Avila-Gallegos v. Immigration and Naturalization Service
| Decision Date | 07 November 1975 |
| Docket Number | P,AVILA-GALLEGO,D,No. 196,196 |
| Parties | Migueletitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 74--2647. |
| Court | U.S. Court of Appeals — Second Circuit |
William H. Oltarsh, New York City, for petitioner.
Thomas H. Belote, Sp. Asst. U.S. Atty., New York City (Paul J. Curran, U.S. Atty., for the Southern District of New York, Steven J. Glassman, Asst. U.S. Atty., of counsel), for respondent.
Before LUMBARD, ANDERSON and VAN GRAAFEILAND, Circuit Judges.
On October 8, 1973, petitioner, a native of Ecuador, entered the United States from Mexico without an immigrant visa or other valid entry document. This is a petition to review an order of the Board of Immigration Appeals that he be deported.
Since petitioner himself testified before the Immigration Judge concerning the illegal manner of his entry, one might well ask, 'Why the appeal?' The answer here, as in so many other cases is an alleged violation of petitioner's constitutional rights. 1 He contends that his arrest was illegal because it was without warrant or probable cause and that he failed to receive proper Miranda warnings. Arguing from this premise, he concludes that all testimony at the deportation hearing should have been suppressed and the case against him dismissed. We agree with neither the premise nor the conclusion.
The facts surrounding petitioner's apprehension are uncomplicated. INS officials, in response to a complaint from the New York State Department of Labor, called upon petitioner's employer to inquire into the employment of illegally admitted aliens. After reviewing personnel records, the officers interviewed petitioner and several of his co-workers in the presence of factory officials. During this interview, petitioner admitted that he was an alien illegally in the United States. Upon his subsequent inability to produce a passport, he was taken to the Immigration Office where Miranda warnings were given and a written statement secured. The deportation hearing followed.
Since deportation proceedings are not criminal in nature, Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 285, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), there was no necessity for Miranda warnings. Chavez-Raya v. Immigration and Naturalization Service, 519 F.2d 397 (7th Cir. 1975). In any event these warnings would not have been required prior to the time they were given because, until then, petitioner was not in custody or under any restraint. Nason v. Immigration and Naturalization Service, 370 F.2d 865, 868 (2d Cir. 1967).
Our recent decision in Ojeda-Vinales v. Immigration and Naturalization Service, 523 F.2d 286 (2d Cir. 1975), is four-square authority that petitioner's arrest was not illegal. 2 Here, as in Ojeda-Vinales, the information originally received by INS justified the initiation of an investigation, and 'petitioner's own voluntary responses to the agent's questions provided the extra measure of evidence needed to establish probable cause for his arrest.' Id. at 288. Here, also, the likelihood of petitioner's escape justified his apprehension without a warrant. 3
Assuming, arguendo, that petitioner's arrest was technically defective, it does not follow that the deportation proceedings were thereby rendered null and void. This argument was rejected by the Supreme Court many years ago. United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 158, 44 S.Ct. 54, 68 L.Ed. 221 (1923). We have followed Bilokumsky, as have the courts of other circuits. See La Franca v. Immigration and Naturalization Service,413 F.2d 686, 689 (2d Cir. 1969); Vlissidis v. Anadell, 262 F.2d 398 (7th Cir. 1959); Huerta-Cabrera v. Immigration and Naturalization Service, 466 F.2d 759 (7th Cir. 1972) (per curiam); Guzman-Flores v. Immigration and Naturalization Service, 496 F.2d 1245 (7th Cir. 1974).
Regardless of the legality of his arrest, since petitioner's deportation...
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