445 F.2d 217 (D.C. Cir. 1971), 23339, Au Yi Lau v. United States Immigration and Naturalization Service

Docket Nº:23339, 23527.
Citation:445 F.2d 217
Party Name:AU YI LAU, Yim Tsz Ki*, Lam Sai Ting, Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. *Opinion and Judgment Vacated as to Yim Tsz Ki, July 8, 1971. TIT TIT WONG and Nei Ngan Chan, Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:March 19, 1971
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 217

445 F.2d 217 (D.C. Cir. 1971)

AU YI LAU, Yim Tsz Ki*, Lam Sai Ting, Petitioners,

v.

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

*Opinion and Judgment Vacated as to Yim Tsz Ki, July 8, 1971.

TIT TIT WONG and Nei Ngan Chan, Petitioners,

v.

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 23339, 23527.

United States Court of Appeals, District of Columbia Circuit.

March 19, 1971

Argued Sept. 15, 1970.

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Mr. David Carliner, Washington, D.C., for petitioners.

Mr. Charles Gordon, General Counsel, Immigration and Naturalization Service,

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of the bar of the Supreme Court of the United States, pro hac vice, by special leave of the court, with whom Messrs. Thomas A. Flannery, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for respondent. Mr. Paul C Summitt, Atty., Department of Justice, also entered an appearance for respondent.

Before FAHY, Senior Circuit Judge, and McGOWAN and LEVENTHAL, Circuit judges.

McGOWAN, Circuit Judge:

These two statutory review proceedings, although not consolidated in this court, were argued together and are suitable for disposition by one opinion. They involve deportation orders issued, after evidentiary hearings, by a Special Inquiry Officer of the Immigration and Naturalization Service (INS), which were affirmed by the Board of Immigration Appeals. Our review is circumscribed by the Congressional commands that it be limited to the administrative record, and that findings of fact therein be taken as conclusive 'if supported by reasonable, substantial, and probative evidence on the record considered as a whole.' 8 U.S.C. § 1105a. There is no issue in either case as to the adequacy of the evidence upon which the orders rest. The claim in each is, rather, that the evidence was the fruit of an illegal arrest. We look first to the factual circumstances from which each of these contentions derive.

I

No. 23, 339

Petitioners in this case are three Chinese seamen who are charged with deserting their ships in American ports. On October 31, 1967, immigration officers at the Washington, D.C., field office received an informant's tip that aliens unlawfully in this country were working in a restaurant located in the downtown area which had been under periodic surveillance by the Washington immigration office for the preceding year. In response to this tip, some seven of the officers walked to the restaurant, which was a few blocks from their office. They had no warrants because they lacked information of the requisite degree of specificity.

Upon their arrival, some of the officers stationed themselves at the main exits of the restaurant. Three of the officers entered the restaurant by way of the front entrance, and spoke to the assistant manager who was in charge at the time. They identified themselves, told him the purpose of their visit, and asked his permission to enter the restaurant in order to talk to the employees. The assistant manager agreed to their coming into the restaurant, but there was some disagreement as to whether he permitted them to conduct their investigations in the kitchen. The Board of Immigration Appeals accepted the finding of fact by the Special Inquiry Officer that the officers had received such an invitation.

As the officers proceeded towards the kitchen, they observed a person of Chinese extraction, dressed in a blue denim uniform, scurrying through the dining room to the main entrance door. One officer (Burns) followed him to the door, stopped him, identified himself as an immigration officer, and asked the individual, later identified as petitioner Yim, to accompany him to the kitchen. As the two headed back toward the kitchen, a second employee, petitioner Lam, also dressed in kitchen garb, was met by them as he appeared to be hurrying towards the front door. He was requested by Officer Burns to go to the kitchen for a talk. Lam did so momentarily, but suddenly darted through a side door, only to encounter Officer Lamoreaux who asked him if he was off a ship and received an affirmative answer. Petitioner Lam then was sent to the locker room to change his clothes before being taken to the immigration office. When Officer Burns and petitioner Yim arrived in the locker room of the kitchen, Burns asked Yim if he had jumped a ship, to which Yim replied that he had.

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During this time, two officers were questioning the employees in the kitchen, when two of the workers dropped their culinary utensils and darted out the rear door. One of the officers gave chase and halted one of the fleeing kitchen workers, later identified as petitioner Au. With the aid of another employee, who acted as interpreter, Au was questioned immediately by the officer who detained him, and admitted that he had 'jumped' ship. The officer then took him to the locker room where they joined the other petitioners. All three petitioners were searched, and the officers seized seamens' documents from each petitioner which indicated that in fact they had overstayed their leave.

The three petitioners then accompanied the officers to the immigration office, where they awaited the arrival of an interpreter. 1 In the presence of the interpreter, sworn statements were taken from each of the three in which they admitted that they had come to this country as crewmen, and were illegally in the United States. 2

No. 23, 527

On November 7, 1967, petitioners Wong and Chan, persons of Chinese extraction, accompanied Mr. Wong's ailing brother to the Washington Hospital Center where the latter made application for medical treatment. 3 The receptionist at the hospital doubted the sick man's right to be in this country, and called the Washington immigration office. Officers Taylor and Reissig were dispatched to the hospital where, upon arrival, Officer Taylor went inside to question the sick man, and Officer Reissig remained in their government car by the front entrance.

Once inside the hospital, Officer Taylor went to a waiting room where he was to interrogate the applicant for medical assistance. However, when he identified himself to the receptionist as the immigration officer for whom the patient and two other Chinese (see note 3 supra) men had been waiting, and started talking to the Chinese patient at the desk, he noticed that the two petitioners rose from their chairs and left the room. Officer Taylor testified that he thought there was something odd about their departure; accordingly, when he had concluded the task of interrogating the prospective patient-- a questioning that lasted some fifteen minutes, resulting in the clearance of petitioner Wong's brogher-- he thought he 'would make quiet inquiries' and see if he could find the two men who had left.

Officer Taylor advised his colleague he was interested in these two Chinese and intended to look for them in the hospital 'so that he could talk to them.' He then spent approximately fifteen minutes more searching several corridors and other waiting rooms in the hope of finding the two petitioners. He stepped out of a side door of the hospital onto a

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sidewalk, and spotted petitioners by the hospital parking lot, about half a block away. He saw them looking back, and when they saw him they quickened their pace on into the parking lot, and broke into a jog or 'sort of dog trot, ' glancing back at Officer Taylor as they went.

For a while they got out of his field of vision, but then he saw them inside a car parked in the lot. As Taylor approached the car, one of the men, who was in the back seat, attempted to roll up the car windows and lock the car doors. The other was in the front seat, and tried to start the car. Due to what was described by Officer Taylor as a basic unfamiliarity with the vehicle, neither petitioner was successful at his task. Taylor then attempted to question them through an open window, but soon realized that there was an insurmountable language barrier. He decided to enlist the support of Officer Reissig. In order to insure that petitioners would not leave, Officer Taylor took their car keys and asked a nearby hospital guard to watch the car for a moment. Officer Taylor located Officer Reissig, and the two returned about five to seven minutes later, bringing their car to a halt in front of the one in which the two petitioners were seated.

Several more minutes elapsed while the two officers again tried unsuccessfully to communicate with the petitioners. At this point, they sought the aid of a passing Chinese student, who agreed to act as an interpreter. The Chinese student began his interrogation under the supervision of Officer Reissig. In the meantime, Officer Taylor decided that it might be beneficial to return to the hospital to determine whether the other Chinese men in the building were related to petitioners. After a ten minute search, he found Mr. Ling, who was the owner of the car.

Mr. Ling agreed to accompany Taylor to the parking lot in order to identify the petitioners. Upon returning to the lot, Mr. Ling identified the petitioners as his friends, but refused to aid in their interrogation. However, at that time, Officer Reissig informed Officer Taylor that the Chinese student had discovered that the petitioners were in the country illegally. According to the findings of the Special Inquiry Officer, the student then left the scene of the interrogation. 4 The two officers then arrested petitioners, and transported them to the Washington headquarters. There, petitioners turned over to the investigators certain seamens' papers, and also made statements in response to interrogation. These statements were not, however, regarded by the Special Inquiry Officer as competent evidence because of what he found to be the failure of the interrogators to comply with INS regulations requiring advice of right to counsel.

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II

At the hearings before the...

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