludes any illegal alien subject to a similar area control operation from avoiding arrest. Whether or not the petitioners knew the agents had the building surrounded, it is quite clear that, once the building was surrounded, arrest was inevitable. Each petitioner could flee, as petitioners Babula and Weszandize did, but such action gives an agent a reasonable suspicion that justifies further detention. Each could answer the questions, as the other four petitioners did, thereby giving probable cause to arrest. Or each could remain silent and refuse to produce evidence of his identity, although this too would justify an agent’s further suspicion of illegal alienage. See Marquez v. Kiley, 436 F.Supp. 100, 114 (S.D.N.Y.1977); Illinois Migrant Council v. Pilliod, 398 F.Supp. 882, 898 (N.D.Ill.1975), aff’d, 540 F.2d 1062 (7th Cir.), modified en banc as to remedy only, 548 F.2d 715 (7th Cir. 1976).

In short, although surrounding the factory and preventing any escape did lead to arrest, petitioners were not in fact arrested until they had answered the three questions, at which time the arresting agent had probable cause. No more questions were asked until the petitioners had been given the warnings of section 287.3. The agents detained all the persons in the factory for brief questioning, but the only persons arrested were the ten whose answers to the questioning established probable cause to arrest.

Thus, we hold that the conduct of the agents violated no rights of the petitioners. Accordingly, we need not discuss the applicability of the exclusionary rule to deportation hearings.

IV.

The Board of Immigration Appeals’ order will be affirmed and the petition for review will be denied.

1 . As currently amended, § 287.3 provides for the same warnings, but only after an examining officer has determined that deportation proceedings are warranted. 8 C.F.R. § 287.3 (1981).

2 . Even if the Yam Sang Kwai test were applicable, petitioners would have failed to meet it, because they did not prove the subjective element. The Board of Immigration Appeals found that, “there is no evidence that any of the [petitioners] even knew the investigators were [positioned at the exits to the factory.]” Petitioners dispute this fact vigorously, but cite very little in support of their argument. We must accept the Board’s findings of fact if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” 8 U.S.C. § 1105a(a)(4) (1976); see Bastidas v. INS, 609 F.2d 101, 104 (3d Cir. 1979). The finding that the petitioners were unaware that they were surrounded may be inferred from the fact that the agents who blocked the exits remained outside the factory. Petitioners rely on a statement by Harburda that the agent in charge told him to “make sure you tell your people nobody run, nobody can go outside, because we got five people from the Immigration Office cover up all doors.” Har-burda did not testify, however, that he actually told any employees that they were not free to leave.