CARRILLO

Interim Decision #2717

MATTER OF CARRILLO

In Deportation Proceedings

A-23006036

Decided by Board July 10, 1979

(1)The immigration judge's denial of a continuance did not result in a denial of a fair

hearing, as two continuances totaling 2 weeks had already been granted, counsel had

stated her readiness to proceed after the first continuance, and the request was based

upon the unsupported conjecture that the Service's evidence of deportability would

arise from the respondent's previous arrest.

(2) Where the respondent moves to continue the case for further preparation, an

immigration judge is entitled to make observations on the nature and complexity of

the case presented to him based upon his experience in similar cases, and such

observations do not necessarily imply prejudgment.

(3)It is not necessary to decide if the respondent was deprived of the right to counsel,

and thus due process, when his attorney voluntarily left the hearing room, because the

respondent had, before that point, with counsel present, admitted his alienage, and

this admission, with section 291, was sufficient to establish his deportability. Matter of

Gonzalez, 16 I&N Dec. 44 (BIA 1976).

(4)A respondent charged with entry without inspection, a federal criminal offense under

section 275 of the Immigration and Nationality Act, 8 U.S.C. 1325, could refuse to

answer, on Fifth Amendment grounds, any question he reasonably believed might

have a tendency to incriminate him or furnish proof of a link in a chain of evidence.

Matter of R—, 4 I&N Dec. 720 (ETA 1952).

(5)Neither the Service Trial Attorney nor the immigration judge is in a position to offer

immunity from criminal prosecution.

(6)A District Director's decision not to present a case for prosecution because, according

to his understanding, it belongs to a class which the United States Attorney has

judged not to warrant criminal prosecution, is not equivalent to a grant of immunity,

whatever the practical effects may be, and a respondent cannot be made to testify

after he has invoked his right against self-incrimination, simply upon the presenta-

tion of such an assurance.

(7)Where deportability has been established by the respondent's admission of alienage

before the invocation of his right against self incrimination, the respondent's tes-

-

timony following the immigration judge's incorrect advice to the respondent that he

could not invoke this privilege is disregarded, and the respondent was not deprived .of

a fair hearing

CHARGE:

Order. Act of 1952—Sec. 241(a)(2) (8 U.S.C. 1251(a)(2)]—Entered without inspection

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Interim Decision #2717

ON BEHALF OF RESPONDENT: ON BEHALF OF Ssavicc

William Blum, Esquire Ingrid K. Hrycenko

Clinics. Legal del Pueblo Trial Attorney

712 S. Grandview

Los Angeles, California Doom

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

In a decision dated June 9, 1978, an immigration judge found the

respondent deportable as charged and granted him the privilege of

voluntary departure. The respondent appeals from this decision: The

appeal will be dismissed.

On appeal, the respondent contends that for a variety of reasons he

was denied a fair hearing. He claims that the immigration judge

abused his discretion in denying a request of a reasonable continuance,

and in denying his right to counsel. He also asserts that he was denied

due process because he was coerced into abandoning his Fifth Amend-

ment right against self-incrimination, and also because the immigra-

tion judge was prejudiced and had prejudged the case.

After reviewing the record, we have concluded that this latter con-

tention of prejudgment is without merit. The immigration judge is

entitled to make observations on the nature of a case presented to him.

This is especially true when a request for a continuance is made, as in

this case, where the counsel for the respondent stated that the case

was legally and factually complex. It was not evident to the immigra-

tion judge, and is not evident to us, that there were 120 witnesses

whose testimony was necessary to an adjudication of the charge of

entry without inspection. Having handled numerous cases of the same

nature previously, the immigration judge was well-qualified to com-

ment on the complexity of the case as it was presented to him. In

addition, he did indicate that he would be willing to adjourn the

hearing if it developed that difficult or complex issues were present in

the case (Tr. p. 15). We do not therefore find anything in the record to

indicate prejudgment on the part of the immigration judge.

We also do not agree that the respondent was denied a fair hearing

because the immigration judge denied the request for a continuance. In

the first instance, the assertion entirely ignores the fact that two

continuances were granted, stretching over a period of 2 weeks. It also

ignores the fact that the respondent's attorney stated that she would

be ready to proceed after the first continuance was granted. The fact

that she could provide statements from other attorneys detailing their

views as to the amount of time it would take to prepare the case is not

' We note that the Minim Legal del Pueblo was denied recognition by the Beard on

May 21. 1979, subsequent to the instant appeaL

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Interim Decision #2717

highly persuasive, given the further fact that the respondent did not

know what evidence the Service was going to present. While the

respondent's attorney may have assumed that the evidence to be

presented on the question of deportability would arise from the re-

spondent's previous arrest, at his place of employment, this assump-

tion was highly conjectural. It was therefore not unreasonable for the

immigration judge to require the proceedings to go ahead as he did to

handle the issues as they developed, and this fact did not deprive the

respondent of a fair hearing.

The respondent also contends that he was denied his right to due

process when the deportation proceeding went ahead without the

respondent's counsel being present. This event is said to have occurred

during the course of the June 9, 1978, hearing, and followed the

voluntary departure of the respondent's attorney from the hearing

room after she had objected to the immigration judge's denial of the

fourth request for a continuance.

While in another context this argument possibly could have a valid

basis, we have concluded that this issue need not be addressed in this

particular instance. There is sufficient basis in the record to establish

the respondent's deportability through testimony freely given by the

respondent before the departure of the attorney representing him The

transcript indicates that the respondent admitted that he was not a

United States citizen (Tr. p. 24). This admission occurred when his

attorney was present. There is no indication that it was coerced. Such

an admission, in and of itself, is sufficient basis on which to ground a

finding of deportability. His admission established his alienage. Once

this fact was established, section 291 of the Immigration and National-

ity Act, 8 U.S.C. 1361, requires that the respondent justify his presence

in the United States, or be presumed to be in the United States in

violation of law. The burden of proof is on the alien, and he cannot

avoid this burden by resting upon his Fifth Amendment rights. Matter

of Gonzalez, 16 I&N Dec. 44 (BIA 1976); De Lucia v. Flagg, 297 F.2d 58

(7 Cir. 1952), cert. denied, 369 U.S. 837 (1962). The respondent has

offered no proof to negate this presumption. We are therefore satisfied

that the respondent is deportable, and that this deportability was

established by clear, convincing, and unequivocal evidence.

We have come to this conclusion without relying upon the testimony

of the respondent which followed the departure of his attorney. We do,

however, believe that comment is necessary upon the point the re-

spondent raises in his appeal concerning the testimony delivered by

the respondent after his attempt to invoke the Fifth Amendment right

to remain silent. We consider this testimony inadmissible. The re-

spondent was charged with entry without inspection. This is a federal

criminal offense under section 275 of the Act, 8 U.S.C. 1325. The

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Interim Decision #271?

respondent could therefore refuse to answer, on Fifth Amendment

grounds, any question he reasonably believed might have a tendency to

incriminate him or furnish proof of a link in a chain of evidence.

Matter ofR—, 4 I&N Dec. 720 (BIA 1952). Such a reasonable apprehen-

sion of danger could have existed here, despite the fact that the Trial

Attorney offered a memorandum for file dated June 9, 1978, from the

District Director which indicated that the respondent would not have

criminal charges brought against him by the Service. This is not an

effective grant of immunity which would foreclose the respondent's

ability to invoke the Fifth Amendment right against self-incrimina-

tion. We have previously held that neither the Trial Attorney nor the

immigration judge is in a position to offer such immunity. This is an

action which can only be authorized by the Attorney General or

certain officials designated by him. Matter of King and Yang, 16 I&N

Dec. 502 (BIA 1978); Matter of Exantus and Pierre, 16 I&N Dec. 382

(BIA 1977); 18 U.S.C. 6001-6005. It is therefore clear that a District

Director's decision not to present a case for prosecution because,

according to his understanding, it belongs to a class which the United

States Attorney has judged not to warrant criminal prosecution, what-

ever its practical effect may be, is not equivalent to a grant of immuni-

ty. A. respondent cannot therefore be made to testify after he has

invoked his right against self-incrimination simply upon the presenta-

tion of such an assurance. The immigration judge here was incorrect in

advising the respondent otherwise.

However, as we have pointed out, proof of deportability has been

established by the respondent's admission of alienage and his failure

to sustain his burden of proof in showing the time, place, and manner

of entry into the United States. Since his admissions following the

invocation of his right against self-incrimination do not form the basis

for our finding of deportability, and the other points raised on appeal

have not been substantiated, there exists no ground on which to

sustain this appeal. It will accordingly be dismissed.

ORDER= The appeal is dismissed.

FURTHER ORDER: Pursuant to the immigration judge's order,

the respondent is permitted to depart from the United States

voluntarily within 30 days from the date of this order or any extension

beyond that time as may be granted by the District Director; and in the

event of failure so to depart, the respondent shall be deported as

provided in the immigration judge's order.

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