Trias-Hernandez v. I.N.S., TRIAS--HERNANDE

• Citation: 528 F.2d 366
• Decision Date: 31 December 1975
• Docket Number: P,TRIAS--HERNANDE,No. 74--2730,74--2730
• Parties: 1 Fed. R. Evid. Serv. 92 Ramonetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 366

528 F.2d 366

1 Fed. R. Evid. Serv. 92

Ramon TRIAS--HERNANDEZ, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 74--2730.

United States Court of Appeals, Ninth Circuit.

Dec. 31, 1975.

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 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 was not advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before making the statements on the form; (2) the INS did not comply with its own regulation, 8 C.F.R. § 287.3, before taking the statement; (3) it was inadmissible hearsay; and (4) no interpreter was present during the interrogation. The Immigration Judge admitted the form in evidence over objection and we agree with that ruling.

The argument for inadmissibility because the interview was not preceded by Miranda warnings assumes that petitioner was in custody at that time. The record is unclear on this point. But even if we determined that petitioner's position was such that in a criminal context Miranda warnings would have been required, we have never held that such warnings would be necessary in circumstances similar to these. See Gonzalez-Gomez v. INS, 450 F.2d 103, 105 n. 4 (9th Cir. 1971).

We said in Lavoie v. INS, 418 F.2d 732, 734 (9th Cir. 1969), that 'the presence of counsel during interrogation, and other Sixth Amendment safeguards, are not applicable' to deportation proceedings. See also Nason v. INS, 370 F.2d 865, 867--68 (2d Cir. 1967); Pang v. INS, 368 F.2d 637, 639 (3d Cir. 1966). The principal rationale for our decision in Lavoie was that these cases are civil rather than criminal in nature and rules for the latter are inapplicable to deportation proceedings. Lavoie, supra at 734. Although the consequences of deportation may be severe, the civil nature of the proceeding has been consistently upheld. See, e.g., United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975); Chavez-Raya v. INS, 519 F.2d 397, 400--401 (7th Cir. 1975), and the cases cited therein.

The civil nature of a deportation proceeding is significant here. As outlined by the Seventh Circuit the substantial distinctions between a deportation proceeding and a criminal trial make Miranda warnings inappropriate in the deportation context:

A principal purpose of the Miranda warnings is to permit the suspect to make an intelligent decision as to whether to answer the government agent's questions. (Citations omitted.) In deportation proceedings, however--in light of the alien's burden of proof, the requirement that the alien answer non-incriminating questions, the potential adverse consequences to the alien of remaining silent, and the fact that an alien's statement is admissible in the deportation hearing despite his lack of counsel at the preliminary interrogation--Miranda warnings would be not only inappropriate but could also serve to mislead the alien.

Chavez-Raya, supra at 402. Form 1--213 containing petitioner's statements was admissible despite the absence of Miranda warnings.

Petitioner next argues that regardless of the constitutional necessity of providing such warnings, the INS by its regulation has imposed on its officers the duty of giving these warnings. Failure to follow this regulation, petitioner contends, requires exclusion of Form 1--213.

8 C.F.R. § 287.3 requires that:

An alien . . . be advised of the reason for his arrest and his right to be represented by counsel of his own choice at no expense to the Government. He shall also be advised that any statement he makes may be used against him in a subsequent proceeding and that a decision will be made within 24 hours or less as to whether he will be continued in custody . . .

The language of the regulation neither requires specifically the use of Miranda warnings nor does it provide for comparable admonitions. The absence of Miranda warnings, contrary to petitioner's contention, did not violate 8 C.F.R. § 287.3. ¹

The objection to the form as hearsay is also without merit. The INS officer who completed and signed it testified that he had no present recollection of taking the statement. He did, however, identify the form as one that he had prepared contemporaneously with the making of the statement by petitioner.

We have said:

Hearsay is admissible in administrative proceedings, which need not strictly follow conventional evidence rules. (Citations omitted.) The tests for admissibility are fundamental fairness and probativeness. (Citation omitted.)

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