GARCIA-FLORES

Interim Decision #2780

MATTER OF GARCIA-FLORES

In Deportation Proceedings

A-22315032

Decided by Board February 27, 1980

(1) Violation of a regulatory requirement by a Service officer can result in evidence

being excluded or proceedings invalidated where the regulation in question serves a

purpose of benefit to the alien and the violation prejudiced interests of the alien which

were protected by the regulation.

(2) Where respondent alleged violation of the "warning" requirements set forth in 8

C.F.R. 287.3, record is remanded to clarify the regulatory requirements in this regard,

and to provide the respondent the opportunity to demonstrate that the investigating

officer's actions prejudiced her interests in a manner affecting the outcome of the

deportation proceedings.

CHARG E

Order. Act of 1952—Section 241(a)(2), I&N Act (8 U.S.C. 1251(a)(2)1—Entry without

inspection

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE_

Carlos Vellanoweth, Esquire Ingrid K. Hrycenko

931 N. Vignes Street, Suite 2 Trial Attorney

Los Angeles, California 90012

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members

In a decision dated October 20, 1977, an immigration judge found the

respondent deportable as charged and granted her voluntary depar-

ture. The respondent appeals from this decision. The record will be

remanded.

The respondent is a 33-year-old native and citizen of Mexico. On July

28, 1977, an Order to Show Cause was issued, charging her with

deportability under section 241(a)(2) of the Immigration and National-

ity Act, 8 U.S.C. 1251(a)(2), as one who entered the United States

without inspection. At a deportation hearing at which she was

represented by counsel, the immigration judge found that the respond-

ent's deportability had been established by clear, convincing, and

unequivocal evidence. The basis of this finding was the testimony of a

Service investigator and two Service forms presented into evidence a

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Form 1-213, "Record of Deportable Alien," and a Form 1-274, "Request

for Return to Mexico." This evidence showed that the respondent had

entered this country without inspection by paying a smuggler. Objec-

tions by the respondent's attorney that this evidence was inadmissible

because the respondent had not been warned of her rights were

overruled.

On appeal, the respondent contends that the immigration judge

erred in denying her motion to suppress the evidence in question in

view of the testimony of the Service investigator that he had not

advised the respondent of her rights under 8 C.F.R. 287.3 and under the

fifth amendment. She also contends that the immigration judge should

have allowed her to testify regarding the circumstances of her arrest

and interrogation.

We will first address the assertion that the evidence used to estab-

lish deportability was inadmissible because the respondent had not

been warned of her rights under the fifth amendment and 8 C.F.R.

287.3.

The respondent was arrested without a warrant during a "survey" of

a food processing plant. The only Service officer who testified at the

hearing stated that although he had taken part in the "survey," he

could not recall whether he had arrested the respondent. He stated

that he had not conducted the initial field interview, but that he had

interviewed the respondent at the District Office. During this latter

interview, the respondent "readily answered" the officer's questions,

admitting her alienage and the time and manner of her entry. She

initially requested voluntary departure and the Form 1-274 was pre-

pared along with the Form I-213.'

This interview was subject to the provisions of 8 C.F.R. 287.3, which

then provided in relevant part

An alien arrested without a warrant of arrest under the authority contained in section

287(a)(2) of the Immigration and Nationality Act shall be examined as therein

provided by an officer other than the arresting officer, unless no other qualified officer

is readily available and the taking of the alien before another officer would entail

unnecessary delay, in which event the arresting officer, if the conduct of such examina-

tion is a part of the duties assigned to him, may examine the alien.... If the

examining officer is satisfied that there is prima facie evidence establishing that the

arrested alien is in the United States in violation of the immigration laws, further

action in the case shall be taken as provided in Part 242 of this chapter. An alien

arrested without warrant of arrest shall be advised of the reason of his own arrest and

his right to be represented by council (sic) of his own choice, at no expense to the

Government. He shall also be advised that any statement he makes may be used

against him in a subsequent proceeding and that a decision will be made within 24

hours or less as to whether he will be continued in custody or released on bond or

' Subsequent to this interview, the respondent retained counsel, withdrew the request

for voluntary departure, and asked for a hearing to determine deportability.

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recognizance ....

8 C.F.R. 287.3 (1977).

The officer who interviewed the respondent testified that he had not

advised her of the "Miranda" warnings. These warnings were not

necessary. See Navia-Duran v. INS, 568 F.Zd 803 (1 Cir. 1977); Trio's-

Hernandez v. INS, 528 F.2d 366, 368 (9 Cir. 1975). He further testified,

however, that he did not advise her that she "had a right to an

attorney."' Such a warning was required to be given at some point

under the provisions of 8 C.F.R. 287.3.3

The failure to comply with a regulatory requirement of this nature

would be relevant in assessing any question of voluntariness. See

Navia-Duran v. INS, supra at 808. Moreover, the further question

arises of whether or not a violation of 8 C.F.R. 287.3, without a showing

that the statement that followed was involuntarily made, may lead to a

finding that the statement is inadmissible. Our conclusion is that such

a violation may lead to a finding of inadmissibility under certain

circumstances.

It has been often stated that an "agency of the government must

scrupulously observe rules, regulations, or procedures which it has

established" and that when "it fails to do so, its action cannot stand

and courts will strike it down ... " United States v. Heffner, 420 F.2d

809, 811 (4 Cir. 1969), and the cases cited therein. A rigid rule has not

emerged, however, under which every violation of an agency regulato-

ry requirement results in the invalidation of all subsequent agency

action or the exclusion of evidence from administrative proceedings.

See United States v. Caceres, 99 S. Ct. 1465 (1979); American Farm

Lines v. Black Ball Freight Service, 397 U.S. 532 (1970); United States v.

Calderon Medina, 591 F.2d 529 (9 Cir. 1979); United States v. Piazzas,

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457 F. Supp. 1350 (W.D. Pa. 1973). Once one goes beyond stating these

Although this answer arose in the context of questioning the officer about "Miranda"

warnings, we must assume on this record that no warning as to the more limited right to

counsel as required under 8 C.F.R. 287.3 was given.

' The requirement in 8 C.F.R. 287.3 (1977) concerning advice as to right to counsel was

unclear in two respects. First, it was not clear whether the warning was required at the

Onset of the interview or only alter it was determined that a prima facie rose of

deportability existed. The regulation has since been revised (or clarified) to provide that

the advice is not necessary until it is determined that a prima facie case exists. See 8

C.F.R. 287.3 (February 22, 1979). The regulation was also not clear on its face as to the

natures of the advice required (i.e., whether an alien should be advised of a limited right

to counsel at that interview or instead advised only of a limited right to counsel at any

deportation or exclusion proceeding should such proceedings become necessary). The

regulation has been understood to require the latter more limited advice (see Navia-

Duran v. INA supra at 809) and the Service apparently intended this more limited

requirement (see 44 Fed. Reg: 4652 (1979)). See also Crosland, Arrest, Interrogation and

Detention of Aliens and the Munoz Case, Interpreter Releases, Vol. 56, No. 34, p. 408

(Aug. 31, 1979).

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two general principles, however, the dividing line between those ad-

ministrative regulatory violations which will or will not render subse-

quent agency actions invalid becomes more difficult to establish.

The Supreme Court has stated that the "duty to enforce an agency

regulation is most evident when compliance with the regulation is

mandated by the Constitution or federal law." United States v. Caceres,

supra at 1470. Thus, in Bridges v. Wixon, 326 U.S. 135, 152-153 (1945),

the Court ruled invalid a deportation ordered on the basis of state-

ments which were not taken in compliance with rules designed "to

afford [the alien] due process of law" by providing "safeguards against

essentially unfair procedures." The Court in Bridges reaffirmed the

statement in U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155 (1923),

that "one under investigation with a view to deportation is legally

entitled to insist upon observance of rules promulgated by the Secreta-

ry [of Labor] pursuant to law." Thus, where agency action is required

by constitutional or statutory law, violation of an implementing regu-

latory requirement is subject to serious challenge.

However, even where regulations are not founded on a constitutional

or statutory requirement, an agency still has a "duty to obey them."

United States v. Caceres, supra at 1471, n. 14. Where "the rights of

individuals are affected, it is incumbent upon agencies to follow their

own procedures .... even where the internal procedures are possibly

more rigorous than otherwise would be required." Morton v. Ruiz, 415

U.S. 199, 235 (1974). See also Vitarelli v. Seaton, 359 U.S. 535 (1959);

Service v. Dulles, 354 U.S. 363 (1957); U.S. ex rel. Accardi v. Shaugh-

nessy, 347 U.S. 260 (1954). But see American Farm Lines v. Black Ball

Freight Service, supra. '

In reviewing these precedents, the United States Court of Appeals

for the Ninth Circuit has concluded that a two-prong test should be

used to determine whether deportation proceedings should be invali-

dated where a Service regulation has been violated. See United States v.

Calderon Medina, supra. First, the regulation in question must serve a

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"purpose of benefit to the alien." Calderon Medina at 531. Secondly, if

it does, the Ninth Circuit has held that the regulatory violation will

render the proceeding unlawful "only if the violation prejudiced inter-

ests of the alien which were protected by the regulation." Calderon-

Medina, id. In that case, where detained aliens had not been advised at

the time of their deportation proceedings of the right to communicate

with a consular or diplomatic officer of their country of nationality,

criminal proceedings were remanded to allow the aliens the opportuni-

ty to "specifically" identify any prejudice resulting from the violation.

The District Court was directed to determine whether the violation

"harmed the aliens" interests in such a way as to affect potentially the

outcome of their deportation proceeding." Calderon-Medina at 532.

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We will adopt this "prejudice" test set forth by the Ninth Circuit. In

those eases where agency action has been invalidated by the Supreme

Court there has either been an expressed or clearly apparent prejudice

to the individual as a result of a violation of a rule or regulation

promulgated at least in part to bestow a procedural or substantive

benefit on the individual in question. Where compliance with the

regulation is mandated by the Constitution, prejudice may be

presumed. Similarly, where an entire procedural framework, designed

to insure the fair processing of an action affecting an individual is

created but then not followed by an agency, it can be deemed

prejudicial. See Vitarelli v. Seaton, supra; Service v. Dulles, supra; U.S.

ex rel. Accardi v. Shaughnessy, supra. As a general rule, however,

prejudice will have to be specifically demonstrated.

We do not find that the case before us is one in which the claimed

regulatory violation may be presumed to have prejudiced the respond-

ent. We are satisfied, however, that 8 C.F.R. 287.3 was intended to serve

a purpose of benefit to the alien. We will accordingly remand the record

to allow the respondent the opportunity to demonstrate that the

investigating officer's action prejudiced her interests that were pro-

tected by the regulation and that such prejudice affected the outcome

of the deportation proceedings. In this regard, it should be determined

whether evidence supporting a finding of deportability arose prior to

the apparent regulatory violation. Moreover, on remand the parties to

the proceeding should be given the opportunity to present their posi-

tions regarding the ambiguity of the regulatory requirements at issue

here. See footnote 3, supra. Further, the respondent should be given

the opportunity to testify concerning the circum stances of her arrest

and questioning.

ORDER' The record is remanded for further proceedings consist-

ent with this opinion.

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