Matter of Sandoval, Interim Decision Number 2725
| Court | U.S. DOJ Board of Immigration Appeals |
| Citation | 17 I&N Dec. 70 |
| Docket Number | A-20824162,Interim Decision Number 2725 |
| Parties | MATTER OF SANDOVAL In Deportation Proceedings |
| Decision Date | 20 August 1979 |
In Deportation Proceedings
(1) Exclusionary rule is a "judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect...." United States v. Calandra, 414 U.S. 338, 348 (1974).
(2) The United States Supreme Court has never applied the exclusionary rule to exclude evidence from purely civil proceedings.
(3) The issue of whether the Fourth Amendment exclusionary rule should apply in deportation proceedings must be resolved upon a pragmatic analysis of the purposes underlying the rule, the efficacy of the rule as applied in deportation proceedings to serve its remedial objectives, the societal costs incurred by the exclusion of reliable and probative evidence from deportation proceedings, and the available alternatives to deter unlawful conduct by immigration officers.
(4) If an immigration officer violates an individual's Fourth Amendment rights during an investigation, the evidence resulting from the violation will be excluded from any subsequent criminal prosecution.
(5) The application of the exclusionary rule to deportation proceedings would not offer any significant additional disincentive to misconduct on the part of immigration officers.
(6) The application of the exclusionary rule to deportation proceedings would result in societal costs, which could be avoided if the more direct and timely alternatives, which presently exist, were utilized to curb misconduct by immigration officers.
(7) When the remote likelihood that the exclusion of evidence seized in violation of an individual's Fourth Amendment rights would significantly affect the conduct of immigration officers is balanced against the societal costs that could arise from such action and the alternatives available to compel respect for constitutional rights, neither legal nor policy considerations dictate the exclusion of such evidence from deportation proceedings.
(8) Even assuming that the alien's admissions as reflected on the Form I-213 ("Record of Deportable Alien") arose as a result of an unlawful search of her apartment, the Form I-213 was admissible at the deportation proceeding and established her deportability by clear, convincing and unequivocal evidence.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection
Lodged: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—In the United States in violation of law having failed to establish the time, place and manner of entry as required under sec. 291, I & N Act 8 U.S.C. 1361)
[17 I&N Dec. 71]
ON BEHALF OF RESPONDENT: Charles S. Sims, Esquire, Melvin L. Wulf, Esquire, American Civil Liberties Union, 22 East 40th Street, New York, New York 10016
Attorneys of Record: Leon Rosen, Esquire, 60 East 42nd Street, New York, New York 10017
Rhoda K. Dryer, Esquire, 17 Old Colony Drive, Larchmont, New York 10538
ON BEHALF OF SERVICE: George Indelicato, Appellate Trial Attorney
Lloyd A. Sherman, Trial Attorney
BY: Milhollan, Chairman; Maniatis and Maguire, Board Members. Concurring Opinion, Board Member Farb. Dissenting in Part and Concurring in Part Opinion, Board Member Appleman
The respondent appeals from a decision of an immigration judge dated September 30, 1975, finding her deportable as charged and ordering her deportation to Mexico. The appeal will be dismissed. We will, however, grant the respondent voluntary departure under section 244(e) of the Act, 8 U.S.C. 1254(e).
The respondent is a married 36-year-old native and citizen of Mexico. She entered the United States in March 1975. She and her husband crossed the border at night and were not inspected by immigration officers. The couple subsequently made their way to New Rochelle, New York.
On August 6, 1975, the respondent was taken into custody by immigration officers, who located her during a search of the building in which she resided. After being taken to a Service office and advised of her rights, she made a statement admitting her alienage and unlawful entry. She also supplied information resulting in the preparation of a Form I-213 ("Record of Deportable Alien").
On that same day, an Order to Show Cause was issued charging the respondent with being deportable under section 241(a)(2) of the Act, 8 U.S.C. 1251(a)(2), as one who entered the United States without inspection.
The deportation hearing was convened on August 22, 1975, and was conducted in several sessions, the last of which was on September 30, 1975. During these proceedings, an additional charge was lodged, alleging the respondent to also be deportable under section 241(a)(2) as one who was unlawfully in this country because she failed to establish the date, manner, and place of her entry as required under section 291 of the Act, 8 U.S.C. 1361.
By order dated September 30, 1975, the immigration judge found the respondent deportable as charged based on her statement of August 6,
1975, and on an admission made at the hearing that she was an alien followed by her refusal to answer subsequent questions regarding her entry.
Both below and on appeal, the respondent, through counsel, submits that her statement of August 6, 1975, and the resulting Form I-213, should have been suppressed as the "fruit of the poisonous tree" — it being alleged that the search of her apartment (which resulted in her detention) was in violation of the Fourth Amendment of the United States Constitution. It is also submitted that the respondent's admission of alienage before the immigration judge resulted from improper questioning subsequent to her invocation of her Fifth Amendment privilege against self-incrimination and that the admission, therefore, should not have been considered. The respondent further states that the immigration judge's conduct of the hearing evidenced a lack of impartiality and a denial of the respondent's Fifth Amendment due process right to a fair hearing. Finally, it is argued that the immigration judge improperly denied the respondent the privilege of voluntary departure after he refused to let her testify for the limited purpose of supporting her application for that relief.
As regards the evidence of deportability, we agree that the respondent's admission at the hearing concerning her alienage was elicited from her after she was improperly denied her Fifth Amendment privilege against self-incrimination. We will accordingly disregard the respondent's admission in this regard.1 See Tashnizi v. INS, 585 F.2d 781 (5 Cir.1978); Valeros v. INS, 387 F.2d 921 (7 Cir.1967); Estes v. Potter, 183 F.2d 865 (5 Cir.1950), cert. denied, 340 U.S. 920 (1951); Matter of R----, 4 I & N. Dec. 720 (BIA 1952). See also section 275 of the Act, 8 U.S.C. 1325.
In view of this finding, the sole evidence of record regarding deportability is that which the respondent alleges resulted from an unlawful search of her dwelling and which she submits should have been excluded from the proceedings below.
The facts of this case relating to the challenged search were not clearly developed in the 68-page record. Apparently, however, the respondent and her husband shared the third floor of a 3-story house with 2 other men and one of the men's children (some or all of these persons were related). The ground level apartment in the house belonged to the building's "caretaker" and was accessible by its own exterior door. The upper 2 stories were accessible by one outside entrance. This outside door was always kept locked and each of the tenants and the caretaker had a key. An inside stairway led from the second floor to the third floor, where the respondent resided. There was a door leading to the third floor of the house, which was kept closed, but which had no lock. There was no testimony as to whether the exterior of this door reflected that it led to a separate apartment.
According to the testimony of one of the inhabitants of the third floor of the house, at 6:00 a.m. on the morning of August 6, 1975, he received a telephone call warning him that immigration officers were coming. Approximately 15 minutes later he saw immigration officers outside the house. He did not hear the house bell ring or hear a knock, but assumed the caretaker let the officers into the locked building. Shortly thereafter, two immigration officers opened the door to the third floor area of the house, entered partially, knocked after they had stepped inside, and then searched the apartment.2 The respondent's witness testified that no consent was given to search. The Service concedes that the investigators had no warrant. The immigration judge did not require either investigator to testify at the hearing.
The respondent and her husband were subsequently taken into custody and transported to a Service office, apparently after admitting their unlawful status. At 2:15 p.m. that same day, after being advised of her rights, the respondent signed an affidavit, admitting her alienage and her illegal entry into this country. It is this statement and the I-213 prepared in conjunction with it that the respondent urges must be excluded from evidence as the product of an illegal search. See Wong Sun v. United States, 371 U.S. 471 (1963) (regarding the suppression of verbal statements). Exclusion is argued solely on Fourth Amendment grounds, as the respondent makes no claim on appeal that her statement was either involuntary or otherwise inadmissible.
On these facts, if we assume that evidence unlawfully seized by immigration officers must be excluded from deportation proceedings, we would find that the respondent had come forward with sufficient
proof to establish a prima facie case of illegality so as to require the Service either to assume the burden of justifying the manner which it obtained entry to the respondent's apartment or to establish that the...
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