Matter of Cheung, Interim Decision Number 2106

• Decision Date: 30 November 1971
• Docket Number: Interim Decision Number 2106,A-15171770
• Citation: 13 I&N Dec. 794
• Parties: MATTER OF CHEUNG In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

13 I&N Dec. 794

MATTER OF CHEUNG

In Deportation Proceedings

Interim Decision Number 2106

A-15171770

Board of Immigration Appeals.

Decided by Board November 30, 1971

Where respondent, after stating his name and that he understood the charge brought against him, refused to testify at his deportation hearing, deportability under section 241(a)(2), Immigration and Nationality Act, is established by clear, convincing and unequivocal evidence on the basis of (a) the identity of names of respondent and of the crewman who is the subject of documents which were in possession of the Service before respondent's apprehension (seaman's Identity Book, Arrival Manifest (Form I-418), and the carrier's report of the desertion of a crewman), and (b) the failure of respondent to show that the documents do not relate to him.

CHARGE:

Order: Act of 1952 — Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant crewman—remained longer.

ON BEHALF OF RESPONDENT: Peter Zimmerman, Esquire, 100 State Street, Boston, Massachusetts 02109

ON BEHALF OF SERVICE: Irving A. Appleman, Appellate Trial Attorney

Respondent appeals from the special inquiry officer's order requiring his deportation. The appeal will be dismissed. Voluntary departure will be granted.

The facts have been fully stated by the special inquiry officer. Respondent refused to testify on the advice of counsel. He did not claim his answers would incriminate him. He did state he is Cheung-Shui and that he understood the charge brought against him (pp. 1-3). Counsel contends that the order of deportation is based on documents the Service obtained by the illegal arrest and search of the respondent. In finding respondent deportable, we rely solely upon evidence which was in possession of the Service before the respondent's arrest which occurred on or about June 5, 1970.

At the deportation hearing, the Service introduced in evidence a certified copy of a page of an arrival manifest (Form I-418) showing the arrival of the carrier "Athelknight" at Philadelphia, Pennsylvania on February 11, 1970. Listed among the crew of the vessel is one Cheung Shui, a Chinese national bearing passport No. 68774. He is shown to have been admitted as "D-1" (admitted with a conditional landing permit as an alien crewman). Part of the same exhibit is a report concerning the desertion of a crewman. The report, dated February 13, 1970, was made by the vessel's agent to the Service. This report shows the desertion of Cheung Shui, a native and national of China who had been issued Identity Book No. 68774. The report shows the book was in the possession of the Immigration Service at Philadelphia (Ex. 5).

The Service also produced Identity Book No. 68774 in the name of Cheung Shui. It bears a photograph which the special inquiry officer stated was a good likeness of the respondent. From it, the special inquiry officer read into the record information showing that Cheung Shui was born at Po On, Kwang Tung Province, China on September 4, 1914 (p. 4).

The evidence we have set forth comes from official and required Service records or is otherwise competent. The arrival manifest (Form I-418) must be submitted by the master or agent of the vessel to the immigration officer at the point of first arrival, 8 CFR 251.1(a). The immigration officer who examines the crewmen listed on the manifest must show what action he took on the applications for admission of the crewmen listed. To show that he granted an alien crewman a conditional landing permit as a crewman he must use the symbol "D-1", 8 CFR 251.1(d). Such an authorization to land can be granted only if the crewman's passport is surrendered for safekeeping to the master of the arriving vessel, 8 CFR 252.1(d).¹

As soon as the master or agent of the vessel discovers that an alien crewman has illegally landed or deserted he must write to the immigration officer in charge of the port where the act occurred, giving him "the name, nationality, passport number" and other details concerning the crewman and "any other information and documents which might aid in his apprenenshion, including any passports surrendered pursuant to" 8 CFR 252.1(d), 8 CFR 251.2.

Thus, competent evidence in the possession of the Service before respondent's apprehension establishes that Cheung Shui, a Chinese native and national, was admitted to the United States as a crewman and deserted, Au Chiu Pang v. INS, 368 F.2d 637 (3 Cir., 1966), cert. denied 386 U.S. 1037 sustaining Matter of Pang, 12 I. & N. Dec. 489 (BIA, 1966); Valeros v. INS, 387 F.2d 921 (7 Cir., 1967); Williams v. Mulcahey, 250 F.2d 127 (6 Cir., 1957), cert. denied 356 U.S. 946 (1958), affirming Williams v. Butterfield, 145 F. Supp. 567 (E.D. Mich., 1956); Vlisidis v. Holland, 245 F.2d 812 (3 Cir., 1957); Coelho v. Brownell, 240 F.2d 635 (D.C. Cir., 1957); Doto v. United States, 223 F.2d 309, 310 (D.C. Cir., 1955), cert. denied 350 U.S. 847 (1955); United States v. Klissas, 218 F. Supp. 880, 883-884 (D.C. Md., 1963); Da Silva Pereira v. Murff, 169 F. Supp. 81 (D.C. N.Y., 1958); and Goncalves-Rosa v. Shaughnessy, 151 F. Supp. 906 (S.D. N.Y., 1957).

Do these documents relate to respondent? We find they do. The identity of names of the respondent and the crewman who is the subject of the evidence we have discussed and the failure of respondent to show that the records do not relate to him, although he had the opportunity to do so, permit the inference that the records relate to him, Valeros v. INS, supra; Au Chiu Pang v. INS, supra; Vlisidis v. Holland, supra; Da Silva Pereira v. Murff, supra. Moreover, we note the special inquiry officer stated that the photograph in the passport surrendered by the deserting crewman is a good likeness of the respondent. Finally, although it is unnecessary to rely upon the fact, we point out that respondent's failure to testify without having claimed the...