Interim Decision #2436

Interim Decision #2436

MATTER OF STAPLETON

In Deportation Proceedings

A-20411922

Decided by Board September 30, 1975

(1) In the absence of exceptional circumstances, a challenge in deportation proceedings to

the voluntariness of an admission or confession will not be entertained when first made on

appeal.

(2) Where a Service investigator testified at the deportation hearing that respondent,

during an interview, admitted unauthorized employment, counsel's contention, first raised

on appeal, that respondent's admission was coerced, is rejected, since there is nothing in

the record which suggests that the admission was in any way the product of coercion;

counsel for respondent did not object to the testimony of the investigator at the time of the

hearing, and no evidence in support of the claim of coercion has been submitted on appeal.

(3) Counsel's contention that hearsay evidence was improperly considered by the immigration judge in rendering his decision, is rejected where the record indicates that the

heamay testimony was first elicited from a Service investigator upon cross-examination

by counsel, and counsel yoked no objection to its introduction et that time In any event.

hearsay evidence is admissible in deportation proceedings.

CHARGE:

Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)]—Failed to comply with

conditions of nonimmigrnat status.

ON BEHALF OF RESPONDENT: Sharon L. Nolan, Esquire

#4. Nye Cade

St. Thomas, Virgin Islands 00801

In a decision dated March 12, 1975, the 'immigration judge found the

respondent deportable, but granted the respondent's application for

voluntary departure. The respondent has appealed from the finding of

deportability_ The appeal will be dismissed.

The respondent is a native of St. Kitts and a citizen of the United

Kingdom who entered the United States in November of 1973 as a

nonimmigrant temporary worker. The Service contends that he is deportable under section 241(a)(9) of the Immigration and Nationality Act

as an alien who has failed to comply with the conditions of his nonimmigrant status by accepting unauthorized employment.

At the hearing, the respondent denied the factual allegation in the

order to show cause' relating to the alleged unauthorized employment.

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Interim Decision #2486

The Service thereupon called one of its criminal investigators as a

witness. The Service investigator testified that he had interviewed the

respondent at which time the respondent admitted the alleged unauthorized employment.

The respondent does not deny that he made such an admission to the

Service investigator, nor has he produced any evidence challenging the

truth of the statements made in that admission. On appeal, however,

counsel for the respondent alleges that the respondent's admission was

coerced, and evidently argues that it should have been excluded from

consideration by the immigration judge.

We reject counsel's contention. There is nothing in the reocrd which

suggests tha; the respondent's admission was in any way the product of

coercion. Counsel for the respondent did not object to the testimony of

the Service investigator at the time of the hearing, and no evidence in

support of the coercion claim has been submitted on appeal. In the

absence of exceptional circumstances, a challenge to the voluntariness of

an admission or confession will not be entertained when first made on

appeal. Cf. United States v. Irby, 480 F.2d 1101 (C.A. 8, 1973); U.S. ex

rel. Lewis v. Pate, 445 F.2d 506 (C.A. 7, 1971); La Brasca v. Misterly,

423 F.2d 708 (C.A. 9, 1970), cert. denied, 400 U.S. 838 (1970); Garrison

v. Patterson. 405 F.2d 696 (C.A. 10, 1969), cert. denied, 404 U.S. 880

(1971); United States v. Frazier, 385 F.2d 901 (C.A. 6, 1967); Evans v.

United States, 377 F.2d 535 (C.A. 5, 1967); Williams v. Anderson, 862

F.2d 1011 (C.A. 3, 1966), cert. denied, 385 U.S. 988 (1966).

Counsel presents several other due process challenges to the hearing

below, which are equally without merit. The transcript of the hearing

may be incomplete because of recording problems; counsel, however,

has failed to demonstrate any resulting prejudice to the respondent, and

we are satisfied that none exists. The record also fails to support

counsel's allegation that the immigration judge was biased against the

respondent. Finally, we reject counsel's contention that hearsay evidence was improperly employed by the immigration judge in rendering

his decision. The record indicates that the hearsay testimony was first

elicited from the Service investigator upon cross-examination by counsel for the respondent. Counsel voiced no objection to its introduction at

that time, and in any event, hearsay is admissible in deportation proceedings. See U.S. ex rel. Vajtauer v. Commissioner of Immigration,

273 U.S. 103 (1927); U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149

(1923); U.S. ex rel. Impastato v. O'Rourke, 211 F.2d 609 (C.A. 8, 1954),

cert. denied, 348 U.S. 827 (1954); de Hernandez v. INS, 498 F.2d 919

(C.A. 9, 1974); Solis-Davila v. INS, 456 F.2d 424 (C.A. 5, 1972); Matter

of Ponco, 15 I. & N. Dec. 120 (BIA 1974).

The decision of the immigration judge was correct. Deportability has

been established by clear, convincing and unequivocal evidence.

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Interim Decision #2436

ORDER: The appeal is dismissed.

Further order: Pursuant to the immigration judge's order, the re-

spondent is permitted to depart from the United States voluntarily

within 31 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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