411 F.2d 683 (D.C. Cir. 1969), 21784, Yam Sang Kwai v. Immigration and Naturalization Service

Docket Nº:21784.
Citation:411 F.2d 683
Case Date:February 17, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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411 F.2d 683 (D.C. Cir. 1969)

YAM SANG KWAI, Petitioner,



No. 21784.

United States Court of Appeals, District of Columbia Circuit.

February 17, 1969

Argued Oct. 21, 1968.

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Mr. Jack Wasserman, Washington, D.C., for petitioner.

Mr. Charles Gordon, General Counsel, Immigration & Naturalization Service, of the bar of the Supreme Court of the United States, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker, Asst. U.S. Atty., were on the brief, for respondent.

Before WRIGHT, MCGOWAN and TAMM, Circuit Judges.

TAMM, Circuit Judge.

At about 6:00 p.m. on the evening of October 12, 1967, petitioner's place of business was surrounded by officers of the respondent with the purpose of interrogating any aliens therein. Certain officers were stationed at both the entrance and the exit. None knew of the petitioner's existence nor of the identity of any of the patrons before entering. One officer, Officer Podrasky, entered the restaurant and confronted the petitioner with certain questions concerning petitioner's right to be in the United States. Because of a language difficulty petitioner (being able to converse solely in Chinese-- Foochow dialect) sent for a

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friend to act as an interperter. It should be noted that Mr. Kwai's 'friend, ' a Mr. Lang Young, is a China-born, United States citizen having resided in this country since 1941. Mr. Young, although not a professional interpreter, certified that he had received an eighth grade education in China and that he was a qualified interpreter of Chinese-- Foochow dialect. From the moment of his arrival at his friend's restaurant, he was present throughout all the proceedings here at issue up to, and including, the hearing before the Special Inquiry Officer. While waiting for Mr. Young, the petitioner went about his business of preparing food and managing his carryout shop. When the friend arrived the petitioner produced certain documents and gave them to Podrasky. One document was an order of supervision, the other, a warrant of arrest. The order of supervision (which it appears that petitioner was holding for a friend) was in the name of Yung Ing Wa. The warrant of arrest, in the name of Yam Sang Kwai, indicated that it had been issued in August, 1965, by the District Director of the New York District but had not yet been executed. However, a copy of this warrant was attached to the Service's case jacket and it reveals that the warrant was executed November 17, 1965. In that the documents conflicted as to the person named thereon and, as Podrasky did not know which document referred to the petitioner, he required the petitioner to close his restaurant and accompany him to his office. Here he was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was sworn upon an affidavit in which he related his present status as an alien; to wit, that he was born on May 5, 1928, in Foochow, China; he is a citizen of China; he had previously been deported from the United States on November 17, 1965; he had not reapplied for admission after that date; he was not granted permission to re-enter the United States; and that he had attempted to re-enter the United States, at Philadelphia, on September 20, 1966-- refused entry, and entered the United States on September 26, 1966, at New York City. This affidavit was read to petitioner by his friend, Mr. Young. At 8:00 p.m. Mr. Kwai was served with a warrant of arrest and an order to show cause why he should not be deported. A hearing was held on October 23, 1967, on the order to show cause which charged the petitioner with having entered the United States at Philadelphia, Pennsylvania on September 20, 1966, and that he was subject to deportation on the basis that he had previously been deported and had not received permission from the Attorney General to re-enter.

At the hearing petitioner was represented by experienced counsel. A motion was made to suppress petitioner's affidavit and denied by the Special Inquiry Officer. Petitioner, upon advice of counsel, elected to remain mute. Evidence was presented showing that petitioner had previously been deported in 1965, that he sought entry at Philadelphia on September 20, 1966, and was denied, and that he re-entered the United States at New York City on September 26, 1966, without permission. At the close of the evidence the Special Inquiry Officer, prior to issuing his order, suggested that the government move to amend the order to show cause to conform with the proof. Counsel for petitioner noted that he was entitled to an adjournment in this regard. An adjournment was offered but waived by counsel, an objection to the amendment being retained. 'The special inquiry officer shall advise the (petitioner) * * * that he may have * * * time within which to meet the additional * * * allegations. The (petitioner) shall be required to state then and there whether he desires a continuance. * * *' 8 C.F.R. § 242.16(d) (1968). The motion to amend was made and granted. The order of deportation entered.

The petitioner appealed this ruling to the Board of Immigration Appeals and on March 19, 1968, they dismissed the appeal on the grounds that there was a waiver of written notice to make the amendment to the order to show cause

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since counsel had waived adjournment in that regard; that, based upon the conflicts in the two documents which petitioner had given Podrasky, the officers were justified in arresting petitioner at the restaurant without a warrant; and that the motion to suppress petitioner's affidavit was properly denied. This appeal followed. We affirm.

The central question on this appeal is whether there was a valid arrest of the petitioner at the restaurant. In determining that issue there is one point over which there can be no dispute; that is, that prior to confronting petitioner in in the restaurant there was no probable cause (under applicable standards as applied to the statute under which respondent must act) to arrest anyone. Since we hold that there was a valid arrest at the restaurant, what transpired prior to entering becomes critical.

It is the petitioner's contention that his initial arrest was effected at the time the restaurant was surrounded and his liberty of movement constrained. We cannot agree. 'It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime * * *. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person * * *.' Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). Thus the Supreme Court has verbally circumscribed the outer limits of 'seizure' under the fourth amendment to mean an accosting of an individual and a restraint of his liberty to depart. We take this to mean that a 'seizure' must be personal, not general; that it must contain the element of awareness on the part of both the protagonist and the antagonist; and it must restrain the liberty of the individual to the extent that he is not free to leave. An arrest, under the fourth amendment, cannot be effected in a vacuum. There must be knowledge of the situation on behalf of both the police and the suspect. There can be no seizure where the subject is unaware that he is 'seized.' To hold otherwise would be to give substance to an ex parte arrest-- a concept we must disregard. At no time, prior to entering the restaurant, does the record indicate that any of the patrons of the restaurant was aware of what was transpiring in the street outside. The fact that they might have been stopped had they attempted to leave is not before us. The Supreme Court has said that 'only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen (or alien) may we conclude that a 'seizure' has occurred. * * * ' Terry v. Ohio, supra, at 19, 88 S.Ct. at 1879, n. 16. Suppose, for example, that word of a gambling operation is received by a police officer and, with the aid of his fellows, he closes off both the entrances and exits to that building housing the operation-- can it be argued, as the petitioner argues here, that should that activity be in the basement of this very courthouse, each member of the judiciary, herein, is under arrest? Yet this is the very point the petitioner seeks to make. He urges that, prior to any personal confrontation and absent any personal awareness on his part of the existence of the respondent's officials, he was under arrest. If this be true then perhaps as one sits reading this opinion in the quiet of his office he may be unknowingly under arrest. Such a contention is both chilling in its implication and absurd in its application. We therefore disregard it.

Petitioner next contends that probable cause to arrest did not exist even after the production of the conflicting documents. We cannot agree. 'Any officer * * * of the Service * * * shall have power without warrant * * * to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States * * *.' 8 U.S.C. § 1357(a)(1) (1964). This statute, plain on its face, gives the officers of the respondent the authority to interrogate any alien as to his right to be in the United States. It does nothing

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more. It does not authorize interrogation of the alien concerning criminal matters, nor does it condone harassment. Officer Podrasky, upon entering the carryout, confronted the petitioner, Yam Sang Kwai, obviously a person of foreign descent, with questions concerning his right to be in the United States...

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