Cordon De Ruano v. Immigration and Naturalization Service
| Decision Date | 26 May 1977 |
| Docket Number | No. 76-1546,76-1546 |
| Parties | Carmen CORDON de RUANO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gary Silbiger, Los Angeles, Cal., argued for petitioner.
William D. Keller, U. S. Atty., Carolyn M. Reynolds, Asst. U. S. Atty., Los Angeles, Cal., argued for respondent.
On Petition to Review a Decision of the United States Immigration and Naturalization Service.
Before CHAMBERS and WALLACE, Circuit Judges, and CRARY, * District Judge.
Carmen Cordon de Ruano petitions for review of a decision of an Immigration Judge, affirmed by the Board of Immigration Appeals (BIA), that she is deportable under § 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2), for overstaying a temporary entry as a nonimmigrant visitor. We affirm.
On April 29, 1975, two INS officers appeared at petitioner's door seeking her husband, a subject of pending deportation proceedings. They identified themselves and petitioner asked them into the house. While in the house, the officers asked petitioner questions relating to her nationality and immigration status, and she produced a passport. The officers then requested petitioner to "go with them," but abandoned this request when they learned her child was sick. At no time did petitioner ask the officers to leave.
On June 18, 1975, the District Director issued an Order to Show Cause charging that petitioner was deportable for having overstayed a temporary admission as a nonimmigrant visitor. At the subsequent hearing, petitioner initially refused to answer any questions on the ground that her answers might incriminate her. The Immigration Judge overruled many of the Fifth Amendment objections, but petitioner, on the advice of counsel, refused to respond. The government then introduced a passport issued by the Guatemalan Government on October 19, 1966 in the name of Carmen Cordon de Oliva, petitioner's former married name. The original Order to Show Cause had been issued in that name, and petitioner stipulated at the hearing that the Order related to her. In addition, the passport contained a photograph which the Immigration Judge found to be "a good likeness" of petitioner. The passport which was admitted into evidence over petitioner's objections, indicated that the bearer had entered the United States on December 13, 1970 as a nonimmigrant visitor. It also indicated that Cordon de Oliva was a native and citizen of Guatemala.
Petitioner then attempted to establish that the passport had been seized illegally and therefore should be excluded from evidence. She recounted, under questioning by her counsel, the events of April 29, 1975, when the two officers came to her home. Petitioner testified that the officers had not given her any Miranda warnings. The government declined to call either of the officers, and the Immigration Judge denied petitioner's motion to have them called so that they could be "cross-examined." Petitioner was found deportable as charged by the Immigration Judge based on the passport and the lack of rebutting evidence presented by petitioner. The BIA, without the benefit of oral argument, affirmed this decision.
Petitioner first argues that the passport was inadmissible because it was obtained through an illegal "seizure," in violation of the Fourth Amendment, and therefore should have been suppressed. We find no merit in this contention. Although the INS may not stop or detain persons to question them about their citizenship "on less than a reasonable suspicion that they may be aliens," United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975), petitioner here was not "stopped" or "detained." The immigration officers who came to her home were there for a valid reason to find her husband, who was the subject of pending deportation proceedings. Once there for that legitimate purpose, the officers were not totally forbidden from questioning petitioner, who happened to answer their knock. Although petitioner need not have asked the officers into the house, answered their questions, or produced her passport there is sufficient evidence to support the Immigration Judge's finding that she did all of these things voluntarily. The government did not seek to use any of petitioner's statements against her, it simply sought to introduce the passport which petitioner's own testimony indicated was not "seized," but rather handed to the officers after they inquired about her country of origin. Moreover, nothing in the record supports petitioner's assertion that permission to enter was given and her passport produced only in "submission to authority." Cf. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Thus, we conclude that the INS officers obtained the passport lawfully, in compliance with Fourth Amendment standards.
Petitioner also argues that the passport's admissibility was barred by the officers' failure to give Miranda warnings before questioning her. This argument is now completely foreclosed by Trias-Hernandez v. INS, 528 F.2d 366 (9th Cir. 1975).
Petitioner next contends that the passport, assuming constitutional admissibility, lacked a proper foundation since it was not sufficiently shown to relate to her and therefore should have been excluded. This contention similarly is without merit. The passport was issued in the same name as the Order to Show Cause, which petitioner stipulated related to her. The passport also bore a photograph which the Immigration Judge found to be "a good likeness" of petitioner. Additionally, petitioner admitted under questioning from her attorney that her passport had been given to two immigration officers who came to her home. Therefore, the Immigration Judge's implicit finding that the passport related to petitioner is supported by "reasonable, substantial, and probative evidence" even without drawing any adverse inference from her refusal to testify on this point, and we decline to disturb that finding. 8 U.S.C. § 1105a(a)(4).
In an argument again related to the passport's introduction into evidence, petitioner claims that the authentication requirements of 8 C.F.R. § 287.6 were disregarded. That regulation, however, relates only to...
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