Carnejo Molina v. Immigration and Naturalization Service, CARNEJO-MOLIN

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: SKELTON
• Citation: 649 F.2d 1145
• Parties: Rosa Carmenetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Unit A
• Docket Number: No. 80-1485,P,CARNEJO-MOLIN,80-1485
• Decision Date: 08 July 1981

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649 F.2d 1145 Rosa Carmen CARNEJO-MOLINA, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 80-1485. United States Court of Appeals,
Fifth Circuit.
Unit A July 8, 1981.

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Peter D. Williamson, Houston, Tex., for petitioner.

James P. Morris, Lauri Steven Filppu, James A. Hunolt, Govt. Reg. & Labor Sect., Dept. of Justice, Washington D. C., for respondent.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before SKELTON ^*, Senior Judge, and RUBIN and REAVLEY, Circuit Judges.

SKELTON, Senior Judge:

This case involves a deportation proceeding by the United States Immigration and Naturalization Service (INS) against Rosa Carmen Carnejo-Molina (Petitioner), who is a 43-year old native and citizen of Chile. She entered the United States on October 6, 1976, by representing herself to be a citizen of the United States and by presenting a passport showing this to be true. After a full investigation, the INS charged her by an order to show cause with having entered the United States without having been inspected and admitted as an alien in violation of § 241(a)(2) (8 U.S.C. § 1251(a)(2)) of the Immigration and Nationality Act (the Act). At the deportation hearing before an immigration judge, with benefit of counsel, she testified and admitted all of the allegations of the Order to Show Cause and conceded deportability under § 241(a)(2) of the Act (8 U.S.C. § 1251 (a)(2)) as an alien who had entered the United States without inspection. However, she applied for a waiver of deportability under § 241(f) of the Act, which was denied by the judge on the ground that she was not otherwise admissable as an immigrant at the time of her entry. She also applied for voluntary departure which the judge denied in the exercise of his discretion after considering all of the evidence. The judge found that her two United States citizen children mentioned below were not equities sufficient to overcome the adverse factors. Other equities presented by petitioner were likewise held to be insufficient to warrant granting her voluntary departure.

At the end of the hearing, the judge ordered her deported. She appealed his ruling to the Board of Immigration Appeals (the Board), which affirmed the decision of the immigration judge. This appeal followed.

The petitioner contends that she did not get a fair hearing because the judge received into evidence and considered her passport, birth certificate, social security and voter registration cards and baptismal certificate, which she says were illegally seized in her residence by the INS officer without a search warrant to search her house or an arrest warrant for her arrest, all in violation of her constitutional rights under the Fourth Amendment. She contends that these documents should have been excluded from the evidence pursuant

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to her attorney's objection to them because they were seized by the officer while he was in her house illegally. She also argues that they should have been excluded for the further reason that they were seized by the officer in connection with her arrest in her residence without a warrant. The facts relative to petitioner's arrest and the seizure of the above documents were substantially as follows.

The INS officer obtained a warrant for the arrest of one Louis Acevedo, for reasons not shown by the evidence, and on September 6, 1977, he and another officer entered a house owned by Acevedo, but in which he did not reside, to execute the warrant. Acevedo was in the house and was arrested pursuant to the warrant. The petitioner was also in the house at the time. She resided there. On that occasion the INS officer began to question petitioner. He asked her if she was a United States citizen and she said she was. He then asked her if she had any documents, whereupon she produced the above-mentioned documents and gave them to the officer for inspection. ¹ No search of petitioner's residence was made by the officer. The petitioner was requested by the officer to accompany him to the passport office and she did so. We assume, at least arguendo, that she was under arrest at the time, as she claims, although the officer denied it. We doubt if she could have successfully refused to accompany him. While at the office, in response to further questions, and on advice of counsel, she admitted that she was a citizen of Chile and was born there. When she made this admission, she was given the Miranda warning for the first time. Thereafter, she made a full confession in which she admitted that her birth certificate, passport, social security and voter registration cards, and baptismal certificate showing her birth in the United States and stating that she was a citizen of this country were false. She also confessed that she had used the false passport to enter the United States from Chile on October 6, 1976, claiming to be a United States citizen. When she made these admissions she was formally placed under arrest and released without bond. The documents were kept by the officer. Thereafter, deportation proceedings were filed against her on September 7, 1977, by the issuance of a show cause order, charging her with entering the United States on October 6, 1976, without having been inspected and admitted as an alien as required by § 241(a)(2) (8 U.S.C. § 1251(a)(2)) of the Immigration and Nationality Act (the Act).

The case was scheduled to be heard on September 21, 1977. On that day the petitioner and her attorney appeared before the immigration judge and asked for more time on the ground that the attorney had not had time to prepare the case for trial. The judge continued the case until October 13, 1977, on which date the hearing was held.

The petitioner testified in her own behalf on the advice and with the benefit of counsel. Her testimony showed among other things, the following facts. She was born in Chile and was a citizen of that country and not of the United States. She entered the United States in 1969 using a birth certificate of another person named Rita Cardenas which was given to her by a friend in Mexico. In 1974 she went before a notary public in Texas and with his help filed an application for a delayed birth certificate in which she falsely stated she was born in Livingston, Texas, and was a citizen of the United States. Having obtained the birth certificate, she applied for and received a passport from the United States on October 15, 1974, that showed that she was born in "Texas, U.S.A." on December 19, 1936. She went to Mexico in 1975 and returned to the United States using this passport. On September 6, 1976, she went to Chile and returned to the United States on October 6, 1976, using this passport. Her testimony also showed that she had never been married, but gave birth to two children in the United States and one in

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Chile, all of whom were living with her in Houston, Texas. ² She admitted that she had been employed illegally in the United States, had voted in one United States election and had participated in the social security program without being a citizen. She had never reported her address as an alien.

At the beginning of the hearing the judge asked petitioner's counsel if he admitted or denied the allegations in the show cause order. The attorney answered "we would admit allegations one through five in the Order to Show Cause." Those allegations were as follows:

UPON inquiry conducted by the Immigration and Naturalization Service, it is alleged that:

1. You are not a citizen or national of the United States;

2. You are a native of CHILE and a citizen of CHILE ;

3. You entered the United States at MIAMI, FLA. on or about Oct. 6, 1976

4. You were then admitted upon your false statement to the United States Immigration Officer that you were a citizen of the United States.

5. You were not then inspected and admitted as an alien by an immigration officer.

Whereupon, the judge inquired of counsel whether he admitted that petitioner was deportable and he answered that on the basis of the admissions of facts and allegations she was deportable. However, the attorney asked that she be given discretionary relief by allowing her voluntary departure for Chile at her own expense within 30 days.

During the trial the government offered the above documents as evidence against petitioner. As stated above, her attorney objected to their introduction on the ground that they had been seized by...