Matter of Pang
| Decision Date | 09 June 1965 |
| Docket Number | A-15169631,Interim Decision Number 1479 |
| Citation | 11 I&N Dec. 213 |
| Parties | MATTER OF PANG<SMALL><SUP>*</SUP></SMALL> In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The special inquiry officer found that respondent is 34 years old, married, male, alien, a native and citizen of China, who last arrived in the United States at New York on September 4, 1962. The special inquiry officer found further that he is a crewman who was refused permission to go ashore but that he did go ashore, and has remained in the United States since that date. The special inquiry officer found respondent deportable on the charge set forth above and ordered him deported to the Republic of China on Formosa.
Respondent requests termination of these proceedings on the ground that the above-found facts are not established by the record. Respondent declined, through counsel, to request voluntary departure from the United States, and he made no application for temporary withholding of deportation under section 243(h) of the Immigration and Nationality Act. He appeals from the special inquiry officer's finding that he is deportable. The appeal will be dismissed.
The following facts are admitted: On November 4, 1964, two investigators for the Immigration and Naturalization Service stopped at a restaurant in Allentown, Pennsylvania, on a routine check. They went directly to the kitchen, identified themselves as investigators for the Immigration and Naturalization Service, talked to Mr. Low, one of the cooks, and then to respondent. The record contains an affidavit dated November 6, 1964, executed at Philadelphia, Pennsylvania, referred to hereinafter as Exhibit 2. Exhibit 2 was written by Harold Stokes, one of the investigators, from information taken through an interpreter for the Immigration and Naturalization Service, Mr. Marvin Kan.
Respondent alleges with regard to Exhibit 2 that it was improperly admitted into evidence: (1) in violation of the respondent's constitutional rights under the Fifth Amendment, (2) in violation of the rules of evidence concerning authentication and that a proper foundation was not laid, (3) in violation of the Supreme Court decisions guaranteeing the right to an attorney at the time an investigation for deportation is initiated. Respondent further alleges that the Immigration and Naturalization Service did not sustain its burden of proof in the deportation hearing.
Exhibit 2, Affidavit, is written on Form I-215A which has at the top a printed acknowledgment by the affiant stating, "I, --------, acknowledge that the above-named officer has identified himself to me as an officer of the United States Immigration and Naturalization Service authorized by law to administer oaths and take testimony in connection with the enforcement of the Immigration and Naturalization laws of the United States. I am willing to make a sworn statement before him. I understand that any statement which I make must be freely and voluntarily given and that it may be used by the Government as evidence in any proceedings against me or any other person. Being duly sworn, I make the following statement freely and voluntarily:". In this affidavit respondent stated that he was born in China on October 2, 1930, that he is a Chinese citizen, that neither of his parents was ever a United States citizen or resident in this country. He stated that he arrived in the United States at New York September 4, 1962, and was refused permission to go ashore by the immigration officers, but that he went ashore with his "boss, the bosun" between 6 p.m. and 8 p.m. He further stated generally his movements from town to town since his entry, gave his Social Security number, and stated that he had come to the United States only once before—as a member of the SS "Hindustan" in 1961 or 1962 at which time he was refused shore leave at Norfolk, Virginia. The affidavit is signed "Ah Chiu Pang" both on pages 1 and 2. A certification by Mr. Kan, the interpreter, on page 2 declares (in part), "I read the foregoing to Ah Chiu Pang and that he stated that -------- understood -------- were true and correct".
Respondent's hearing was called for March 2, 1965, at Philadelphia, Pennsylvania. He requested a continuance to get a lawyer. He was informed that the order to show cause had instructed him to appear with a lawyer if he wished to be represented. He was nevertheless, given until March 12, 1965, to secure counsel. At the hearing on March 12, and on March 19, 1965, respondent stated his name and where he resides, and he declined to answer all other questions on the ground that he was invoking the Fifth Amendment.
Mr. Harold Stokes, the investigator for the Immigration and Naturalization Service, testified that Allentown, Pennsylvania, is part of his District, and that he works out of the Philadelphia District office. He testified that he and another investigator were making a routine search in Allentown, because there had recently been a number of desertions from Chinese vessels in that district. Mr. Stokes identified respondent as the person, Ah Chiu Pang, whom he found at Allentown working in the kitchen of the Rubes' Restaurant. First the investigators showed him their credentials and identified themselves as immigration officers. Respondent was asked for his passport or any other form of identification. He admitted that he had no papers, and that he was prepared to go with them. Mr. Stokes testified that respondent said in English, "I do not have any papers". Otherwise, the conversation between the investigators and respondent was through Mr. Low, a Chinese cook in the restaurant kitchen who acted as interpreter. They next saw him in the Philadelphia office, perhaps two days later, at which time a statement was taken from respondent. This statement was written in Mr. Stokes' handwriting and taken through Mr. Kan, a regular Immigration and Naturalization Service interpreter. Mr. Stokes testified that he placed respondent under oath, and respondent signed the affidavit. Mr. Stokes also testified that the respondent was told that the affidavit was a voluntary statement, that it could be used in any proceeding against him, and that he did not ask to be represented by counsel.
Counsel contends that Exhibit 2 is not properly identified or related to respondent, in that Mr. Kan, the interpreter, testified that he did not specifically remember respondent, and could not identify respondent as the person who signed the statement; he could only testify as to the invariable procedure followed in all cases. Mr. Kan...
To continue reading
Request your trial