Matter of Velasquez
| Decision Date | 09 April 1986 |
| Docket Number | Interim Decision Number 3011,A-26389579. |
| Citation | 19 I&N Dec. 377 |
| Parties | MATTER OF VELASQUEZ. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent has appealed the oral decision of the immigration judge rendered at the deportation hearing of August 17, 1983. That decision finds the respondent deportable pursuant to section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), as an alien who entered the United States without inspection, but grants the respondent the privilege of voluntary departure in lieu of deportation. The appeal shall be dismissed.
The issues raised by the respondent in this appeal require some understanding of the circumstances surrounding both his arrest and the granting of his motion for change of venue. Since the facts pertaining to these events are not discussed in the immigration judge's decision, we think it important to set them forth.
The respondent was arrested by officers of the Immigration and Naturalization Service on April 30, 1982, while he and several other men were leaving their place of work in Channelview, Texas.1 The respondent and the other men were taken to the Service offices in Houston, Texas. There the Service interviewed the respondent and commenced deportation proceedings against him by issuing an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S), alleging that he is a native and citizen of Colombia, who entered the United States without inspection in 1977, and charging him with deportability pursuant to section 241(a)(2) of the Act. The Service determined not to release the respondent on bond but to keep him in custody pursuant to 8 C.F.R. § 242.2(a) (1982). Accordingly, the respondent was flown to the Service's detention and processing center in El Paso, Texas, where he was kept in custody for 9 days until he secured his release. Since the Service had determined to keep the respondent in custody in El Paso, it also scheduled his deportation hearing for that city.
On May 7, 1982, an attorney (Velarde) in El Paso filed a Notice of Entry of Appearance as Attorney or Representative (Form G-28), notifying the Service that he was the respondent's attorney of record. On July 22, 1982, Velarde submitted a motion for change of venue requesting that the respondent's deportation hearing be moved to Houston, Texas. In the motion, attorney Velarde admitted all of the factual allegations in the Order to Show Cause, conceded the respondent's deportability, and requested that the hearing be moved to Houston, because the respondent lived in that city and would find it too inconvenient and costly to travel to El Paso. When the Service did not oppose the motion, the immigration judge issued an order on August 12, 1982, granting the request for a change of venue.
On March 14, 1983, a new attorney (Torres), located in Houston, entered his appearance as counsel for the respondent. At that time Torres also filed a suppression motion, requesting a separate hearing to determine whether admissions made by the respondent at the time of his arrest were coerced or obtained in violation of the respondent's fourth and fifth amendment rights and should be excluded from evidence at his forthcoming deportation hearing. This motion was supported by the respondent's affidavit attesting to the facts surrounding his arrest and questioning by the Service and by various newspaper articles describing the Service's general procedures during workplace searches.
The respondent's deportation hearing was convened in Houston, Texas, on August 17, 1983. The respondent was present at the hearing with his new counsel, Torres, who renewed the motion to suppress. The immigration judge denied the motion. Thereafter, the respondent refused to admit the allegations and charge of deportability and invoked the fifth amendment privilege against self incrimination when asked to testify about his immigration status. Since it is a crime to enter the United States without inspection, the immigration judge found the respondent had properly invoked the privilege against self incrimination. See section 275 of the Act, 8 U.S.C. § 1325 (1982). In order to prove the respondent's deportability, therefore, the Service introduced into evidence the motion for change of venue containing the admissions and the concession of deportability that had been made by the respondent's first counsel, Velarde. Counsel Torres objected to admission of the motion. He contended that the respondent had never authorized Velarde to concede deportability. Torres also contended that the admissions and the concession of deportability exceeded the scope of Velarde's representation of the respondent, because the respondent had understood Velarde to be representing the respondent only to the extent necessary to obtain a reduction in the amount of his bond. Counsel Torres requested that the respondent be given an opportunity to testify in support of these contentions. The immigration judge denied the request and admitted the motion into evidence. The immigration judge found the admissions and the concession in the motion to be sufficient to prove the respondent's deportability as charged. The immigration judge denied a request by counsel Torres to permit the respondent to testify about the facts surrounding his treatment by the Service at the time of his arrest and questioning. The request was denied on the ground that the circumstances surrounding these events were immaterial to the admissibility of the motion for change of venue.
On appeal, the respondent has argued that his arrest and subsequent questioning by the Service violated his constitutional rights and that the immigration judge erred in denying the motion for a separate suppression hearing. The respondent has also argued that the motion for change of venue was improperly admitted into evidence because it was not authenticated and because the admissions contained in the motion were not authorized by the respondent. He also contends that his right to confront the witnesses against him and his right to due process were violated when the immigration judge refused the request to allow the respondent to testify that his first counsel, Velarde, was never authorized to concede deportability.
We reject all of these contentions.
The immigration judge correctly denied the motion for a separate suppression hearing. The respondent requested a suppression hearing in order to litigate the legality of his arrest and the admissibility of unspecified admissions that he alleges resulted from his arrest and detention. However, the exclusionary rule, which requires a court to suppress evidence that is the fruit of an unlawful arrest or of other official conduct that violates the fourth amendment, does not apply in deportation proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). Moreover, the Service never introduced, or attempted to introduce, any evidence or admissions obtained from the respondent at the time of his arrest and detention. The only evidence submitted by the Service was the motion for change of venue, which was filed by attorney Velarde almost 3 months after the respondent's arrest. Since it was filed well after the respondent's arrest, this motion is not tainted by any violations of the fourth or fifth amendments that may have occurred at the time of the respondent's arrest. Magallanes-Damian v. INS, 783 F.2d 931 (9th Cir. 1986); Hoonsilapa v. INS, 575 F.2d 735 (9th Cir.), modified, 586 F.2d 755 (9th Cir. 1978). Thus, the motion to suppress and its supporting affidavit were immaterial to the admissibility of the motion for change of venue, and the request for a suppression hearing was properly denied. Cf. Magallanes-Damian v. INS, supra; Hoonsilapa v. INS, supra.
The contention that the motion for change of venue was erroneously admitted because it was not sufficiently authenticated has no merit. The regulations specifically authorize the immigration judge to receive into evidence any prior written statement, made by a respondent or by any other person, that is material and relevant to the issues in the case. See 8 C.F.R. § 242.14(c) (1986). Furthermore, documentary evidence in deportation proceedings need not comport with the strict judicial rules of evidence; rather, in order to be admissible, such evidence need only be probative and its use fundamentally fair, so as not to deprive an alien of due process of law. See, e.g., Trias-Hernandez v. INS, 528 F.2d 366, 369 (9th Cir. 1975); Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir. 1974); cf. INS v. Lopez-Mendoza, supra, at 1050-51 & n.5.
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Qureshi v. Attorney Gen. United States
...absent a showing of egregious circumstances. Calla-Collado v. Att'y Gen., 663 F.3d 680, 683 (3d Cir. 2011); In re Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986). Qureshi has not shown egregious circumstances here. Qureshi's claim that his counsel provided ineffective assistance fails becaus......