Bigby v. U.S. I.N.S., 93-2222

• Decision Date: 31 May 1994
• Docket Number: No. 93-2222,93-2222
• Citation: 21 F.3d 1059
• Parties: Paul BIGBY, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1059

21 F.3d 1059

Paul BIGBY, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-2222.

United States Court of Appeals Eleventh Circuit.

May 31, 1994.

David F. Vedder, Wells, Revis, Vedder & Elton, Daytona Beach, FL, for petitioner.

Donald A. Couvillon, R. Evans, Charles E. Pazar, Office of Immigration Litigation, Civil Div., Dept. of Justice, Washington, DC, for respondent.

Petition for Review of an Order of the Board of Immigration Appeals (Florida Case).

Before ANDERSON and BIRCH, Circuit Judges, and ALBRITTON ^*, District Judge.

ANDERSON, Circuit Judge:

Petitioner Paul Bigby appeals from a final order of deportation entered by the Board of Immigration Appeals (BIA). We find that Bigby's Fifth Amendment right against self-incrimination was properly asserted by his attorney under the circumstances, and therefore reverse the BIA's decision and remand the case for further proceedings.

Bigby, a native of Jamaica, was charged with deportability for entering the United States without inspection ¹ and for being convicted of a crime relating to controlled substances. ² A telephone hearing was held before an immigration judge, at which Bigby denied the allegations contained in the Order to Show Cause. The government was thus required to prove his deportability. The first step in the proof is establishing petitioner's alienage. The INS trial counsel attempted to do so by directly asking Bigby if he was a United States citizen. After the question was posed, Bigby's attorney asserted that the inquiry violated petitioner's Fifth Amendment right against self-incrimination. In objecting, counsel was clear that the invocation of the privilege was based on the fear that Bigby may place himself in danger of prosecution for criminal offenses that include alienage as an element. The immigration judge noted the objection but found that "the right of self-incrimination is not proper at this time." R. at 54-55. The INS attorney did not question the propriety of Bigby's attorney having invoked the privilege. Bigby then replied that he was not a U.S. citizen. The next question asked whether Bigby was a citizen of Jamaica; his attorney again asserted the Fifth Amendment privilege and again was overruled by the immigration judge. Petitioner replied that he was in fact a Jamaican national. R. at 56-57.

At this point, the judge asked Bigby's counsel if he planned to raise similar objections to questions relating to the INS's next two allegations: that Bigby had entered the country at an unknown place on or about October 20, 1985, and that he entered the country in an unknown manner. Bigby's attorney replied that he would object, and the judge said that he would honor those objections. R. at 57. Thus the status of the hearing was that the INS had elicited proof (over a claim of privilege) that Bigby was an alien. Petitioner's testimony was the only evidence presented regarding alienage. Bigby's counsel moved to strike the allegedly compelled testimony and argued that, consequently, the proceeding was due to be dismissed because the government had failed to carry its burden of proving alienage. The motion was denied. Under 8 U.S.C. Sec. 1361, a showing of alienage shifts the burden of proof to petitioner to show lawful entry into and presence in the United States. Bigby adduced no evidence in his behalf, and was found deportable. R. at 44.

Petitioner appealed his case to the BIA, arguing inter alia that his right to a fair hearing was denied because the proceeding before the immigration judge was conducted by telephone, rather than in the judge's physical presence; and that his Fifth Amendment right against self-incrimination was violated. The BIA recognized that the Ninth Circuit has held that a telephonic deportation hearing was not authorized under the Immigration and Nationality Act. Purba v. INS, 884 F.2d 516 (9th Cir.1989). The Board, however, noted that Purba was decided in another jurisdiction and found its reasoning unpersuasive. R. at 5. Regarding the Fifth Amendment claim, the BIA observed that the privilege was invoked by Bigby's attorney rather than by the petitioner himself. Because the right against self-incrimination is "personal," the Board found that Bigby's failure to assert the privilege himself resulted in its waiver. R. at 6. The BIA therefore confirmed Bigby's deportability, finding it unnecessary to address whether the concession of alienage was properly the subject of the Fifth Amendment privilege. Id. We have jurisdiction over appeals from final orders of deportation pursuant to 8 U.S.C. Sec. 1105a(a).

On appeal, the INS asserts that the BIA's holding on the Fifth Amendment issue was correct, arguing that the privilege against self-incrimination is properly invoked only by the witness, not his attorney. Bigby disagrees, maintaining that counsel's objection was proper and timely, was acknowledged (although overruled) by the immigration judge, and was not challenged by the INS attorney at the time it was made. Bigby also challenges the BIA's holding that the telephonic hearing was proper under the applicable statute.

DISCUSSION

A. Invocation of the Fifth Amendment Privilege

The INS argues that the Fifth Amendment privilege is personal and cannot be invoked by counsel. In this case, we need not rule on that general proposition. We assume arguendo that it is true as a general proposition. We decide only that, under the particular circumstances of this case, the invocation of the privilege was effective. The privilege in this case was clearly invoked, albeit by counsel rather than Bigby himself. The INS did not object to the privilege having been invoked by counsel. The immigration judge recognized that the privilege had been invoked and noted the objection, but overruled it and required Bigby to testify. We conclude that the only reasonable reading of this record is that all parties, counsel, and the court treated the privilege as having been invoked. Had an objection been made to invocation of the privilege by counsel, it is clear that Bigby would have personally raised the privilege. On these facts, we hold that the Fifth Amendment privilege was effectively invoked.

The argument of the INS is based on the proposition that the Fifth Amendment privilege against self-incrimination is personal to the witness. See, e.g., Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548 (1973). Although this is a well-recognized general rule, the principle is derived from cases fundamentally unlike the Likewise, our decision in United States v. White, 846 F.2d 678 (11th Cir.), cert. denied, 488 U.S. 984, 109 S.Ct. 538, 102 L.Ed.2d 568 (1988), relied on by the INS, addressed a fundamentally different situation. In White, several criminal defendants had earlier given civil depositions regarding events related to the criminal cases. The depositions were taken under a standard stipulation that most objections need not be made until the time of trial. The defendants challenged the admissibility of statements made in the depositions, claiming that they had not invoked their right against self-incrimination because it was understood that objections need not be raised during the deposition. We held that the defendants could not seek shelter under the Fifth Amendment, citing three significant facts: (1) a witness who testifies rather than invoking the Fifth Amendment generally waives the privilege; (2) the stipulation in the civil depositions was designed to allow evidentiary objections at the time of trial, which are not equivalent to assertions of privilege; (3) the defendants and their attorneys did assert their Fifth Amendment privileges at other times during the depositions, suggesting that they understood that the stipulation did not protect their Fifth Amendment rights. White, 846 F.2d at 690. The INS argues that this case is like White because Petitioner relied on evidentiary objections to protect his assertion of privilege. We disagree. Bigby's counsel clearly was not just making evidentiary objections; he was invoking, on his client's behalf, the Fifth Amendment privilege against self-incrimination. The simple failure of Bigby himself to utter the words does not render his attorney's action a mere evidentiary objection. Neither did Bigby ever answer a contested question without first raising (through his attorney) his Fifth Amendment privilege, unlike the defendants in White. The INS can claim no support from that case.

                present situation.  For example, Couch held that no privilege existed against the production of documents held by the accountant of a taxpayer claiming the privilege.  The Fifth Amendment prohibits compelling a witness to testify against himself, but does not bar the eliciting of incriminating statements from another.  See Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 572, 57 L.Ed. 919 (1913).  Because the government in Couch was not seeking information directly from the taxpayer, she could not invoke her Fifth Amendment right to prevent the production of documents in the possession of another.  Couch, 409 U.S. at 328, 93 S.Ct. at 616.   Thus the observation in Couch that the privilege is personal is not applicable to the instant situation. 3
                

The BIA noted that the District Court for the Southern District of Florida--the court with jurisdiction over the place of venue of Bigby's case--has held that the Fifth Amendment privilege must be invoked by the witness himself, rather than his attorney, when "the interrogating party stands on the requirement that the witness must personally invoke the privilege." State ex rel. Butterworth v. Southland Corp., 684 F.Supp. 292, 294-95 (S.D.Fla.1988). We pass no judgment as to the correctness of Southland, because its holding applies to a situation significantly different than that in the instant case: when the questioning party insists that the witness personally invoke the...