Matter of Becerra-Miranda
| Decision Date | 18 August 1967 |
| Docket Number | A-13539641.,Interim Decision Number 1768 |
| Parties | MATTER OF BECERRA-MIRANDA. In Exclusion Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal from the order of the special inquiry officer finding applicant excludable on the specified ground and ordering him excluded and deported.
Applicant is a 30-year-old single male alien, native and citizen of Mexico, who was admitted to the United States for permanent residence on August 5, 1963 at El Paso, Texas. The charge herein arises from a trip to Mexico, which took place in the first days of October 1965, and the applicant's return therefrom to the United States. The following are the facts about which there is no dispute:
On October 4, 1965, in the very early hours of the morning, applicant, driving his 1965 Chevrolet automobile, crossed the border from Mexico into the State of Texas. Shortly thereafter he stopped and picked up several people, and then proceeded to drive toward the town of Tulia, Texas. The car was stopped by United States border patrol inspectors on Carlsbad Highway short of its destination. There were seven people in the car. They were:
Rogelio Becerra-Miranda, the applicant;
Edmundo Becerra-Miranda, brother of the applicant;
Roberto Becerra-Miranda, also known as Roberto Martinez Gonzales, another brother of the applicant;
Javier Miranda, first cousin of the applicant;
Oscar Lascano-Beanes, third cousin of the applicant;
Manuel Macias-Escajeda, from the same town as applicant;
Hector Ortego-Ortero, from the same town as applicant.
The arrest on the highway took place between 3 and 4 a.m. All of the persons in the car were taken back to the border patrol station at El Paso, Texas, where they were questioned. Applicant, after being advised of his rights, declined to make a sworn statement and was thereafter released (Ex. 5, p. 3). Javier Miranda, who was a lawful permanent resident alien, was released (Tr. p. 73) and there is no indication that any statement was ever taken from him. Applicant's two brothers were questioned but neither gave any information (Tr. p. 52) and no statements were taken from them. Three statements in the English language, each containing substantially the same text, were signed and sworn to by the remaining members of the group and are in the record as part of Exhibit 5. Their substance is as follows:
The affiant, together with four other men, of whom two were brothers of the applicant, on October 3, 1965 went to applicant's home in San Ignacio, Mexico. Applicant asked all of them if they had papers to enter the United States legally and they all said they did not. He told them that he would take them to Tulia, Texas where there was work, for $20 each, which they could pay after they started working. He told them to wait at the headgates in San Ignacio on the Mexican side and to cross when they saw his car on the U.S. side. They went to the headgates and waited and then at about 12:30 a.m. waded across the Rio Grande River near Tornillo, Texas, without presenting themselves to any immigration officer for inspection. They met applicant and got into his 1965 yellow Chevrolet and were driven through Ysleta, Texas to the Carlsbad Highway, where they were arrested by immigration officers after a short drive. They had all been told by the applicant earlier in the evening at his home that if they were arrested, they were to tell the immigration officers they had already crossed and were on the U.S. highway when they were picked up by applicant, by chance and without prearrangement.
The affidavits end with the statement that they were read to affiants in the Spanish language, were true and correct, were made without coercion or threat and without being promised anything by anyone.
A few days after this arrest, a criminal complaint was filed against applicant in the United States District Court in El Paso, charging violation of section 1325 of Title 8 U.S.C. and section 2 of Title 18 U.S.C., in that he had aided and abetted Oscar Lascano-Beanes, an alien (one of the passengers) to elude examination and inspection by immigration officials. Bail was set at $1500 which he apparently could not meet and applicant was detained in the El Paso County jail. All of the others who had been in the car, with the exception of Javier Miranda, were held as material witnesses under bond of $1000, which they could not meet, and were likewise detained in the custody of the United States Marshal. On March 7, 1966 applicant pleaded guilty to the charge and on March 17, 1966 he was sentenced to six months' imprisonment, with sentence suspended and the applicant being placed on probation without supervision for six months. On the face of the Judgment and Order of Probation there is the following:
It is recommended by the court that the defendant not be deported under section 1251, T. 8, U.S.C. Approved: (signed) Mario J. Martinez, Assistant U.S. Attorney.
At the hearing, applicant testified that he remained in El Paso for about two weeks after the criminal proceedings were completed and then went on to California. An order to show cause in deportation proceedings, issued on July 18, 1966, was sent by certified mail to applicant's last address in El Paso, and set the deportation hearing for July 29, 1966. It was received by applicant's aunt, who brought it to applicant's attorney, who then communicated with applicant in Los Angeles by telephone. Applicant was advised that he would have to be in El Paso for the hearing on the date set. He arrived in El Paso on the morning of that day and was advised by his attorney that the hearing had been adjourned. He then crossed into Mexico on July 29, 1966 and when he sought to return on August 1, 1966 was excluded and held for these proceedings.
At the hearing, excludability was contested. Applicant emphatically denied that there had been any element of gain, claiming that he himself was going to Tulia to look for work, that he was taking his two brothers with him, and that the others decided they would like to go also, and joined the brothers. The three statements above mentioned, which had been taken by the Government and which were introduced in evidence as part of Exhibit 5, were the sole evidence on the question of gain. Two of the persons from whom the statements had been taken, Hector Ortega-Ortero and Oscar Lascano-Beanes, appeared as witnesses for applicant at the hearing. They testified under oath that the applicant had never asked them for money, nor had they ever promised to pay him any, and that they had never told anyone they had. They stated that they had been specifically asked by the border patrol officers whether they had promised to pay any money and had specifically denied it. They stated that they did not know the actual contents of the affidavits, believing them to be confessions that they were in the United States illegally, and that they definitely did not know they contained anything about a promise to pay the applicant. They also testified that the affidavits were not signed until 12 hours after they had been arrested and, during that 12-hour period, until they signed, they were not permitted to sleep and were not given anything to eat. In short, they repudiated the statements not only as to content, but implied that they were signed under duress.
The Government produced as witnesses two border patrol officers. One, J.T. Robinson, stated that he had come on duty at 8 a.m. on the morning of October 4th and had questioned every person in the car (he gave the number of passengers as five instead of six and had no recollection whatever of Javier Miranda). It is his testimony that the statements were prepared by him by asking specific questions of the affiants in Spanish, and then casting the question and answer into one statement in English. Although his memory was vague on many details, he testified that he remembered Hector Ortega-Ortero in particular because "it was a little difficult to bring him around to the statement" (Tr. p. 40, lines 5 and 6). When called upon in cross-examination to explain what he meant, he stated that this particular witness was a liar, who at one point would not even tell the officer his correct name, but that he nevertheless believed Mr. Ortega had told him the truth when he asked Mr. Ortega if he had paid or promised money to applicant and Mr. Ortega said that he had (Tr. pp. 49 and 50).
The other witness, Edward J. Zizik, had nothing whatever to...
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