468 F.2d 1123 (D.C. Cir. 1972), 71-1569, Cheung Tin Wong v. United States Immigration and Naturalization Service

Docket Nº:71-1569.
Citation:468 F.2d 1123
Party Name:CHEUNG TIN WONG, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:August 31, 1972
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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468 F.2d 1123 (D.C. Cir. 1972)

CHEUNG TIN WONG, Petitioner,

v.

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 71-1569.

United States Court of Appeals, District of Columbia Circuit.

Aug. 31, 1972

Argued April 11, 1972.

Page 1124

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

Mr. Murray R. Stein, Atty., Dept. of Justice, of the bar of the Court of Appeals of Maryland, pro hac vice, by special leave of Court, with whom Messrs. Henry E. Petersen, Acting Asst. Atty. Gen., and George W. Masterton, Atty., Dept. of Justice, and Harold H. Titus, Jr., U. S. Atty., were on the brief, for appellee.

Before McGOWAN and MacKINNON, Circuit Judges, and FRANK A. KAUFMAN, [*] District Judge, United States District Court for the District of Maryland.

MacKINNON, Circuit Judge:

This is a petition for review of a decision of the Board of Immigration Appeals denying an appeal from a deportation order issued against petitioner by a Special Inquiry Officer. The basis for the deportation order was documentary evidence from the files of the Immigration and Naturalization Service (INS) which indicated that petitioner was a 28-year-old Chinese seaman who had illegally entered the United States by jumping ship in New York on May 18, 1967. These incriminating documents were retrieved from the INS files subsequent to petitioner's arrest as an illegal alien by an INS investigator on July 13, 1970. Petitioner contends that his arrest was illegal and that the documents which provided the evidentiary basis for the deportation order were the fruits of that illegal arrest and should have been suppressed in the deportation proceedings. The Government responds that the documents were in the INS files-not obtained from the person or effects of petitioner-and therefore were admissible regardless of the circumstances of petitioner's detention, and, in the alternative, that there was nothing illegal about that detention. We believe that there were no improprieties committed in the course of petitioner's detention and arrest and we accordingly affirm the decision of the Board of Immigration Appeals without reaching the Government's contention that the deportation order could be supported by the documentary evidence without regard to the circumstances of petitioner's apprehension.

I

At the time of petitioner's arrest Gregory George Podrasky had been an investigator with the INS for more than 18 years, having been assigned to the Washington, D.C. District office since 1958. At approximately 10:45 A.M. on July 13, 1970 Podrasky was driving south on South Capitol Street in the Southeast portion of the District of Columbia. Just past the underpass beneath Interstate 295, South Capitol curves slightly to the left so that Podrasky observed two men, petitioner and an unidentified companion, directly in front of his car walking north along the sidewalk in the block between Chesapeake and Atlantic Streets. There is, in this area, a shopping center whose establishments include a Chinese restaurant. Both men appeared to Podrasky to be Chinese or of Chinese descent; one wore dark trousers and an ordinary white dress shirt; and the other, petitioner, wore gray pants and a white shirt described by Podrasky as being of the type worn by busboys. Podrasky was driving only 20-25 miles per hour, and as he passed the two men he continued to observe them in his rear view mirror. He saw them stop a taxi that was headed east on Atlantic Street at the corner of South Capitol. Petitioner entered the back seat of the cab and his companion bent over by the front door and appeared to be giving the cab driver instructions. Believing that these circumstances suggested strongly that the passenger, petitioner, could not speak English, Podrasky pulled to the curb about 3/4 of the way down the block toward Chesapeake and continued to observe the taxi and the two men.

When petitioner's companion turned and walked away from the cab Podrasky's

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suspicions about petitioner's possible status as an alien crystallized into action. He made a U-turn across South Capitol, and with the stop light at Atlantic in his favor he turned left onto Atlantic, pulled over to the curb opposite the taxi and hailed the cab while it was waiting for the light to change. He identified himself to the driver as an INS investigator and asked him to remain stopped while he asked his passenger, the petitioner, a few questions. Podrasky then asked petitioner, "How you come to the United States?" Petitioner replied only, "no papers, no papers." Podrasky then moved out of the street to the curb side of the cab and continued unsuccessfully his attempts to elicit some identifying information or papers from petitioner. There was a considerable language problem, but petitioner finally indicated that his name was Cheung Tin Wong and that his papers were at Lee's Cafe on Georgia Avenue in Northwest Washington. At this point Podrasky told the cab driver that he was taking his passenger from him and petitioner got out of the cab. Podrasky initially sought to have petitioner take him to the companion who had placed him in the taxi, but petitioner insisted instead on going to Lee's Cafe. Podrasky acquiesced and petitioner voluntarily walked over to Podrasky's car and got in the passenger side while Podrasky entered the driver's side. They drove to Lee's Cafe.

Upon arrival at Lee's Cafe petitioner unlocked the two outer doors and entered with Podrasky. Another individual of Chinese descent was inside cooking, and petitioner talked with him in Chinese, then made some telephone calls. Finally Podrasky asked him about his papers again and they both went upstairs to a room where petitioner apparently lived. After looking through his belongings unsuccessfully, petitioner stated again that he had no papers and they returned downstairs. Petitioner then called his attorney, but upon having great difficulty communicating with counsel's secretary Podrasky took the phone to talk with her and she informed him that counsel had no client named Cheung Tin Wong. It was apparently at this point that Podrasky informed petitioner that he would have to come down to the INS offices in order to clear up his problem. Podrasky then sat by while petitioner made several calls to order provisions for the restaurant, then he assisted petitioner in calling a waitress in to take care of the restaurant while they went to the INS offices. While they waited for the waitress to arrive, petitioner went upstairs again, unaccompanied by Podrasky, to change clothes. After the waitress arrived, Podasky and petitioner left for the Immigration Service District office.

At the District office Podrasky began a series of phone calls to the Central Office and the New York office where the INS files revealing petitioner's illegal entry into the country were located. These documents subsequently provided the evidentiary basis for the deportation order issued by the Special Inquiry Officer following a deportation hearing held on August 18, 1970. At this hearing petitioner had unsuccessfully argued that the documents should be suppressed as the fruits of an illegal arrest. The Board of Immigration Appeals heard oral argument on petitioner's appeal from the deportation order on March 3, 1971, at which time he renewed his attack on the legality of his apprehension and the admissibility of the documents. The Board denied his appeal on June 22, 1971 and this petition followed.

II

Petitioner's challenge to the legality of his arrest places us at the intersection between the Fourth Amendment's protection against unreasonable "seizures" and the statutory scheme for enforcement of the immigration laws. The statute principally involved in this case is 8

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U.S.C. § 1357(a)(1) (1970), 1 which provides:

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Any officer or employee...

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