626 F.2d 721 (9th Cir. 1980), 78-3651, Tejeda-Mata v. Immigration and Naturalization Service

Docket Nº:78-3651.
Citation:626 F.2d 721
Case Date:August 29, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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626 F.2d 721 (9th Cir. 1980)

Miguel TEJEDA-MATA, Petitioner,



No. 78-3651.

United States Court of Appeals, Ninth Circuit

August 29, 1980

Argued and Submitted May 19, 1980.

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Charles H. Barr, Tri-Cities, Wash., for petitioner.

Eric A. Fisher, Washington, D.C., for respondent.

Appeal from a decision of the Board of Immigration Appeals.

Before CHOY and FERGUSON, Circuit Judges, and BARTELS, [*] District Judge.

BARTELS, District Judge:

Petitioner Miguel Tejeda-Mata appeals an order of the Board of Immigration Appeals dated November 16, 1978 dismissing his appeal from an Immigration Judge's finding of deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2), and granting him voluntary departure. 1 The principal

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issues presented are whether (1) the Immigration Judge's finding as to the sufficiency of the evidence was supported by reasonable, substantial, and probative evidence, and (2) the administrative authorities denied petitioner due process of law in reaching the ultimate conclusion of deportability. We affirm.

I. Background

Petitioner is a native of Mexico and is charged with having entered the United States near San Ysidro, California without inspection in November 1974. While driving through a store parking lot in Connell, Washington on February 19, 1977, Immigration Officer Jimmy Spence recognized an alien whom he had previously arrested and who had been granted voluntary departure from the United States approximately three weeks earlier. After parking his vehicle so that it blocked the exit of the alien's vehicle, Spence approached and began to open the door on the driver's side of the alien's car. Suddenly, petitioner ran toward the car, asked in Spanish what was happening, and said in English with a heavy Spanish accent, "It's my car." Spence informed him that he was an immigration officer and asked petitioner who he was. When petitioner appeared not to understand, Spence asked in Spanish where he was from, and petitioner responded that he came from Mexico.

After placing both persons in his vehicle, Officer Spence asked whether either had family or possessions in the United States. Both answered "no," but petitioner changed his mind to the affirmative fifteen minutes en route to the jail in Othello, Washington. When petitioner subsequently refused to sign a request for voluntary departure form, Spence obtained an order to show cause and an arrest warrant and prepared a Record of Deportable Alien, INS Form I-213. 2

At his deportation hearing held on February 7, 1978, petitioner, through his counsel, denied each of the allegations contained in the order to show cause, and he refused to admit deportability. Through a Spanish language interpreter, petitioner testified regarding the events surrounding his arrest on February 19, 1977, but he refused to answer any questions concerning his citizenship or entry into the United States on the ground that the answers might tend to incriminate him. Upon questioning by the INS trial attorney, however, petitioner admitted telling Officer Spence prior to his arrest that he came from Mexico. Petitioner's counsel requested that the testimony of Officer Spence, the only witness offered by the government, be translated for his client into Spanish by the official interpreter. When this request was denied by the Immigration Judge, petitioner's counsel offered to translate the testimony himself so that petitioner would have the benefit of simultaneous translation of the testimony against him. This request was also denied. During the course of Spence's testimony, the INS Form I-213 was admitted into evidence over petitioner's objection.

At the conclusion of the hearing, the Immigration Judge found that (1) petitioner had voluntarily told Officer Spence before arrest that he was from Mexico; (2) because of this admission, petitioner had the burden of proving time, place, and manner of entry into the United States, which burden he failed to carry; and (3) petitioner's deportability had been established by clear, convincing, and unequivocal evidence. He granted petitioner the privilege of voluntary departure.

The Board of Immigration Appeals dismissed petitioner's appeal in a four-page decision, concluding that the Immigration Judge's admission into evidence of Form I-213 was proper because the document

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was trustworthy and prepared in the regular course of business; petitioner had failed to meet his burden of proving time, place, and manner of entry into the United States; Officer Spence was authorized to question petitioner without a warrant for his arrest because petitioner failed to produce any evidence that Spence did not have a reasonable suspicion that petitioner was an illegal alien; and since the regulations contained no requirement that the deportation proceedings be recorded in Spanish, petitioner was not denied due process by the Immigration Judge's failure to require such transcription.

This appeal followed.

II. Sufficiency of the Evidence

Petitioner challenges the sufficiency of the evidence on several grounds. First, he asserts that Form I-213 was inadmissible because of its hearsay character and because it was not properly authenticated. Similar contentions were considered and rejected by this court in Trias-Hernandez v. Immigration and Naturalization Service, 528 F.2d 366, 369 (9th Cir. 1975), where we upheld the admissibility of Form I-213 upon our finding that it was (1) probative on the issue of petitioner's entry into the United States, and (2) fundamentally fair. In this case, the information contained on the form e. g., name, address, country of citizenship, circumstances of arrest, etc. was undoubtedly probative, and there is no basis in the record to conclude that the information was obtained from anyone other than petitioner or that it was in any way the product of coercion or duress. Moreover, the authenticity of the document was sufficiently established by the testimony of Officer Spence, who identified it as the I-213 form prepared by him shortly after arriving at the jail in Othello, Washington on February 19, 1977.

Second, petitioner contends that his admission to Officer Spence that he came from Mexico should have been suppressed because it was coerced. On the contrary, at the time petitioner made the statement no arrest had been made, no curtailment of petitioner's liberty had been imposed, and no threat to do so had been made by Officer Spence. Because petitioner willingly admitted his alienage under such circumstances, he cannot now claim that his statement was the product of an illegal search or seizure. Cordon de Ruano v. Immigration and Naturalization Service, 554 F.2d 944, 946 (9th Cir. 1977); Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1071 (7th Cir. 1976), modified in part on rehearing en banc, 548 F.2d 715 (7th Cir. 1977). Moreover, section 287(a)(1) of the Immigration and Naturalization Act, 8 U.S.C. § 1357(a)(1), authorizes any INS officer to interrogate without a warrant any person believed to be an alien as to his right to be or remain in the United States. Id. at 1070; Ojeda-Vinales v. Immigration and Naturalization Service, 523 F.2d 286, 287 (2d Cir. 1975); Cheung Tin Wong v. Immigration and Naturalization Service, 468 F.2d 1123, 1128 (D.C.Cir.1972); Au Yi Lau v. Immigration and Naturalization Service, 445 F.2d 217, 223 (D.C.Cir.), cert. denied, 404 U.S. 864, 92 S.Ct. 64, 30 L.Ed.2d 108 (1971). In this case, the reasonableness of Officer Spence's belief is supported by a number of circumstances. For example, petitioner was with a known illegal alien, spoke with a distinct Spanish accent, and had trouble understanding English. In addition, he approached and sought to interrupt Spence as he was trying to open the car door to speak with the known illegal alien, and he appeared shocked when he heard Spence was an INS officer. On the basis of these circumstances, we believe Officer Spence's brief questioning of petitioner concerning his name and country of origin was clearly justified, and we conclude, therefore, that petitioner's statement of alienage was properly admitted by the Immigration Judge. 3

Finally, petitioner seeks to overturn the finding of deportability on the basis of an allegedly illegal arrest. Section

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287(a)(2) of Title 8 U.S.C. authorizes an INS officer to arrest without a warrant "any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest . . ." The phrase "has reason to believe" has been equated with the constitutional requirement of probable cause. United States v. Cantu, 519 F.2d 494, 496 (7th Cir.), cert. denied, 423 U.S. 1035, 96 S.Ct. 569, 46 L.Ed.2d 409 (1975); Au Yi Lau v. Immigration and Naturalization Service, 445 F.2d at 222. In this case, the circumstances listed supra in justification of Spence's interrogation of petitioner, together with his uncoerced admission that he "came from Mexico," constitute a clearly sufficient basis for his warrantless arrest.

Considering the record as a whole, we conclude that the findings of the Immigration Judge were supported by reasonable, substantial, and probative evidence. Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966); Garcia-Jaramillo v. Immigration and Naturalization Service, 604 F.2d 1236, 1238 (9th Cir. 1979); Lavoie v. Immigration and Naturalization Service, 418 F.2d 732, 735 (9th Cir. 1969); Cordon de Ruano v. Immigration and Naturalization Service, 554 F.2d 944, 947 (9th Cir. 1977); Trias-Hernandez v. Immigration and Naturalization Service, 528 F.2d at 370; 8 U.S.C. § 1105a(a)(4). Once petitioner's alienage was...

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