Matter of Garcia

• Decision Date: 16 January 1980
• Docket Number: A-22290411,Interim Decision Number 2778
• Citation: 17 I&N Dec. 319
• Parties: MATTER OF GARCIA In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

17 I&N Dec. 319

MATTER OF GARCIA

In Deportation Proceedings

Interim Decision Number 2778

A-22290411

Board of Immigration Appeals.

Decided by Board January 16, 1980

(1) Respondent who testified that he made admission of alienage only after being led to believe by Service officers that his deportation was inevitable, that he had no rights whatsoever, that he could not communicate with his counsel, and that he could be detained without explanation of why he was in custody, came forward with a prima facie showing that this admissions were involuntarily given.

(2) Where Service presents no contrary evidence after a respondent makes a prima facie showing that his admissions were involuntarily made and where only those admissions support finding of deportability, the proceedings will be terminated.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection

ON BEHALF OF RESPONDENT: Lawrence Kleinman, Esquire, 519 S. W. Third, Suite 418, Portland, Oregon 97204

ON BEHALF OF SERVICE: Charles L. Stevenson, Acting Trial Attorney.

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent appeals from a decision of the immigration judge dated September 14, 1977, finding him deportable as charged, but granting him the privilege of voluntary departure. The appeal will be sustained and the proceedings terminated.

The respondent is a 20-year-old native and citizen of Mexico. He was apprehended at a farm in Oregon in August 1977. On August 17, 1977, he signed a Form I-274 ("Request for Return to Mexico") which reflected that he was a citizen of Mexico illegally in the United States and that he wished to voluntarily depart to that country. After consulting with an attorney that same day, however, the respondent advised the Service that he desired to have a hearing to determine his deportability. An Order to Show Cause was then issued charging him with being deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as an alien who entered the United States without inspection.

At a deportation hearing held in September 1977, the respondent, through counsel, objected to the admission into evidence of the Form I-274 and a Form I-213 ("Record of Deportable Alien"), which also reflected that on August 17, 1979, he had conceded his alienage and entry into the United States without inspection. It was alleged that his admissions reflected in those two documents were a direct result of the respondent's illegal arrest, that they were made only after the Service officers involved in the case had failed to advise the respondent of his rights as required under the Constitution and governing Service regulations, and that the admissions were coerced and involuntary.

The respondent testified at the hearing in support of the suppression motion. He stated that he was arrested on a farm on August 16, 1977. He testified that after his arrest he was handcuffed and taken to his home where he was told to gather his belongings because he was going to be deported to Mexico. While at his home, he saw his employer and asked him to call his attorney. The respondent testified that he had his attorney's telephone number written in ink on his arm, but while he was showing it to his employer an immigration officer grabbed his arm and rubbed the number off.

The respondent further stated that on being taken to the District Office he was placed in detention, was not told why he had been arrested, was not advised that he had a right to...