Interim Decision #2440

Interim Decision #2440

MATTER OF CHEN

In Deportation Proceedings

A-20747054

A-19870278

Decided by Board October 20, 1975

(1) Respondent's Arrival-Departure Record, Form 1-94, turned over to a Service investigator during a preliminary interrogation of respondent outside her home, was not

tainted by the absence of a Miranda-type warning and is admissible in evidence in

deportation proceedings since Miranda is not applicable to civil deportation proceedings

and, moreover, at the time of the interrogation respondent was neither in custody nor

under any compulsion to answer questions. Further, since Form 1-94 is essentially

regulatory a•id noncriminal in nature, it would be admissible in evidence even if

respondent had been in a custodial setting and Miranda were applicable to civil deportation proceedings.

(2) The interrogation of respondent, without prior notice to respondent's counsel, was not

a violation of 5 U.S.C. 500(f), nor of Disciplinary Rule 7-101(A)(1) of the American Bar

Association's Code of Professional Responsibility.

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}.—Nonimmigrant visitor/

student (spouse of student as to female)—remained longer.

ON BEHALF 0 F. RESPONDENTS:

Stanley R. Lapon, Esquire

ON BEHALF OF SERVICE:

678 Massachusetts Avenue

Appellate Trial Attorney

John Midanek

Cambridge, Massachusetts 02139

In a decision dated October 25, 1974, the immigration judge found the

respondents deportable, but granted them the privilege of voluntary

departure. The respondents, who challenge the admissibility of certain

evidence used against them, have appealed from that decision. They

have also submitted a motion to remand the record in order to give them

the opporturity to apply for adjustment of status under section 245 of

the Immigration and Nationality Act. The appeal will be dismissed, and

the motion will be denied.

The respondents, husband and wife, are natives and citizens of China.

The evidence of record is clear, convincing, and unequivocal that the

respondents are aliens who were admitted to the United States as

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Interim Decision #2440

nonimmigrants, and that they have remained beyond the authorized

length of their stays.

The respondents nevertheless contest their deportability. They allege

that the documentary evidence used to establish deportability either

was obtained illegally or was the fruit of evidence obtained illegally. The

respondents therefore contend that this documentary evidence should

have been excluded from consideration by the immigration judge, and

accordingly that the evidence properly introduced does not establish

deportability.

The challenged evidence was given to the Service by the female

respondent during an inteview in August of 1974. Of this evidence, only

Exhibit 10, the Arrival-Departure Record (Form 1-94) relating to the

female respondent was introduced during the hearing. The documentary evidence used to establish the male respondent's deportability was

already in the Service's possession at the time of the interview with the

male respondent's wife, and the Service was already aware of the male

respondent's identity, residence, and alien file number. The Service

therefore did not require any of the information obtained from the

female respondent in order to produce the evidence of the male respondent's deportability whirh was introduced at the hearing.

The Service, however, did use Exhibit 10, the Form 1-94, to establish

the female respondent's deportability. Although the female respondent's affidavit indicates that the Service obtained only the passports of

the respondents during the August 1974 questioning, counsel contends

that the Form 1-94 was also then given to the Service.

The female respondent's affidavit indicates that she was briefly questioned outside her home by a Service investigator, and that her children

were present during the questioning. At the request of the investigator,

the female respondent went inside her home to get some relevant

documents, presumably including the Form 1-94, and then delivered

these documents to the investigator. The investigator retained the

documents and departed. It is not alleged that the investigator ever

entered the respondent's home.

Counsel for the respondents initially alleges that -the questioning of

the female respondent was done in violation of the principles established,

in Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda v. Arizona,

384 U.S. 436 (1966). Counsel specifically argues that there is a right to

counsel during the preliminary stages of an administrative immigration

investigation, and that the Service was required to give the Miranda

warnings to the female respondent before questioning her.

As counsel recognizes, however, the courts have not applied Miranda

and Escobedo to civil deportation proceedings. See Chavez-Rays v.

INS, 519 F.2d 397 (C.A. 7, 1975); Jolley v. INS, 441 F.2d 1245 (C.A. 5,

1971), cert. denied, 404 U.S. 946 (1971); Lavoie v. INS, 418 F.2d 732

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Interim Decision #2440

(C.A. 9, 1969), cert. denied, 400 U.S. 854 (1970); Nason v. INS, 370

F.2d 865 (C.A. 2, 1967). Of more importance in this case is the simple

fact that the female respondent was not interviewed while she was

either in custody or under any other compulsion to answer questions.

The female respondent was free to terminate the interview at any time,

and she even returned to the interior of her home during the course of

the questioning. The Service did not violate any of the female respondent's constitutional rights in obtaining the document which counsel

seeks to suppress.

We also note that Exhibit 10, the Arrival -Departure Record (Form

1-94), is a prescribed alien registration form. 8 CFR 264.1(a). Section

264(e) of the Act requires that [e]very alien, eighteen years of age and

over, shall at all times carry with him and have in his personal possession any certificate of alien registration . . . issued to him. . . ." These

cards are essentially noncriminal in nature, United States v. Sacco, 428

F.2d 264 (C.A. 9, 1970), cert. denied, 400 U.S. 903 (1970), and their

production in the normal immigration inquiry is not prevented by the

Fifth Amendment privilege against self-incrimination. United States v.

Campos Serrano, 430 F.2d 173 (C.A. 7, 1970), aff'd on other grounds,

—

404 U.S. 293 (1971). Thus, the immigration officer's request to see the

Form 1-94 was proper, even if we assume arguendo that the female

respondent was in a custodial setting, and that Miranda is applicable to

civil deportation proceedings. See Matter of You, 14 I. & N. Dec. 630

(BIA 1974).

Counsel also attacks as a violation of professional ethics the Service's

use of information gathered as a result of the questioning of the female

respondent. In this regard, counsel relies on 5 U.S.C. section 500(f), 1

andoDiscplryRue7-104(A)ofthmricanBAsto'

Code of Professional Responsibility.

We find counsel's reliance on 5 U.S.C. section 500(f) to be misplaced.

Section 500(f) simply requires that any notice or other written communication directed at a represented participant before an agency be given to

the representative. This provision does not purport to limit the investigatory powers of immigration officers or to require notice to an alien's

attorney before the alien may be questioned.

Counsel contends that the Service violated Disciplinary Rule

7-104(A)(1) 2 when it interviewed the female respondent without notice

to counsel and procured Form 1 -94 from her. We reject that contention.

Counsel specifically relies on Public Law 89-332, 79 Stat. 1281. Public Law 89-332,

however, was re)ealed by the legislation which created 5 U.S.C. section 500(f). See Public

Law 90-83, 81 Seat. 195.

2 DR 7-104(A)(1) of the American Bar Association's Code of Professional Responsibility

provides:

Communicating With One of Adverse Interest.

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Interim Decision #2440

It is clear that DR 7-104(A)(1) was not violated. The Service, which

had reason to believe that the female respondent was an alien, was

authorized by section 287(a)(1) to interrogate her as to her right to be or

to remain in the United States, and to require identification. Matter of

Yau, 14 I. & N. Dec. 630 (BIA 1974).

In addition, we note that, with one exception, the courts have declined, in criminal cases, to exclude from consideration statements

taken in apparent violation of DR 7-104(A)(1). See United States v.

Crook, 502 F.2d 1378 (C.A. 3, 1974), cert. denied, 419 U.S. 1123 (1975);

Moore v. Wolf, 495 F.2d 35 (C.A. 8, 1974); United States v. Masullo,

489 F.2d 217 (C.A. 2, 1973); United States v. Springer, 460 F.2d 1344

(C.A. 7, 1972), cert. denied, 409 U.S. 873 (1972); United States v. Four

Star, 428 F.2d 1406 (C.A. 9, 1970), cert. denied, 400 U.S. 947 (1970);

Coughlan v. United States, 391 F.2d 371 (C.A. 9, 1968), cert. denied,

393 U.S. 870 (1968); Wilson v. United States, 398 F.2d 331 (C.A. 5,

1968), cert. denied, 393 U.S. 1069 (1969). See also United States v.

Cobb, 481 F.2d 196 (C.A. 3, 1973), cert. denied, 414 U.S. 980 (1973). The

Tenth Circuit, which established an exclusionary rule in United States

v. Thomas, 474 F.2d 110 (C.A. 10, 1973), cert. denied, 412 U.S. 932

(1973), has limited the scope of that prospective rule. See United States

v. Leyba, 504 F.2d 441 (C.A. 10, 1974), cert. denied, 420 U.S. 934

(1975); United States v. Thomas, 475 F.2d 115 (C.A. 10, 1973). We

therefore conclude that any evidence obtained as a result of the questioning of the female respondent was properly admitted.

The respondents finally seek a remand of the record in order to apply

for adjustment of status under section 245 of the Act. The respondents

seek adjustment of status as nonpreference immigrants, and the female

respondent claims to satisfy the labor certification requirements of

section 212(a)(14) as an "investor" within the contemplation of 8 CFR

212.8(b)(4).

The evidence presented in conjunction with the motion to remand fails

to set forth a prima fade case under 8 CFR 212.8(b)(4). The female

respondent has not shown that she meets the one-year training or

experience requirement for the "investor" exemption. She presently

appears to manage a Chinese restaurant. Her experience, however, is

not related to the management of any enterprise.

The decision of the immigration judge was correct. The appeal will be

dismissed and the motion will be denied.

(A) During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has

the prior consent of the lawyer representing ouch other party or is authorized Ira law to

do so. (Emphasis added.)

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Interim Decision #2440

ORDER: The appeal is dismissed, and the motion to remand is

denied.

Further order: Pursuant to the immigration judge's order, the respondents are 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 respondents shall be deported as provided in the

immigration fudge's order.

Irving A. Appleman, Member, Concurring:

I concur in the majority decision. However, I am concerned that our

holding that reversal is not warranted on the ground of a failure to

communicate with counsel, should not be taken out of context. The

failure to notify counsel of record occurred during a preliminary interview of the female respondent, and prior to the issuance of an order to

show cause. No abuse of due process, or gross miscarriage of justice,

has been shown. The overwhelming weight of authority is that there is

no exclusionary rule in these circumstances even in a criminal proceeding, let alone this administrative immigration proceeding.

Notwithstanding this, it would be regrettable if the Service viewed

the decision as endorsement of any general practice of interviewing

aliens, without advising known counsel of record. Apart from the ethical

consideration:5 alluded to in the majority decision, and as a purely

practical matter, it should be apparent that such conduct opens up the

possibility of challenges on the basis of abuse of due process and that

under some factual situations not too difficult to imagine, a review

tribunal may so hold (cf. Chlomos v. INS C.A. 3, 516 F. 2d 310 (1975).

484