Shu Fuk Cheung v. Immigration and Naturalization Serv.
| Decision Date | 20 April 1973 |
| Docket Number | No. 72-1482.,72-1482. |
| Citation | 476 F.2d 1180 |
| Parties | SHU FUK CHEUNG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Bruce W. Okney, Minneapolis, Minn., made argument for petitioner.
Richard I. Chaifetz, Atty., Dept. of Justice, Washington, D. C., made argument for respondent.
Before LAY and BRIGHT, Circuit Judges, and NICHOL,* District Judge.
Petitioner, Shu Fuk Cheung, appeals the Board of Immigration Appeals' affirmance of the Special Inquiry Officer's decision finding him in violation of 8 U.S.C.A. Sec. 1251(a)(2), and ordering his deportation to Hong Kong.
On August 17, 1971, petitioner was apprehended at the Foo Chu Cafe in Minneapolis, Minnesota, during an area control-illegal entry check made by two Immigration Service investigators. The investigators interviewed the petitioner with regard to his immigration status and determined that he could not satisfactorily substantiate his right to be in the United States. Petitioner was arrested and escorted to the Immigration Service offices where a sworn statement was taken. Through the services of an interpreter, petitioner was advised of his constitutional rights to remain silent and to have counsel present. Cheung signed a waiver of these rights. Questioning by the investigators elicited petitioner's landing permit and a number of interpreted verbal responses which an investigator incorporated into a hand-written affidavit signed by petitioner, providing the basis for detaining Cheung for possible deportation.
On August 18, 1971, a hearing on an order to show cause why Shu Fuk Cheung should not be deported was continued at petitioner's request to afford him an opportunity to obtain counsel. Cheung appeared at the reconvened hearing on September 21, 1971, represented by counsel. At his attorney's direction Cheung remained silent to all inquiries. Thus the only testimony and evidence produced was the government's.
Petitioner Cheung contends that his apprehension during an area control search by immigration officers, who entered the restaurant knowing only that the restaurant employed oriental persons and served oriental food, was illegal. He also urges that the government failed to sustain its burden of proof on the issue of deportability. Both issues were decided adversely to petitioner by the Board of Immigration Appeals. We affirm.
The scope of this court's review is limited to the administrative record, and the findings of fact therein are taken as conclusive "if supported by reasonable, substantial, and probative evidence on the record considered as a whole" 8 U.S.C.A. Sec. 1105a; Au Yi Lau v. United States Immigration and Naturalization Service, 144 U.S.App.D.C. 147, 445 F.2d 217, 219 (1971). The paucity of the immediate record is attributable to the decision of petitioner's counsel to instruct his client to remain mute before the Special Inquiry Officer. It is upon that record that this court reviews petitioner Cheung's appeal.
The administrative record is barren of any of the surrounding circumstances preceding the apprehension which petitioner contends is illegal. Counsel for petitioner presumes that the seizure took place in the kitchen of the cafe, that the officers were without authority to enter that kitchen, and that the sole purpose for the officers' presence in the kitchen was for an area control-illegal entry check. The record is lacking any factual basis for these assertions. The record produced by the administrative process and presently before this court for review is void of any evidence to support Cheung's complaint that he was seized, interrogated and arrested unconstitutionally.
The record reveals that the immigration officers apprehended Cheung during an area control-illegal entry check of an oriental cafe.1 His answers to their inquiries were, evidently, of such an unsatisfactory nature that an arrest was made. Even from the sketchy record now before us we can conclude that Cheung must have been detained temporarily for this interview.
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