528 F.2d 366 (9th Cir. 1975), 74--2730, Trias-Hernandez v. I.N.S.

Docket Nº:74--2730.
Citation:528 F.2d 366
Party Name:Ramon TRIAS--HERNANDEZ, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Case Date:December 31, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 366

528 F.2d 366 (9th Cir. 1975)

Ramon TRIAS--HERNANDEZ, Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 74--2730.

United States Court of Appeals, Ninth Circuit

December 31, 1975

Page 367

Ronald H. Bonaparte, Los Angeles, Cal., for petitioner.

Michael E. Wolfson, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

OPINION

Before MERRILL, WRIGHT and CHOY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Of the three issues raised by petitioner in this deportation case, we need to discuss but one: Was there error by the Immigration Judge in admitting in evidence two documents, one a statement given to a government agent by petitioner while in custody and without counsel present and the other some departmental memoranda prepared by persons not subject to cross-examination. We affirm the deportation order and denial of voluntary departure.

Petitioner, a citizen of Mexico, entered the United States for permanent residence on an immigrant visa in 1958. He was apprehended in 1972 at his place of employment by INS officers and interrogated. Before the questioning, he produced a Form G--28 (Notice of Entry of Appearance as Attorney or Representative) and a letter from an attorney who said that he was assisting the petitioner.

Thereafter, he told INS officers that he had left the United States in 1961 while tubercular, had attempted unsuccessfully to re-enter in 1961 and again in 1963 and last entered 10 days before apprehension with neither inspection nor immigration documents. The information was noted on Form 1--213 (Record

Page 368

of Deportable Alien), which also contained an acknowledgment the alien had the Form G--28 and attorney's letter. It recited that petitioner was permitted to communicate with his attorney.

Based on the statements on Form 1--213, there was issued an order to show cause charging illegal entry and deportability under 8 U.S.C. § 1251(a)(2). At the deportation hearing, petitioner remained silent on advice of counsel. There was strenuous objection by counsel to the use of the information in Form 1--213 and to three other documents. The Immigration Judge overruled the objections, found petitioner deportable and denied his application for voluntary departure. The Board of Immigration Appeals dismissed petitioner's appeal.

The admissibility of Form 1--213 is crucial for without it the INS cannot prove that petitioner is in the United States in violation of law. To meet his statutory burden of showing lawful entry (8 U.S.C. § 1361) petitioner offered in evidence his 1958 visa and 'green' card. The burden then shifted to respondent to show by clear, convincing and unequivocal evidence that petitioner was deportable. Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). The production of the documents in question was vital to a finding of deportability.

Petitioner argues that the Form 1--213 was inadmissible because: (1) he...

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