Navia-Duran v. Immigration and Naturalization Service, NAVIA-DURA

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before COFFIN; TUTTLE
• Citation: 568 F.2d 803
• Parties: Maria Irmaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Decision Date: 09 September 1977
• Docket Number: P,NAVIA-DURA,No. 77-1160

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568 F.2d 803 Maria Irma NAVIA-DURAN, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 77-1160. United States Court of Appeals,
First Circuit. Heard Sept. 9, 1977.
Decided Dec. 30, 1977.

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Harvey Kaplan, New York City, with whom Lawrence D. Bastone, Alberto O. Jimenez, Adrienne Collier, and Stephen H. Oleskey, and Hale & Dorr, Boston, Mass., were on brief, for petitioner.

Lauren S. Kahn, Dept. of Justice, Washington, D.C., with whom Philip Wilens, Chief, Government Regulations and Labor Section, Crim.Div., and James P. Morris, Dept. of Justice, Washington, D.C., were on brief, for respondent.

Before COFFIN, Chief Judge, TUTTLE, ^* Circuit Judge, WOLLENBERG, ^** District Judge.

TUTTLE, Circuit Judge.

The appellant, Maria Irma Navia-Duran, is a 53-year-old native of Chile who allegedly entered this country on a temporary visitor's visa in 1974 and remained beyond its expiration. On the night of January 13-14, 1976, Ms. Navia-Duran was questioned by agents of the Immigration and Naturalization Service (INS) at her home and at INS headquarters in Boston concerning her alleged alien status. Following approximately four hours of interrogation, from 10 p.m. until 2 a.m., Ms. Navia-Duran signed a statement admitting her illegal presence in this country. On the sole basis of that statement, an immigration judge found Ms. Navia-Duran deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1970), because she had remained in the United States longer than permitted. The judge granted her one month for voluntary departure with an alternate order of deportation to Chile. The Board of Immigration Appeals (BIA) affirmed the order on March 9, 1977.

Ms. Navia-Duran seeks review in this court under 8 U.S.C. § 1105a, asserting, among other things, that her statement should not have been used against her because it was the product of psychological coercion, intimidation, and misrepresentation of facts on the part of her INS interrogators. We find from the totality of circumstances surrounding Ms. Navia-Duran's apprehension and interrogation that

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the order of deportation was rendered in violation of due process. Accordingly, we vacate the order and remand for a new hearing in which her rights are properly protected.

In affidavits accompanying prehearing motions, the appellant and three other affiants described the events leading up to the deportation hearing. The INS did not submit any counter-affidavits or dispute the accuracy of Ms. Navia-Duran's account of the facts, except for one fact which will be discussed below. From these affidavits it appears that early in the evening of January 13, 1974, two of the appellant's housemates were detained by INS agents at a Boston restaurant, questioned about their alien status, and taken to their residence to get their identification papers. Ms. Navia-Duran's roommate, who was at home when the group arrived, was also questioned. The agents searched the apartment, including the appellant's bedroom, without warrant or consent, and allegedly seized some papers. Two of the three aliens were taken to INS offices, served with orders to show cause why they should not be deported, and held overnight in jail.

Later that same night, at approximately 10 p.m., Ms. Navia-Duran was approached from behind as she was about to enter her apartment. Without addressing her by name, a man identified himself as an INS agent and asked if she spoke English. Ms. Navia-Duran responded that she spoke Spanish. The agent requested identification, which she said was inside the apartment. Extremely frightened by this late-night approach and convinced that she had no choice but to cooperate, Ms. Navia-Duran opened her door and was followed in by this agent and by a second man who identified himself as Mr. Constance. Ms. Navia-Duran produced numerous documents, all of which were confiscated. The agents questioned her in Spanish for approximately one hour concerning her presence in the United States. During this period, Agent Constance told Ms. Navia-Duran that she must return to her native Chile immediately.

At approximately 11:30 p.m., the agents took Ms. Navia-Duran to the INS office and continued questioning her until 2 a.m. Constance showed her a calendar and told her that she must leave the country in two weeks. When the appellant protested that she needed more time, the agent reiterated that she must leave in two weeks; he characterized his offer as a fair deal for her. Throughout the early morning session, Constance insisted that she had no choice but to accept the two-week departure deadline. Fearing that she would not be permitted to go home until she cooperated, Ms. Navia-Duran signed a statement which admitted that she had entered this country on a three-month visitor's visa in 1974 and had never received an extension of time.

Her statement was made in Spanish and transcribed by Agent Constance in English upon an INS form which the appellant signed. This form contained, in addition to Ms. Navia-Duran's admission, a printed recitation in English that the appellant had been advised that her statement must be freely and voluntarily given, that it could be used against her in a subsequent proceeding, and that she had the right to remain silent, to seek advice of a lawyer before answering questions, to terminate the interrogation at any time, and to have a lawyer appointed for her if she could not afford one. The form also stated that her statement was taken under oath.

Ms. Navia-Duran steadfastly denies that the printed portion of the form was read or explained to her. She claims that she was not advised of any rights, including the right to a deportation hearing. On the contrary, she was led to believe that her fate rested solely in the hands of Agent Constance, who repeatedly represented to her that the best deal available to her was his offer to delay her departure by two weeks.

Before leaving the INS office, the appellant was told to return the next day to complete her travel arrangements. Ms. Navia-Duran sought out an attorney, who explained her right to a deportation hearing. He accompanied her back to INS headquarters

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at 2 p.m. that same day and requested a hearing for his client, over the opposition of Agent Constance, who allegedly yelled at the attorney, called him an idiot, and said that he would not give that attorney's clients any more breaks. According to the attorney's affidavit, the agent stated that he had been "good to (Ms. Navia-Duran) because of her age," but, because she was now insisting on a hearing, the Service would recommend against voluntary departure. Ms. Navia-Duran was then served with an order to appear for a hearing on January 21 and show cause why she should not be deported.

Prior to her deportation hearing, the appellant moved to suppress the statement made during her interrogation and to subpoena certain witnesses to testify in her behalf. ¹ The motion to suppress asserted various Fourth Amendment violations, including Ms. Navia-Duran's arrest without warrant or probable cause and the earlier search of her bedroom, and claimed that these illegalities had tainted her statement. The subpoenas would have required the presence of the owner of the restaurant where the appellant's housemates were apprehended as well as Agent Constance and other INS officials. In support of these motions, the appellant submitted her own affidavit and affidavits from two of her housemates and her attorney. None of these prehearing filings specifically alleged that Ms. Navia-Duran's statement had been coerced, although her affidavit makes clear her contention that the statement was extracted in an atmosphere of ignorance, stress, and misleading information.

At the January 21 hearing before an immigration judge, ² Ms. Navia-Duran remained silent upon advice of counsel, calling upon the Government to prove its case. She did give her name and acknowledged that she understood the charge against her. The immigration judge denied the prehearing motions because he considered the manner of her arrest immaterial to the question of her deportability.

When the statement was introduced into evidence by the INS attorney, the appellant's attorney objected on the same Fourth Amendment grounds specified in the motion to suppress. Additionally, the attorney asserted that the form had not been properly executed because the space for a witness' signature was blank and because Ms. Navia-Duran had not been advised of her rights before making the statement. His objections were overruled, and the statement was received in evidence ³ without any testimony concerning the circumstances of its execution. Ms. Navia-Duran refused to state whether the signature and initials on the form were hers. No one from the INS appeared to authenticate the statement as the one made by Ms. Navia-Duran, nor did any INS officer testify that the statement was made under oath, although the form recites that fact. Apparently neither Agent Constance nor any other INS official attended the hearing. No other evidence was introduced on the issue of deportability, although Ms. Navia-Duran did answer questions on the issue of voluntary departure. ⁴ She was granted one month in which to depart voluntarily in lieu of deportation.

In his oral opinion, the immigration judge held that, because the appellant did not deny the truth of any facts in her statement, that statement constituted clear, unequivocal, and convincing evidence of deportability, as required by 8 C.F.R. § 242.14(a). He stated that there was no evidence that the statement was involuntary even though she claimed that she was not informed of her rights, but he did not dispute

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the credibility of her affidavit. In fact, he relied upon information contained in it to support his conclusion that the statement used against her was hers.

On appeal to the Board of...