Interim Decision #2725

Interim Decision #2725

MATTER OF SANDOVAL

In Deportation Proceedings

A-20824162

Decided by Board August 20, 1979

(1) Exclusionary rule is a "judicially created remedy designed to safeguard Fourth

United States v. CalanAmendment rights generally through its deterrent effect.

dra, 414 U.S. 338, 348 (1974).

(2) The United States Supreme Court has never applied the exclusionary rule to exclude

evidence from purely civil proceedings.

(3) The issue of whether the Fourth Amendment exclusionary rule should apply in

deportation proceedings must be resolved upon a pragmatic analysis of the purposes

underlying the rule, the efficacy of the rule as applied in deportation proceedings to

serve its remedial objectives, the societal costs incurred by the exclusion of reliable

and probative evidence from deportation proceedings, and the available alternatives

to deter unlawful conduct by immigration officers.

(4) If an immigration officer violates an individual's Fourth Amendment rights during

an investigation, the evidence resulting from the violation will be excluded from any

subsequent criminal prosecution.

(5) The application of the exlusionary rule to deportation proceedings would not offer any

significant additional disincentive to misconduct on the part of immigration officers.

(6) The application of the exclusionary rule to deportation proceedings would result in

societal costs, which could be avoided if the more direct and timely alternatives, which

presently exist, were utilized to curb misconduct by immigration officers.

(7) When the remote likelihood that the exclusion of evidence seized in violation of an

individual's Fourth Amendment rights would significantly affect the conduct of immigration officers is balanced against the societal costs that could arise from such

action and the alternatives available to compel respect for constitutional rights,

neither legal nor policy considerations dictate the exclusion of such evidence from

deportation proceedings.

(8) Even assuming that the alien's admissions as reflected on the Form 1-213 ("Record of

Deportable Alien") arose as a result of an unlawful search of her apartment, the Form

1-213 was admissible at the deportation proceeding and established her deportability

by clear, convincing and unequivocal evidence.

CHARGE:

Order Act of 1952 Sec. 241(a)(2) [8 U.S.C. 1251(a)(2))

—

Lodged -

—

Entry without inspection

Act of 1952 — See. 241(a)(2) U.S.G. 1251(a)(2)J — In the United States in

violation of law having failed to establish the time, place

and manner of entry as required under sec. 291, I&N Act 8

U.S.C. 1261)

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Interim Decision #2725

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE

Charles S. Sims, Esquire

Melvin L. Wulf, Esquire

American Civil Liberties Union

George Indelicato

Appellate Trial Attorney

Lloyd A. Sherman

22 Eclat 40th Street

Trial Attorney

New York, New York 10016

Attorneys of Record:

Leon Rosen, Esquire

60 East 42nd Street

New York, New York 10017

Rhoda K. Dryer, Esquire

17 Old Colony Drive

Larchmont, New York 10538

BY:

7Ailhollan, Chairman; Maniatis and Maguire, Board Members. Concurring Opinion,

Board Member Farb. Dissenting in Part and Concurring in Part Opinion, Board

Member Appleman

The respondent appeals from a decision of an immigration judge

dated September 30, 1975, finding her deportable as charged and ordering her deportation to Mexico_ The appeal will be dismissed. We will,

however, grant the respondent voluntary departure under section

244(e) of the Act, 8 U.S.C. 1254(e).

The respondent is a married 36-year-old native and citizen of Mexico. She entered the United States in March 1975. She and her husband

crossed the border at night and were not inspected by immigration

officers. The couple subsequently made their way to New Rochelle, New

York

On August 6, 1975, the respondent was taken into custody by immigration officers, who located her during a search of the building in

which she resided. After being, taken to a Service office and advised of

her rights, she made a statement admitting her alienage and unlawful

entry. She also supplied information resulting in the preparation of a

Form 1-213 ("Record of Deportable Alien").

On that same day, an Order to Show Cause was issued charging the

resp ondent with being deportable under section 241(a)(2) of the Act, 8

U.S.C. 1251(a)(2), as one who entered the United States without

inspection.

The deportation hearing was convened on August 22, 1975, and was

conducted in several sessions, the last of which was on September 30,

1975. During these proceedings, an additional charge was lodged,

alleging the respondent to also be deportable under section 241(a)(2) as

one who was unlawfully in this country because she failed to establish

the date, manner, and place of her entry as required under section 291

of the Act, 8 U.S.C. 1361.

By order dated September 30, 1975, the immigration judge found the

resp ondent deportable as charged based on her statement of August 6,

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Interim Decision 112725

1975, and on an admission made at the hearing that she was an alien

followed by her refusal to answer subsequent questions regarding her

entry.

Both below and on appeal, the respondent, through counsel, submits

that her statement of August 6, 1975, and the resulting Form

1-213, should have been suppressed as the "fruit of the poisonous

tree"—it being alleged that the search of her apartment (which

resulted in her detention) was in violation of the Fourth Amendment

of the United States Constitution. It is also submitted that the respondent's admission of alienage before the immigration judge

resulted from improper questioning subsequent to her invocation of

her Fifth Amendment privilege against self-incrimination and that

the admission, therefore, should not have been considered. The respondent further states that the immigration judge's conduct of the

hearing evidenced a lack of impartiality and a denial of the respondent's Fifth Amendment due process right to a fair hearing. Finally, it

is argued that the immigration judge improperly denied the respondent the privilege of voluntary departure after he refused to let her

testify for the limited purpose of supporting her application for that

relief.

As regards the evidence of deportability, we agree that the respondent's admission at the hearing concerning her alienage was elicited

from her after she was improperly denied her Fifth Amendment

privilege against self-incrimination. We will accordingly disregard the

respondent's admission in this regard.' See Tashnizi v. INS, 585 F.2d

781 (5 Cir. 1978); Valeros v. INS, 387 F.2d 921 (7 Cir. 1967); Estes v.

Potter, 183 F.2d 865 (5 Cir. 1950), cert. denied, 340 U.S. 920 (1951);

Matter of R—, 4 I&N Dec. 720 (BIA 1952). See also section 275 of the

Act, 8 U.S.C. 1325.

In view of this finding, the sole evidence of record regarding deportability is that which the respondent alleges resulted from an

unlawful search of her dwelling and which she submits should have

been excluded from the proceedings below.

' The record suggests that the immigration judge repeatedly questioned the respondent concerning her alienage and directed her to respond to his questioning because she

had not personally and expressly invoked her Fifth Amendment privilege regarding that

matter. See U.S ex ret Bilokumsky v. Tad, 263 US. 149 (1923); Laqui v. INS, 422 F.2d 807

(7 Cir. 1967); Chavez-Raya v. INS, 519 F.2d 297 (7 Cir. 1975). Considering the respond-

ent's statement that she did not "like to answer," counsel's explanation that she was in

fact invoking the Fifth Amendment privilege, and the language barrier arising from a

non-English speaking witness testifying through a translator, we are satisfied that the

privilege had been invoked as to the question of alienage and that the subsequent

directions to respondent to that question were improper. Cf. U.S. ex ret Vaj fewer v.

Commissioner of Immigration, 273 U.S. 103,113' (1927) (regarding privilege being "fairly

brought to the attention of the tribunal which must pass upon it").

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Interim Decision #2725

The facts of this case relating to the challenged search were not

clearly developed in the 68-page record. Apparently, however, the

respondent and her husband shared the third floor of a 3-story house

with 2 other men and one of the men's children (some or all of these

persons were related). The ground level apartment in the house

belonged to the building's "caretaker" and was accessible by its own

exterior door. The upper 2 stories were accessible by one outside

entrance. This outside door was always kept locked and each of the

tenants and the caretaker had a key. An inside stairway led from the

second floor to the third floor, where the respondent resided. There was

a door leading to the third floor of the house, which was kept closed, but

which had no lock. There was no testimony as to whether the exterior

of this door reflected that it led to a separate apartment.

According to the testimony of one of the inhabitants of the third

floor of the house, at 6:00 a.m. on the morning of August 6, 1975, he

received a telephone call warning him that immigration officers were

coming. Approximately 15 minutes later he saw immigration officers

outside the house. He did not hear the house bell ring or hear a knock,

but assumed the caretaker let the officers into the locked building.

Shortly thereafter, two immigration officers opened the door to the

third floor area of the house, entered partially, knocked after they had

stepped inside, and then searched the apartment? The respondent's

witness testified. that no consent was given to search. The Service

concedes that the investigators had no warrant. The immigration

judge did not require either investigator to testify at the hearing.

The respondent and her husband were subsequently taken into

custody and transported to a Service office, apparently after admitting

their unlawful status. At 2:15 p.m. that same day, after being advised

of her rights, the respondent signed an affidavit, admitting her

alienage and her illegal entry into this country. It is this statement and

the 1-213 prepared in conjunction with it that the respondent urges

must be excluded from evidence as the product of an illegal search. See

Wong Sun v. United States, 371 U.S. 471 (1963) (regarding the suppression of verbal statements). Exclusion is argued solely on Fourth

Amendment grounds, as the respondent makes no claim on appeal that

her statement was either involuntary or otherwise inadmissible.

On these facts, if we assume that evidence unlawfully seized by

immigration officers must be excluded from deportation proceedings,

we would find that the respondent had come forward with sufficient

On appeal, the respondent states, through counsel (Brief on Appeal, at page 4), that

the 2 investigators, "wielding flashlights, burst through the front door of the apartment." Neither the testimony of the respondent's witness nor her own affidavit, however,

supports this characterization of the agents' entry.

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Interim Decision #2725

proof to establish a prima facie case of illegality so as to require the

Service either to assume the burden of justifying the manner which it

obtained entry to the respondent's apartment or to establish that the

connection between the search and the resulting statement and Form

1-213 had become sufficiently attenuated to dissipate any "taint." See

Brown v. Illinois, 422 U.S. 590 (1975); Nardone v. United States, 308

U.S. 338, 341 (1939); Matter of Tang,13 I&N Dec. 691 (BIA 1971). See

also United States v. Karathanos, 531 F.2d 26, 34 35 (2 Cir. 1976), cert.

denied, 428 U.S. 910 (1976). As that burden was not placed on the

Service and as evidence justifying the search is not in evidence, we are

faced with the issue of whether the exclusionary rule should be held

applicable in deportation proceedings'

A preliminary question in this regard is whether unlawfully seized

evidence has previously been held excludable from deportation

proceedings. Two early district court decisions' ordered the exclusion

of such evidence and the Supreme Court in dicta in U.S. ex rel.

Bilokumsky v. Tod, 263 U.S. 149, 155 (1923) stated that "it could be

assumed that evidence obtained by the Department [of Labor] through

an illegal search and seizure cannot be the basis of a finding in

deportation." A. leading immigration law treatise states that:

-

it is undisputed ... that the Fourth Amendment's prohibition against unreasonable

searches and seizures applies in deportation proceedings, and that evidence obtained

as the result of an unlawful search cannot be used.'

Thus, one might assume that the issue has long been resolved.

During the initial 55 years following the Bilokuntsky decision, however, we find no Federal Court decision either holding that evidence

obtained through an unlawful search would be inadmissible in deportation proceedings or in fact excluding any such evidence_ Moreover, the Board has never specifically reached this issue. Many decisions do exist in which the merits of a challenge to a contested search

were addressed,' but over the cited period all reported cases were

By memorandum, dated October 4, 1978, the General Counsel of the Service states

that the Service position is that the exclusionary rule is inapplicable in civil deportation

proceedings

parte Jackson, 263 F. 110 (D. Mont. 1920), appeal dismissed, sub nom. Andrews v.

Jackson, 267 F. 1022 (9 Cir. 1920); United States v. Wong Quong Wong, 94 F. 832 (D. Vt.

1899).

5 Gordon and Rosenfield, Immigration Law and Procedure (Revised Edition 1977), at

5-31. No case cited in support of this principle, however, includes a holding in this regard

or resulted in any exclusion of evidence from a deportation proceeding. See Missal v.

INS, 261 F.2d 529 (D.C. Cir. 1966); United States v. Montez Hernandez, 291 F.Supp. 712

(RD. flat 1968); Roa Rodriguez v. INS, 410 F.2d 1206 (10 Cir. 1969).

-

-

See Hocrasilapa v. INS, 575 F.2d 735 (9 Cir. 1978); Cordon de Ruano v. INS, 554 F.2d

944 (9 Cir. 1977); Aguirre v. INS, 553 F.2d 501 (5 Cir. 1977); Ho Chong Tsao v. INS, 538

F.2d 667 (5 Cir. 1976), cert. denied, 430 U.S. 906 (1977); Vlissidis v. Anadell, 262 F.2d 398 (7

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Interim Decision #2725

resolved in the Government's favor, thus obviating the need to specifically reach the question now under consideration. This wealth of eases

can be read either as assuming the excludability of unlawfully seized

evidence or as declining to address that fundamental issue where not

essential to do so.1 In either case, however, during this 55-year period

neither the Board nor any Federal Court either ordered the exclusion

of any unlawfully seized evidence or reached the issue of whether such

evidence should in fact be excluded from deportation proceedings.

Remarkably, not until 1977 do we find a Circuit Court decision

specifically addressing the question. That year, the First Circuit Court

of Appeals in Wong Chung Che v. INS, 565 F.2d 166 (1 Cir. 1977), held

that the product of an unlawful search would be inadmissible in

deportation proceedings. That decision, however, was based in large

part on what was viewed as the long history of "assumed" inadmissibility rather than on a detailed analysis of the relative merits of

excluding such evidence from deportation proceedings. Compare Smith

v. Morris, 442 F.Supp. 712 (ED. Pa. 1977), appeal dismissed on other

grounds sub num. Smith v. INS, 585 F.2d 600 (8 Cir. 1978) (exclusionary

rule not applicable to deportation proceeding in which decision did not

depend upon proof of specific events, but merely on proof of status).

Accordingly, as the Board has not previously resolved this issue, as

we find only one contemporary Federal Court decision in which unlawfully seized evidence is specifically held to be excludable, and as we

find no decision in which the appropriateness of applying the rule in

deportation proceedings is analyzed hi any detail, we will address the

question as one of first impression.

The initial issue is whether relevant Supreme Court precedent

mandates the conclusion that all unlawfully obtained evidence be

excluded from civil deportation proceedings without further inquiry

into the necessity, usefulness, and effect of the exclusion of such

evidence within the context of immigration law. We find this not to be

the case.

The exclusionary rule is "a judicially created remedy designed to

safeguard Fourth Amendment rights generally through its deterrent

Cir. 1959); Matter of Gonzalez, Interim Decision 2536 (BIA 1976); Matter of Burgos, 15

I&N Dec. 278 (BIA 1975); Matter of Scavo,141&N Dec. 826 (BIA 1973); Matter of Tsang,

14 I&N Dec 294 (BIA 1973); Matter of Wong, 13 I&N Dec. 620 (1971); Matter of Tang,13

I&N Dec. 691 (BIA 1971); Matter ofAu, rim and Lam, 13 I&N Dec. 294 (BIA 1969); Matter

ofDoo, 13 I&N Dec. 30 (BIA 1968); Matter of Chen, 12 I&N Dec. 603 (BIA 1968); Matter of

D—M—, 6 I&N Dec. 726 (BIA 1955).

'This Board has not previously intended to reach the issue decided today and withdraws from any language which may be read as suggesting otherwise. See also Lee v.

INS, No. 77-2265 (3 Cir. filed Jan. 4,1979); Cuevas-Ortega v. INS, No. 77-1630 (9 Cir. filed

Jan. 2. 1979).

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Interim Decision #2725

effect. . . ." United States v. Calandra, 414 U.S. 338, 348 (1974). The

Supreme Court has found that the "need for deterrence and hence the

rationale for excluding evidence are strongest where the Government's

unlawful conduct would result in the imposition of a criminal sanction

on the victim of the search." (Emphasis supplied.) Calandra at 338.

Thus, in certain criminal proceedings, the Court has assumed the

necessity and efficacy of the "drastic measure" of excluding evidence as

a means of deterring law enforcement officials from violating Fourth

Amendment rights. See United States v. Janis, 428 U.S. 433, 459 (1976).

The Supreme Court, however, has "never ... applied [the exclusionary rule] to exclude evidence from a civil proceeding, federal or state."

United States v. Janis at 447" The Court in Janis did reference the

"seminal" lower court decisions that had applied the exclusionary rule

to civil proceedings involving "intrasovereign" Fourth Amendment

violations, but expressly did not consider that situation. Janis at 456.

In the same decision, the Court also noted without adverse comment

that in "some cases the courts have refused to create an exclusionary

rule for either intersovereign or intrasovereign violations in proceedings other than strictly criminal prosecutions."' Thus, it is not entirely

clear that the Court would extend the exclusionary rule to exclude

evidence in any civil proceeding. See Todd Shipyards Corp. v. Secretary

of Labor, 586 F.2d 683, 689 (9 Cir. 1978) (questioning applicability of

rule in OSHA proceedings). We are convinced, however, that if the rule

were to be extended to apply in a given civil proceeding, the Court

would only do so after balancing the likelihood of deterring misconduct

by- government officials against the societal costs imposed by rendering

unavailable clearly probative and reliable evidence.°

Although deportation is a drastic measure and at times "the

equivalent of banishment or exile,"" it has consistently been classified

as a civil rather than a criminal procedure 12 For this reason, every

s See Janis at 447 n. 17, regarding the exclusion of evidence from 2 proceedings which

were in "substance" and "effect" criminal (i.e., proceedings the subject of which were to

"penalize for the commission of an offense against the law." Plymouth Sedan v. Pennsylvania. 380 U.S. 693, 700 (1965)).

Janis at 456. We note in this regard that all of the numerous reported cases which

have considered the question have held the exclusionary rule inapplicable to probation

revocation proceedings. See United States v. Frederickson, 581 F.2d 711, 713 (8 Cir. 1978)

and the cases cited therein. See also U.S. ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2

Cir. 1970) (rule not applied in parole revocation proceedings).

" See Stone v. Powell, 428 U.S. 465, 488 (1976); United States v. Janis, supra at 447-460

(1976); United States v. Calandra, 414 U.S. 338, 349 (1974).

" Deloadillo v. Carmichael, 332 U.S. 388, 391 (1947).

"See Woodtry v. INS, 385 U.S. 276, 285 (1966); Harisiades v. Shaughnessy, 342 U.S. 580,

594 (1952); Ramirez v. INS, 550 F.2d 560, 563 (9 Cir. 1977); LeTourneur v. INS, 538 F.2d

1368,.1370 (9 Cir. 1976), cert. denied, 429 U.S. 1044 (1977); Nai Cheng Chen v. INS, 537 F.2d

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Interim Decision #2725

court of appeals that has considered the issue has held that the absence

of Miranda warnings does not render an otherwise voluntary statement inadmissible in a deportation case. See Navia-Duran v. INS, 568

F.2d 803, 808 (5 Cir. 1977); Trias-Hernandez v. INS, 528 F.2d 366, 368 (9

Cir. 1975); Anila-Gallegos v. INS, 525 F.2d 666, 667 (2 Cir. 1975);

Chavez-Ray a v. INS, 519 F.2d 397, 399-401 (7 Cir. 1975). Accordingly,

we find no clear mandate to extend the Fourth Amendment exclusionary rule to apply in deportation proceedings without a further inquiry

into the appropriateness of doing so. Instead, we find that this issue

must be resolved only upon a "pragmatic analysis" of the purposes

underlying the exclusionary rule, the efficacy of the rule as applied in

deportation proceedings to serve its remedial objectives, the societal

costs incurred by the exclusion of reliable and relevant evidence from

deportation proceedings, and the available alternatives to deter unlawful conduct by immigration officers.

The Supreme Court has held that the prime, if not sole, purpose of

the exclusionary rule is to detet future unlawful police conduct. United

States v. Jaais, supra at 446; United States v. Calandra, supra at347. It

is well-settled that the rule is not calculated to "redress the injury into

the privacy of the search victim"' and there would appear little

support for the view that application of the rule is essential for the

purposes of "judicial integrity." Further, the rule's ultimate purpose

is not to punish the Government for the wrongful acts of its agents.

Thus, at a minimum, it would appear essential to a decision to apply

the rule in deportation proceedings that we find that such application

would have some meaningful effect on the future conduct or misconduct of immigration officers."

We initially note in this regard that immigration officers are

charged with investigating both civil and criminal violations of the

566 (1 an 1976); Avila Gallegos v. INS, 441 F-2d 1245 (5 Cir. 1971), cert. denied, 404 U.S.

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946 (1971). See also Abel v. United States, 362 U.S. 217, 237 (1960):

According to the uniform decisions of this Court, deportation proceedings are not

subject to the constitutional safeguards for criminal prosecutions. Searches for

evidence of crime present situations demanding the greatest, not the least, restraint

upon the Government's intrusion into privacy; although its protection is not limited to

them, it was at these searches which the Fourth Amendment was primarily directed.

"Stone v. Powell, supra at 488

" United States v. Calandra, supra at 347.

" Stone v. Powell, supra at 499 (1976) (Burger, CI, concurring); United States v. Janis,

supra at 457.

' We limit our inquiry here to the question relating to the exclusion of evidence

unlawfully seized by immigration officers. However, we find significant support in Janis

for the conclusion that evidence unlawfully seized by federal and state police officers in

pursuance of criminal investigations should not be excluded from deportation hearings

(collateral, civil proceedings).

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Interim Decision #2725

immigration laws. See, for example, sections 242(d) and (e), 252(c),

264(e), 266, and 274-278 of the Act, 8 U.S.C. 1252(d) and (e), 1282(c),

1304(e), 1306, 1324-1328 (criminal violations under Service jurisdiction). The criminal and civil investigations are routinely performed

concurrently because an officer who suspects an individual of being

unlawfully present in the United States will not ordinarily know in

advance whether or not the individual may also have violated a

criminal provision of the immigration laws. If an immigration officer

violates an alien's rights under the Fourth. Amendment during such an

investigation, he knows that evidence resulting from that violation

will be excluded from any subsequent criminal prosecution. See United

States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v.

Briononi-Ponce, 422 U.S. 873 (1975); United States v. Karathanos,

supra. Thus, if one starts with the premise that the exclusionary rule is

an effective tool of deterrence, the question now before us is whether

any additional significant deterrent effect would be served by ruling

that such evidence should also be excluded from the related civil

deportation proceeding.

At first appearance, it might seem that the deterrent effect on

immigration officers of excluding unlawfully seized evidence from

deportation proceedings could still be equated to the presumed effect

on law enforcement officials of excluding such evidence from criminal

proceedings. In both instances the evidence would be made unavailable

in the proceedings that fall within the officers' "zone of primary

interest."" The fact that deportation proceedings are civil in nature,

however, creates further distinctions which make this comparison

inapposite.

First, although there is no convincing empirical evidence that the

exclusionary rule has operated to deter violations of Fourth Amendment rights by law enforcement officials, the Supreme Court has been

willing to apply that "drastic measure" in various criminal settings

based on its "own assumptions of human nature arid the interrelationship of the various components of the law enforcement system."

United States v. Janis, supra at 459. This willingness arises in part

because the rationale for excluding evidence is strongest where

criminal sanctions can result and because it was searches for evidence

of crime to which the Fourth Amendment was primarily directed. In

view of the absence of these factors in the civil setting, we are not

convinced that the Court would "assume" the efficacy of the exclusionary rule as a meaningful tool of deterrence if applied in deportation

proceedings.

Secondly, the civil nature of deportation proceedings creates a clear

"Janis at 458.

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impact on the rule's potential effectiveness to deter future misconduct

by immigration officers, even if it were extended so as to require the

exclusion of unlawfully seized evidence in those proceedings. A significant number of deportation cases involve solely the question of a

respondent's present status, as distinguished from criminal proceedings where the issues generally relate to a defendant's past actions. See

Smith v. Morris, supra. In fact, in many deportation cases the sole

matters necessary for the Government to establish are the respondent's identity and alienage—at which point the burden shifts to the

respondent to prove the time, place and manner of entry. See section

291 of the Act. It is also true, in view of the civil nature of these

proceedings, that the "body" or identity of an alien (as distinguished

from alienage) is not suppressible as the "fruit of the poisonous tree"

even if it is conceded that an illegal arrest, search, or interrogation

occurred. See Hoons-ilapa v. INS, supra at 738; Wong Chung Chs v. INS,

supra at 168; Katris v. INS, 562 F.2d 866, 869 (2 Cir. 1977); AvilaGallegos v. INS, supra at 667; Guzman-Flores v. INS, 496 F.2d 1245,

1247 48 (7 Cir. 1974); Huerta Cabrera v. INS, 466 F.2d 759, 761 n. 5 (7

Cir. 1972); La Franca v. INS, 413 F.2d 686, 689 (2 Cir. 1969). Once an

alien's identity is learned, the Service can entirely avoid triggering the

exclusionary rule in all eases where documents lawfully in the Service's possession evidence unlawful presence.

Accordingly, even if one presumes the existence of an immigration

officer who would intentionally elect either to violate or not to violate

an individual's Fourth Amendment rights based on whether his

wrongful actions could result in evidence available for use in deportation proceedings, it is not clear that the application of the exclusionary

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rule would significantly impact on that officer's judgment because

what is often the most damaging evidence resulting from an illegal

search (the alien's "body") cannot be suppressed." Thus, even if the

exclusionary rule were applied in deportation proceedings, a presumed

unscrupulous immigration officer would not be assured prior to his

unlawful act that he would not be "rewarded" with damaging evidence

which could result in an alien's deportation." This Board is, therefore,

not convinced that the adoption of the exclusionary rule in deportation

proceedings would offer any significant additional deterrent to misconduct to an immigration officer who would otherwise intentionally

"By this analysis, we of course do not sanction any hypothetical misconduct. It is

solely intended to illustrate the limitations of excluding evidence from deportation

proceedings as a meaningful deterrent to immigration officers.

"'Under these circumstances, only where the officer knew prior to the search that the

individual was one for whom the Service had no records (e.g., an alien who entered

without inspection) or that the Service records alone could not result in a finding of

deportability, could now even assume that the incentive for misconduct could be affected.

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choose to violate an individual's Fourth Amendment rights in hopes of

assisting in the alien's deportation."

Against this somewhat questionable role as a tool of deterrence, one

must consider the "societal costs" imposed by application of the rule. It

might be presumed that these "costs" would be minimal in view of the

fact that since 1899 we can find only two reported cases in which

unlawfully seized evidence was in fact excluded from deportation

proceedings and only one other case in which the applicability of rule

was specifically addressed. Under such circumstances (even if one

assumes that the Service may have elected not to issue Orders to Show

Cause in some cases for fear that critical evidence might be found

inadmissible), the rule would not appear to have the potential to

significantly impact on this country's immigration laws and policies.

There are, however, "costs" which arise even when evidence is not

ultimately excluded. Absent the applicability of the exclusionary rule,

questions relating to deportability routinely involve simple factual

allegations and matters of proof.2' When Fourth Amendment issues

are raised at deportation hearings, the result is a diversion of attention

from the main issues which those proceedings were created to resolve,

both in terms of the expertise of the administrative decision makers

and of the structure of the forum to accommodate inquiries into search

and seizure questions. The result frequently seems to be a long, confused record in which the issues are not clearly defined and in which

there is voluminous testimony l but the underlying facts not sufficiently

developed. The ensuing delays and inordinant amount of time spent on

such cases at all levels has an adverse impact on the effective administration of the immigration laws, which to date (in view of the virtual

absence of eases in which evidence has been ultimately excluded) has

in no way been counterbalanced by any apparent productive result.

This burden on the "system" is certainly not a basis in itself to

conclude that such issues are not appropriate in deportation proceedings, but we think this effect is a relevant consideration when balancing competing interests and one which cannot be characterized as

"trivial." See Pranks v. Delaware, 98 S.Ct. 2674, 2682 2683 (1978). This

is particularly true in a proceeding where delay may be the only

"defense" available and where problems already exist with the use of

dilatory tactics. See, e.g., Vasquez-Contreras v. INS, 582 F.2d 334 (5 Cir.

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"See, Austin T. Fragoman, Jr., Procedural Aspects of Illegal Aspects of Illegal Search

and Seizure in Deportation Cases, San Diego Law Review, Vol. 14, No. 1, Dec. 1976, at pp.

181-182, regarding impact of exclusionary rule as a deterrent to misconduct by immigration officer under present statutory and rase law

"Presently, in the majority of cases, deportability is conceded and the bulk of the

hearing concerns applications for various categories of mandatory or discretionary

relief from deportation.

.

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1978); Der-Rung Choir v. INS, 578 F.2d 464 (2 Cir. 1978); BallenillaGonzalez v. INS, 546 F.2d 515 (2 Cir. 1976), cert. denied, 434 U.S. 819

(1976); Medina v. INS, 473 F.2d 728 (3 Cir. 1973), cert. denied, 412 U.S.

928 (1973).

Other "societal costs" would arise in any case where the rule operated to preclude the deportation of an alien whose presence in this

country was not lawful. We do not suggest that the "cost" of an alien's

continued unlawful presence is in any way comparable to the "cost" of

allowing a criminal to go free; the differences are of kind, rather than

degree. A criminal may be given immunity for past conduct, but is

never licensed to commit future crimes. However, where an alien

whose status is not lawful is saved from deportation through the

operation of the exclusionary rule, the result would be a sanctioning of

a continuing violation of this country's immigration laws.

As a final consideration in this regard, we think it possible that the

availability of the exclusionary rule in deportation proceedings would

make it less likely that alien§ and their counsel would pursue more

direct and timely approaches to curbing violations of Pourth Amendment rights by immigration officers. It is not unreasonable to assume

that an alien will be primarily concerned with his or her own status,

and only secondarily concerned with the future actions of immigration

officers. Thus, even though the suppression of evidence may be the

most cumbersome and unproven tool of deterrence, it is the approach

most likely to be pursued by an alien whose Fourth Amendment rights

have been violated because of its "windfall" effect.

This last consideration is relevant only if other alternatives exist

with respect to curbing such misconduct by immigration officers, but

we find that alternatives are available. The most direct initial action

that one can take when there is misconduct by an immigration officer is

a formal complaint to his or her superior; in most instances relating to

unlawful searches, the District Director. See 8 C.F.R. 100.2. See also

Operations Instruction 287.19, March 15, 1978 ("The Service Professional Integrity Program"). There is no evidence suggesting that the

Service is not responsive to complaints regarding employee misconduct. Such an approach provides no "windfall" to the alien, and offers

significant advantages over the exclusionary rule in preventing subsequent misconduct. First, the action is direct and timely. It can follow

immediately after the alleged misconduct and the complaint can be

directed to the official responsible for supervising the day-to-day actions of the officer or officers in question. This approach does not rely

on any presumption (which we think unfounded) that the officer will

tailor his or her conduct based on an administrative or judicial decision that may come months or even years after the contested action,

particularly when it is in no way clear that officers are even aware of

81

Interim Decision #2725

the ultimate disposition of the cases in which there are involved.

Moreover, this, approach has the benefit of forcing supervisory personnel to confront the issues and to clarify policies relating to searches

and seizures. Where misconduct is determined to have occurred, the

impact on the responsible officer can be significant, direct, and incapable of being ignored (e.g., a fine, suspension, or dismissal). Equally

as important, where improper actions are taken by an officer in good

faith, education and training can be substituted for punishment.

We note in this regard that we are not dealing with a diverse group

of law enforcement agencies responsible to various federal or state

authorities. We are concerned with one federal agency and its officers,

who are responsible to one agency Commissioner, and in turn ultimately responsible to the Attorney General of the United States. We

are not satisfied—and have not been shown—that misconduct by Service officers relating to violations of individuals' Fourth Amendment

rights cannot be adequately addressed within this forum.

Secondly, where the violations stem from unlawful Service policies

rather than from individual misconduct, such policies regarding

searches can be challenged in the Federal Courts by injunctive or

mandamus actions—actions specifically designed to deter future misdeeds, rather than to punish for past conduct. See Lowy. INS, 583 F.2d

1110 (9 Cir. 1978); LaDuke v. Castillo, 455 F.Supp. 209 (E.D. Wash.

1978); Marques v. Kiley, 436 F.Supp. 100 (S.D.N.Y. 1977); Illinois

Migrant Council v. Pilliod, 540 F2d 1062 (7 Cir. 1976), modified en bane,

548 F.2d 715 (7 Cir. 1977). These actions also directly impact on the

perceived problem, rather than relying on any hope that an officer's

conduct will be affected by the result of a subsequent proceeding in

which he is neither a party nor (if we presume malevolence) much

concerned"'

Finally, civil or criminal actions against the individual officer may

be available. See Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388

(1971). See also U.S. ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1164

(2 Cir. 1970); 18 U.S.C. 2234-2236.

We recognize the fundamental right of all persons in this country to

privacy free from unreasonable state intrusion. We are sensitive to the

fact that many persons journey to this country—at times at great

personal sacrifice—in order to live in a society in which constitutional

guarantees are meaningfully enforced. We simply are not convinced,

however, that the exclusion of unlawfully seized evidence from deportation proceedings would in fact affect the conduct of any immigration officer who would otherwise malevolently violate individual

rights.

" United States v. Janis, 428 U.S. at 448 n. 20.

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Interim Decision #2725

Accordingly, when we balance what we consider to be the remote

likelihood that the exclusion of unlawfully seized evidence from deportation proceedings would significantly affect the conduct of immigration officers with the societal costs that could result from such

action and the alternatives available to compel respect for constitutional rights, we are not satisfied that either legal or policy considerations dictate the exclusion of unlawfully seized evidence from these

proceedings." In view of the, foregoing, we find that the respondent's

statement of August 6,1975, and the Form 1-213 were admissible in the

proceedings below and that deportability under section 241(a)(2) of the

Act was established by clear, convincing and unequivocal evidence.

Regarding the claim that the immigration judge was biased, disrespectful, and incompetent, we find that the respondent's contentions

are not supported in the record_ We do not agree that alleged errors in

rulings and that which counsel perceives as "silly procedural technicalities" indicate either prejudice or incompetence requiring new

proceedings before a different immigration judge. The record is at

times confused and also suggestive of a strained relationship between

the immigration judge and the respondent's three counsel (particularly on the part of counsel), but we find no manifestation of any "bias" on

the part of the immigration judge as regards the respondent nor any

impermissible restraint on counsel's representation of their client. We

note that the immigration judge made various rulings in the respondent's favor, in fact elicited from the Service the fact that no warrant

had been issued for the search in question, granted frequent recesses

to the respondent to confer with her attorneys, accommodated every

rescheduling request made by the respondent's counsel, and ultimately

adjourned the proceedings and withheld his decision pending submission by the respondent's counsel of a brief in support of their motion.

Our review of the record does not reveal "flagrantly injudicious con-

duct" (as submitted by counsel) resulting in a denial to the respondent

of a fundamentally fair hearing."

22

Our decision in this regard, of course, does not affect the inadmissibility of evidence

obtained in violation of a respondent's privilege against self incrimination or of statements or admissions that are involuntary or coerced. See Tashnizi v. INS, supra; Valeros

-

v. INS, supra; Navia,Duran v. INS, 568 F.2d 803 (1 Cir. 1977); Bong Youn Choy v. Barber,

279 F.2d 642 (9 Cir_ 1960).

" It is submitted that the immigration judge was abusive and "shouted" during the

proceedings; however, in response to a complaint in this regard he advised counsel that

he was not raising his voice, but that it was his normal voice level and he wanted counsel

to keep his "voice up." The record in fact reflects that on numerous occasions the

immigration judge found it necessary to instruct the parties, including the Service's

witness, to speak louder. It is also submitted on appeal that the immigration judge

engaged in an improper ex parts conference with the trial attorney, a Service witness

and the Chief Special Inquiry Officer. The record indicates, however, that at the

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Interim Decision #2725

Finally, the respondent challenges the denial of voluntary departure. We are satisfied that she should, as a matter of discretion, be

granted that privilege. The parties at the hearing appear to have been

unclear as to the meaning of the regulatory language in 8 C.F.R.

242.17(d). In Matter of ulos, 15 I&N Dec. 645 (BIA 1976), decided after

the immigration judge's decision appealed from herein, we clarified

that the testimony given in support of an application for voluntary

departure may not be relied upon to base a finding of deportability.

Considering that there appears little doubt as to the respondent's good

moral character and in view of the understandable uncertainty at the

hearing as to the advisability of answering all questions, we will grant

to the respondent the privilege of voluntary departure.

The appeal will accordingly be sustained as to the denial of voluntary departure, and dismissed in all other regards.

ORDERS The appeal is dismissed, except as regards the denial of

voluntary departure.

FURTHER ORDERS The outstanding order of deportation is

withdrawn, and in lieu of an order of deportation the respondent is

allowed to depart voluntarily, without expense to the Government,

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

time as may be granted by the District Director and under such

conditions as he may direct. In the event of the respondent's failure so

to depart, the order of deportation will be reinstated.

CONCURRING OPINION: Ralph Farb, Board Member

The exclusionary rule is not applicable to deportation hearings, nor

should it be.

Decision writers and commentators who assume its applicability

have failed to discuss it deeply. It is as if it was casually assumed that,

because the Fifth Amendment's self-incrimination clause applies and

is operative to bar the use of involuntary statements, the same result

must follow from violation of the search and seizure clause of the

nearby Fourth Amendment. That the two are not analogous is easily

demonstrated.

The very words of the Fifth Amendment, prohibiting the use of

enforced self-incriminating statements in criminal trials, underlie the

extension of the bar to civil and administrative proceedings where the

September 9, 1975, hearing the respondent's counsel stated only that it "appeared" to her

that a conversation had occurred (the substance of which she did not know) during the

course of the previous hearing when she and the respondent were conferring outside the

hearing room. The immigration judge indicated that no conversation regarding the

proceedings had occurred and, on this record, we find neither material error nor a need to

pursue the matter.

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Interim Decision #2725

Government is the adverse party. Moreover, such statements are suspect as to reliability and probative value.

By contrast, the Fourth Amendment in itself says nothing about use

of illegally seized evidence. The exclusionary rule is not a personal

constitutional right of an aggrieved party, it has never been interpreted as applying to all types of proceedings and it is not intended to

give redress to the aggrieved party.

The deportation hearing process has never been linked to formal

rules of evidence. Evidence which would be inadmissible in a courtroom may be received; if it is probative it may be relied upon to

establish a fact. This is consonant with the overall approach to this

type of administrative decision making. Neither illegality in the arrest

nor irregularity in the contents of the initiating document necessarily

stands in the way of a deportability.

For Fiscal Year 1977, the Immigration and Naturalization Service

reported that it had located 1,042,000 deportable aliens. Of these,

939,000, or 90%, were listed as having entered without inspection. That

means that for the vast majority there was no reason to expect that the

Immigration and Naturalization Service records contained prior

evidence of their identity as aliens. I am not condoning or encouraging

violation of Fourth Amendment rights in the immigration investigator's search for solid proof of identity. If it were done deliberately,

discharge from Government service would be appropriate. I simply

don't see how we can reasonably bar the use of illegally obtained

convincing proof that a person is an alien with no right of presence,

when that may be all that will ever be available to identify him. It

would be inconsistent with the manifest intention of Congress that the

Immigration and Naturalization Service know the location of every

alien in the country.

The Board's decision attempts to draw a distinction between immigration investigators and other types of law enforcement officers as

to the hypothetical deterrent effect which might result from the imposition of the exclusionary rule on deportation hearings. I will have

none of it. There is no reliable evidence of the effect of the exclusionary

rule on conduct of police officers generally, and it is merely fanciful to

make comparisons based on the supposed deliberate conduct of knowledgeable officers. Most violations of civil rights result either from

ignorance or from excess of zeal. The calculating, unscrupulous officer

belongs to fiction, not reality. Despite my reservation in this one

regard I agree with the decision.

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Interim Decision #2725

DISSENTING IN PART AND CONCURRING IN PART: Irving A. Applemen,

Board Member

I concur only in the result reached in this case by the majority decision, not in its rationale. My divergence with my colleagues is threefold: (1) Even assuming an unlawful arrest, the Service evidence in this

case is admissible and alienage and deportability have been established

by clear and convincing evidence, without any necessity for reaching

the issue of applicability of the exclusionary rule; (2) Assuming any

necessity for examining the arrest, the evidence respecting the claimed

illegality is unsatisfactory in crucial areas, and a reopening of the

proceedings is required before the applicability of the Fourth Amendment can be discussed, to determine if an issue actually exists; (3)

Assuming arguendo the necessity for, and propriety of, reaching the

issue, the exclusionary rule is applicable in deportation proceedings.

I

The Government's case rests on a Form 1 - 213 (Record of Deportable

Alien), an Affidavit signed by the alien, a Form 1-214 (Advice of

Rights), and the testimony of Investigator DiPlacidi.

DiPlacidi was responsible for the execution of these documents at

the Immigration and Naturalization Service office. He was not the

arresting officer. His initial action was to fully advise the respondent

of her rights in her own language. The Affidavit (Exhibit 2) was taken

from her in Spanish, written down in English and read back to her in

Spanish. The Form 1-213 (Exhibit 3) was filled out from information

partly known to the investigator and partly furnished by the respondent. The Form 1-214 is part of Exhibit 2 and notes the time of execution

as 2:15 p.m., on the day of the arrest and the place as 20 West

Broadway, New York City.' The Form 1-213 and the affidavit state that

the respondent is a native and national of Mexico who entered the

United States without inspection in March 1975.

The 1-213 shows that the alien was apprehended at her residence on

August 6, 1975 at 6:30 a.m. during a "field investigation." The Affidavit

recites that it was taken in Spanish by Investigator DiPlacidi, that he

identified himself as an, officer of the United States Immigration and

Naturalization Service and informed her that he desired to take her

sworn statement regarding her illegal entry into the United States. It

contains warnings as to her right to remain silent; that anything she

said might be used against her in a court or in an immigration or

administrative proceeding; that she had the right to talk to a lawyer

' This is the location of the New York office of the Immigration and Natualization

Service.

86

Interim Decision #2725

for advice during questioning; that if she could not afford a lawyer one

would, be appointed for her; that she had the right to stop answering

questions at any time.

According to DiPlacidi, these warnings were given to her in Spanish

and she fully understood them. Included in the preliminary warnings,

is the statement "I am willing to make a statement without anyone

else being present." Her signature appears on both pages. The warnings and statement of rights on the attached 1 214 are also in the

Spanish language, and are equally complete. The form concludes in

substance, "I understand my rights, I am ready to make a declaration

-

and answer questions. For now I do not desire a lawyer. I understand

and know what I am doing. I have not been made any promises nor

have I been threatened, nor has any pressure or force been used

against me." It too bears her signature.

DiPlacidi testified that all information reflected in Exhibits 2 and 3

was freely furnished by the alien. No allegations have been made by

the respondent, nor has there been any offer of proof that the information was furnished on other than a completely voluntary basis, without

any coercion, duress, or intimidation. There appears to have been

complete compliance with the Service regulation governing arrest

procedures.

Nothing in the evidence offered by the respondent in support of her

motion to suppress, indicates that the arrest, even assuming arguendo

that it was illegal, bore a relationship to the information furnished

hours later at the Service office. The allegations in the respondent's

affidavit in support of her motion to suppress relate only to the circumstances surrounding the arrest itself. Her supporting witness testified

only as to what took place at the time of the arrest. We are being asked,

with no evidentiary support whatsoever, to assume that a "taint"

carried over automatically to these documents, notwithstanding their

facial compliance with evidentiary due process requirements (TriasHernandez v. INS, 528 F.2d 366 (9 Cir. 1975)), the fact that they were

executed at a time and place substantially removed from the scene of

the arrest, and the buttressing testimony of the Service officer that the

information was given freely and voluntarily.

It is appreciated that the bar of the exclusionary rule extends to

verbal evidence as much as to other physical evidence. Under the

holdings in Wong Sun v. United States, 371 U.S. 471 (1963), and United

States v. Karathanos, 531 F.2d 26, 34-35 (2 Cir. 1976), the taint of an

,

original illegal arrest can carry over to such evidence, and render it

inadmissible. Nevertheless, it does not do so in all cases, and in all

circumstances. The rule recognizes the possibility of attenuation.

Clearly, verbal statements made at the time of an illegal arrest would

be inadmissible under Wong Sun. At the same time a voluntary confes87

Interim Decision #2725

sion made several days after the arrest was held admissible in Wong

Sun, because the connection between arrest and statement had been

dissipated. This case falls somewhere in between. United States v.

Karathanos, supra, has an additional element of a government

promise to alien witnesses, of voluntary departure without prosecution, which helped to carry the original taint over to their testimony.

NO such element is present in this case, and Karathanos is not

determinative on the facts here.

Brown v. Illinois, 422 U.S. 590 (1975), places a burden on the Government to show that a later admission was an act of free will unaffected

by initial Fourth Amendment illegality. Miranda warnings by themselves do not break the causal chain. Brown, however, rejects any

automatic "but for" rule. Whether a confession is the product of a free

will under Wong Sun, supra, must be answered on the facts of each

case. Miranda warnings are an important factor. So too are the

temporal proximity of the arrest and confession, the presence of

intervening circumstances, and the purpose and flagrancy of the official misconduct. Brawn v. Illinois, supra, at 003 and 004.

Measured against these criteria the Service has met its burden.

There is unrebutted testimony and evidence as to much more than

mere Miranda warnings. The warnings themselves were particularly

full and complete. There was an intervening lapse of time of about

seven hours (as against the less than two hours in Brown) between

arrest and statement. There is no satisfactory showing of flagrant

government misconduct, nor a deliberate Fourth Amendment violation "for investigation" or for "questioning" as was the case in Brown

(See II—below). None of the evidence relied on was obtained at the

time of the arrest.2 Above all, there is the testimony of the Service

officer respecting the completely voluntary nature of the admissions,

to establish their lack of connection with the arrest. Under these

circumstances, under the rule in Wong Sun v. U.S, supra, the admission cannot be rejected out of hand, as the majority has done.

In summary, the Service has met its burden by a combination of (1)

the recitations of the documents themselves, (2) the testimony of the

investigator, (3) the lapse of time, and (4) the removal to a different

physical location. There is no evidence whatsoever, with respect to

Exhibits 1, 2, and 3, even in the form of an offer of proof, let alone any

testimony, that the respondent was in any way influenced by the

circumstances of the arrest in giving the information in these exhibits.

2 In this respect the ease differs materially from

Wong Chung Cho, and Wong Pei Tong

v. INS, 565 F.2d 166 (1 Cir. 197'7), where the immigration judge had placed heavy reliance

on a Crewman's Landing Permit obtained from the alien himself at the scene of the

arrest.

88

Interim Decision #2725

Nothing whatsoever counters the substantial government showing

that whatever taint there may have been in the arrest, would have

been purged, and the causal chain, broken. The admissions and exhibits

must be taken at their fame value.'

Under this view of the ease, it is not necessary to reach the appli-

cability of the exclusionary rule. Even assuming a Fourth Amendment

violation, the exhibits were admissible and the government has met its

burden of establishing aliemage and deportability by clear and convincing evidence, Woodby v. INS, 385 U.S. 276, 285 (1966). I would concur in

a grant of the privilege of voluntary departure, the only relief for

which the respondent could be eligible, solely to bring the case, which

has been pending far too long, to a conclusion.

II

Assuming, arguendo, the necessity of examining the arrest, the

second point of divergence is with respect to the majority finding that

an illegal arrest has been established. As the majority notes (Dec. page

4) the facts relating to the challenged "search" were not clearly developed. The evidence as to a claimed illegal arrest consists of the respondent's affidavit in supiort of her motion to suppress (on advice of

counsel she stood largely mute throughout the hearing) and the testimony of a witness to the arrest. Taking this evidence in its most

favorable light to the respondent, there is a vagueness in crucial

details.

At about 6:00 a.m., when the respondent's husband was preparing to

go to work, he was alerted. by a telephone call that the Service officers

were on their way or were in the neighborhood. This was some 15

minutes before the investigators arrived at the apartment building in

which the respondent lived with her husband.* We do not know exactly

what he was told on the phone, but there is at least a reasonable

possibility that the officers were pursuing a specific lead directly to the

respondent or her husband or both. This was not developed by either

side, beyond ascertaining that the officers did not have a warrant of

arrest. Again, the street entrance to the apartment building, according

to testimony, was locked. There is evidence that the officers could not

have gained entry into the building unless they secured permission of

the caretaker on the first floor, and established in some manner their

authority to enter. The record is silent in this area.

The respondent's witness, Jose Sandoval, a nephew of the respondFor what it is worth it will be noted that there is testimony the respondent was not

held in custody "after she was 'brought to the office" (Tr. -23). It raises an intriguing

question as to just when custody ceased.

At the time of the hearing the husband had departed to Mexico (Tr. 42).

Interim Decision #2725

ent's husband, testified that the officers entered the apartment,

knocked on the wall after entering, and identified themselves. Clearly,

if the officers knocked before entering, this would be inconsistent with

the representations of their entering "quickly without permission or

consent." Yet, if their actions were as depicted, why would they knock

at all? It is unquestioned that there was in fact a knock, raising at least

the likelihood that they may have requested and received permission

before entering a crucial area of inquiry if the arrest is to be the

turning point of the case. The witness at first (Tr. 56) testified that the

door to the respondent's apartment was locked when the immigration

officers arrived. Subsequently (Tr. 59), he stated it was not locked.

Again, this is a crucial point of inquiry.

No substantial offer of proof was made, or evidence submitted, of

abusive conduct by the Service officers following the arrest. Those

present were questioned as to "legal papers." There was no search of

the person. The search, such as it was, was "under the beds and the

rooms"—apparently for illegal aliens; nothing was taken from the

persons or the premises or from the respondent herself. While these

points are not determinative of the nature of the arrest itself, they do

tend to negate a picture of a coerced and violent entry and search. All

of these considerations, coupled with the obvious possibility for misstatement, confusion, or misunderstanding, create substantial doubts

whether the respondent's allegations as to a Fourth Amendment violation can be taken at their face value.

The respondent did ask to call the arresting officer to the stand at the

outset of the hearing. No objection was interposed by the Service trial

attorney, but the request was denied by the immigration judge as

premature (Tr. 26). At the time the request was based solely on the

affidavit of the respondent in support of her motion to suppress. She

herself at no time testified in support of the affidavit nor did she

submit herself to examination respecting the circumstances of the

arrest or what took place afterwards. Instead she chose to rely on the

testimony of Jose Sandoval. (Tr. 40). Following the testimony of

Sandoval, both sides rested on the issue of deportability. 5 The request

to subpoena the arresting officer was never renewed, with the result

that the record is left in the dubious state in which we now find it.

There was other error below. Either through lack of knowledge of

the meaning of 8 C.F.R. 242.17(d), or unwillingness to rely on the

somewhat clouded terminology of that regulation, the respondent not

only refused to testify with respect to alienage and deportability, but

Respondent testified to some extent in support of her application for voluntary

departure, although here too, refusing to answer many questions on 5th Amendment

grounds.

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Interim Decision #2725

gave very limited testimony in support of her application for discretionary relief of voluntary departure. In this the immigration judge

was at least partly to blame in not advising (Tr. 74), that any admissions made in this connection could not be used against her on the issue

of deportability. This Board has since clarified the interpretation of

the regulation. An alien may testify freely in support of an application

for voluntary departure without fear of adverse affect on the case in

chief. Matter of Bulos, Interim Decision 2486 (BIA 1976). See also

Matter of Lam, 14 I&N Dec. 168, 173 (BIA 1972); Matter of Tsang,14

I&N dec. 294, 296 (BIA 1973).

The majority decision has recognized this deficiency in the record

and has solved the problem by granting voluntary departure. I would

concur in that grant, as a practical matter, for the reasons stated in I,

above, and to bring the case to a speedy conclusion. However, if the

proceeding has to be remanded for other reasons, as is the case if the

exclusionary rule issue is to be reached because of a possible Fourth

Amendment violation, then the question of her eligibility and worthiness for this relief should also be developed fully in reopened proceedings, particularly since Exhibit 2 shows that this is her second entry.

In light of Matter of Bulos, supra, respondent is now free to testify

without restraint

These inadequacies of the record are significant if this case is to be a

tour de force on the legal issue. It has not been satisfactorily shown

that the arrest was illegal. At the same time some groundwork has

been laid. The majority ruling on the inapplicability of the exclusionary rule is, at the very least; premature. That issue involves a complex

consideration of reach and scope of the Fourth Amendment prohibition against unreasonable search and seizure. It can affect countless

cases for years to come. Should this case be made the subject of a

petition for judicial review, as it gives every indication it may, a court

has the right to know if it needs to reach such an issue, or if the case

could be disposed of on other, well established and less controversial

principles. Accordingly, again assuming the dubious necessity for

meeting the issue, the record should be remanded for full development

of the circumstances of the arrest, including the testimony of the

arresting officer and of the respondent should she elect to testify. If, on

remand, a lawful arrest is proved, the issue can then be met with full

knowledge of all of the facts, and an appreciation that it is real rather

than hypothesized.'

The argument is not convincing that, since the Service has already

' This also would have the incidental benefit of facilitating evaluation of the quality of

the Fourth Amendment violation, if any, in accord with the rule in Brown v. Illinois,

supra.

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Interim Decision #2725

expressed its view that the exclusionary rule has no applicability in

these cases, a remand would serve no useful purpose. The Service has

adopted a similar position as to Miranda warnings, yet they are in fact

required by regulation, appear in Service forms, and are given, even

though not judicially mandated. 8 C.F.R. 287.3; Navies-Duran v. INS,

568 F.2d 803 (5 Cir_ 1977); Trias-Hernandez v. INS, 528 F.2d 366 (9 Cir.

1975). Either for purposes of this case, or for clarification of the record

in anticipation of a court challenge, or in defense of Immigration and

Naturalization Service actions and those of government officers generally, or having in mind possible criminal prosecution in this and in

other cases, or for other reasons not known to this Board, the Service

might still prefer to amplify this record. More importantly, a remand

is required for the sake of the respondent.

If the respondent's legal position should be examined on judicial

review, it should not meet with a rebuff solely as a result of her not

having an opportunity to present significant evidence_

III

Lastly, since this case may well reach the courts in its present

posture, it is necessary to state a position on the applicability of the

exclusionary rule in deportation proceedings.

It is difficult to quarrel with substantial portions of the majority

decision. The applicability of the exclusionary rule in civil proceedings,

generally, does appear to be a viable issue. Weeks v. LT. S., 232 U.S. 383

(1914); Wong Sun v. U.S., 371 U.S. 471 (1963); U.S. v. Janis, 428 U.S. 433

(1976); cf. Concurring Opinion Chairman Roberts, Matter of Yau, 14

I&N Dec. 630, 637 (BIA 1974). Concededly too, it has now been established that the deterrent effect of the rule underlies its purpose and

usefulness. U.S. v. Calandra, 414 U.S. 338 (1974); United States v. Janis,

supra.

Some impatience with the application of the exclusionary rule in

deportation proceedings, is also understandable. In case after case,

this Board has been confronted with a mute alien and a claim that

evidence is tainted by a Fourth Amendment violation and hence should

be excluded. Unlike the instant case, frequently no foundation whatsoever has been laid for such a claim. As Board Member Farb noted in

his separate concurring opinion, the claims are often advanced in that

large body of cases involving claimed recent entrants without inspection, as to whom there usually exist no Service records and little

besides the aliens' own admissions to establish alienage and deportability. In many such cases no affirmative defense to .deportability

is offered, no offer of proof of improper Service action is advanced, at

least in correct or substantial form, and a loud outcry is made for

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Interim Decision #2725

production of the arresting officer, whether his testimony is shown to

be necessary or not, presumably so that the respondent may lose

himself, the Service, and this Board, in the thickets of obfuscation and

delay thus created.

To the extent that this sort of irresponsible challenge is a by-product

of holding the exclusionary rule applicable in deportation cases, the

majority decision is correct. However, that a challenge may be

mounted irresponsibly, in itself does not justify rejection of the rule as

a matter of law. Rather, each claim must be met on a case-to-case basis

with patience and firmness, and with due regard to the merits of the

given case. The exclusionary rule protects the long time lawful

permanent resident just as much as the recent entrant without inspection. In any event, it is doubtful that elimination of the exclusionary

rule will cure these claims. Challenges to the admissibility of evidence

can always be counted on allegations of duress, coercion, and lack of

due process. 8 C.F.R. 287.3 bears indigenous seeds for motions to

suppress for failure to follow correct arrest procedures. As long as this

regulation remains in the books—and the Service, thankfully, has

shown no inclination towards removing it—there is always the possibility of a frivolous and purely dilatory challenge to the admissibility

of evidence_

However, the majority decision glosses over, much too lightly, one

very serious, and perhaps determinative, consideration. It is too late in

the game for a change of Service or Board position regarding the

applicability of the exclusionary rule. The fact is that the Immigration

and Naturalization Service has accepted and applied the rule, as has

this Board, for many years and in countless cases since the dictum in

U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155 (1929) that "evidence

obtained * * * through an illegal search and seizure cannot be made the

basis of a finding in deportation proceedings." As the majority notes,

the Board Eas often pointed to untainted evidence in cases involving

this issue, as the basis for its decision, and has refused to rely on

evidence which might be flawed by a Fourth Amendment violation.

See, for example, Matter of Cheung, 13 I&N Dec. 794, 796 (BIA 1971);

Matter of Wong, 13 I&N Dec. 820, 822 (BIA 1971); Matter oftiemblen, 14

l&N Dec. 739 (BIA 1974). The published decisions are replete with

discussion of the admissibility of evidence challenged on the ground of

illegal arrest and search—discussion which would be surplusage if the

Board were not applying and following the exclusionary rule. It is

totally irrelevant that the rule has been followed and applied, sometimes expressly, and sometimes by implication. The rule has been

followed. There is no question whatsoever that this is the case.'

A partial list of relevant administrative and judicial decisions is set forth in the

Interim Decision #2725

The rule having been accepted and followed for so many years, the

natural inquiry is—what reason is there for a change now? The

majority decision fails to answer this satisfactorily. The Service has

advanced no argument for a change beyond mere reliance on the civil

nature of deportation proceedings, and advice that, according to a

memorandum of the Associate Attorney General, the Department of

Justice is adopting, generally, the rule which the Service is now urging

upon us. We, of course, are not bound by the enunciation of position of

the Associate Attorney General. See U.S. ex rel Accardi v. Shaughnessy, 347 U.S. 260 (98 L.Ed. 681, 74 S.Ct. 499).

Despite the strident debate by legal scholars over its efficacy, the

exclusionary rule remains the law of the land. To date, nothing in the

precedents has limited its application to criminal eases. On the contrary, its application to some civil proceedings has been recognized in the

federal courts. See, for example, Pizzarello v. U.S., 408 F.2d 579 (2 Cir.

1969), cert. denied, 396 U.S. 986 (1969)—civil assessment of wagering

taxes; Knoll Associate Inc. v. Federal Trade Commission, 397 F.2d 530

(7 Cir. 1968) use of stolen documents by Federal Trade Commission

barred in civil action; Powell v. Zuckert, 366 F.2d 634 (D.C. Cir. 1966)—

review of plaintiff's discharge from the Air Force; One 1958 Plymouth

Sedan v. Commonwealth of Pa.. 380 U.S. 693 (1965) civil proceeding

by the state for the forfeiture on an automobile; Rogers v. U.S., 97 F.2d

691 (1 Cir. 1938)—civil action to recover customs duties on imported

liquors; U.S. v. Blank, 261 F.Supp. 180 (N.D. Ohio 1966)—civil tax

assessment; Lassoff v. Gray, 207 F.Supp. 843 (W.D. Kentucky 1962)—

civil liability for wagering taxes and assessment. See also U.S. v. Janis,

supra, at 455, 456 and cases there cited. There is also judicial recognition of its use in deportation proceedings, Ex parte Jackson. 263 F.110

(DC Mont. 1920), appeal dismissed 267 F.1022 (9 Cir. 1920); Schenck ex

rel Chow Pook Hong v. Ward, 24 F.Supp. 776 (DC Mass 1938); Wang

Chung Che v. INS, 565 F.2d 166 (1 Cir. 1977); (and see also court cases

cited in APPENDIX).

The rationale of these cases is well expreAed in U.S. v. Blank, supra,

"Where as here there is a correlative civil action open to the Government which imposes a penalty * * * commensurate with the criminal

sanctions to which as accused, victimized by an illegal search would be

exposed, then we see rio distinguishable difference between the two

forms of punishment which excuses the government from complying

—

—

APPENDIX. As is to be expected, the growth in the sophistication of the challenges is

compatible with that of the judicial rulings. While the references to the Fourth Amendment, "tainted evidence," "fruit of the poisoned tree, the exclusions/7 rolo," and formal

Motion to Suppress, appear, as such, primarily in the later decisions, the basic underlying challenge to the admissibility of evidence is the same in all of the cited cases, namely,

that it was procured by a Fourth Amendment violation.

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Interim Decision #2725

with constitutional mandates when prosecuting their action in a civil

forum." Id, at 182. While the applicability of the rule in all civil

proceedings would be highly questionable—and in fact has been

rejected, U.S. v. Frederickson, 581 F.2d 711 (8 Cir. 1978); U.S. ece rel

Sperling v. Fitzpatrick, 426 F.2d 1161 (2 Cir. 1970), absent special

considerations it would seem that a nexus to a criminal sanction

should reasonably dictate its use. One 1958 Plymouth, Sedan v. Commonwealth of Pa., supra.

It will be noted that all of the foregoing cases involved intrasovereign violations, a careful distinction drawn in Janis, supra.Their

precedent force, therefore, is in no way impeached by Janis, a decision

based on the blunting of the deterrent effect of the rule by the lack of

interaction between the federal criminal proceeding, and a state civil

proceeding. Janis, on the other hand, does emphasize the significance

of the proximity of the deterred action to the result sought to be

achieved.

We are concerned here with one Governmental agency and the

enforcement of a statute narrowly restricted to aliens. The evidence

supporting the civil deportation case is frequently the same as that

which may support a criminal proceeding against the same person.

See, for example, Section 27E I&N Act. 8 U.S.C. 1325 (Illegal Entry).

The same arresting officer initiates both proceedings and precipitates

either or both of the results—i.e., civil or criminal. Even with full

awareness of the many cases rejecting, in a civil deportation proceeding, the constitutional safeguards applicable generally to criminal

proceedings, one cannot ignore the severe consequences of deportation

in some cases, and its analogy to a criminal sanction (Fong Haw Tan v.

Phelan, 333 U.S. 6, 10). Despite the circumscription of such rulings as

Almeida-Sanchez v. INS, 413 U.S. 266 (1973); Brignoni-Ponce, 422 U.S.

873 (1975); and U.S. v. Martinez-Fuerte, 514 F.2d 308 (9 Cir. 1975),

Immigration and Naturalization Service officers have wide latitude to

arrest without warrant, both in anticipation of criminal proceedings,

and/or as a precursor to the civil deportation proceedings (Section 287,

Section 235, I&N Act, 8 U.S.C. 1357 and 1225).

In essence, civil and criminal proceedings walk hand in hand in

intrasovereign wedlock. We have, therefore, the two requisites for use

of the rule in civil proceedings: 1) an intrasovereign relationship, and

2) a correlative criminal sanction. Under the majority position, the

government may have a criminal action against an alien for violation

of section 275 (8 U.S.C. 1325) thrown out because of fatally contaminated evidence, and then turn right around and proceed against him in

a deportation proceeding of equal or greater consequence, relying on

the identical evidence. This is wrong. U.S. v. Blank, One 1958 Plymouth

Sedan v. Commonwealth of Pa., supra.

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Interim Decision #2725

Underlying the majority decision is the premise that there is something inherent in a civil deportation proceeding, as against a criminal

proceeding, which makes the application of the rule (a) less necessary,

and (b) less effective. Neither of these assumptions is acceptable.

There is inconsistency in the majority reasoning that since the

exclusionary rule will continue to deter misconduct because criminal

proceedings may flow from the deportation "arrest," therefore it is not

necessary to apply the rule to the civil proceedings flowing from that

arrest. The deportation itself, in some cases, civil or not, is a far more

serious consequence than the brief imprisonment or negligible fine

customarily meted out for criminal immigration violations, by the

courts. If necessary and effective as a deterrent flowing from inability

to establish the criminal case, it is at least just as necessary as to the

civil one.

The Fourth Amendment guards the right of the "people" to the

security of their homes, property and persons. It is not limited in its

language either, as to criminal cases or as to citizens.° The exclusionary rule, in turn, links the power Co search and seize with the use of

incriminatory evidence. Its purpose is to insure that an abuse of one

takes the profit out of the acquisition of the other. It prevents the

violation by penalizing the violator. Aborting the consequences of a

violation is only an incidental result, or, better stated, a means to the

primary end of curbing. Fourth Amendment violations.

So long as an abuse of a power to invade privacy and arrest and

search, might be an integral part. of the gathering of incriminatory

evidence for use in either a civil or criminal proceeding, as is possible

in deportation cases, it would seem to make little difference, so far as

the violation is concerned, if the end result is the use of the evidence in

a civil, or criminal, proceeding, or both. If anything, looking to the need

for the rule, it would seem to follow that the less significant the

objective sought to be obtained by the breach of the constitutional

imperative, the more reprehensible and needful of restraint or deterrence, is the violation. Certainly nothing in the inherent nature of a

civil deportation proceeding, even assuming it has less "importance"

than a criminal ease, supports the conclusion the rule is less necessary.

Indeed, given the possible lack 01 education of the alien, frequent

language difficulties, and unfamiliarity with either the law or his

rights in a strange country, the opposite would seem to be the case.

"For the inalienable rights of personal security and safety, orderly and due process of

law, are the fundamentals of soda! compact, the basis of organized society, the essence

and justification of government, the foundation, key, and capstones of the Constitution.

They are limited to no man, race, or nation, to no time, place, or occasion, but belong to

man, always, everywhere, and in all circumstance. Every nation demands them for its

people from all other nations." Ex parts Yackson, 263 F.110,113.

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Interim Decision #2725

To evaluate the effectiveness of the rule when applied to deportation

proceedings, it is necessary to appreciate its rationale. The exclusionary rule is premised on the assumption that the likelihood of aborting

a prosecution is a sufficiently significant loss to an officer, to deter him

from violations in the future. The majority, in effect then, is saying

that the civil deportation proceeding is not sufficiently significant, as

compared with a criminal proceeding based on the same facts, to bring

the deterrent effect of the rule into play.

This too does not withstand examination. On the contrary, if the

evidence is barred in the civil deportation proceedings, the consequences are grave enough that the deterrent effect is equivalent to that

in a criminal proceeding stemming from the same breach of the law.

As for the officer, one possible result of his violation could be, as the

majority notes, that the illegal alien may be forever in a non-deportable status. At the very least, new proceedings, wasteful of manpower

and money, and uncertain in result, might have to be begun. This

should certainly deter a conscientious Service officer from the violation. The conclusion is inevitable that the rationale of the exclusionary

rule compels its application to this proceeding.

That there is a paucity of cases terminated because of Fourth

Amendment violations, is the soundest proof that the Service has been

able to live more than adequately with the rule and that, as the

majority noted (Dec. 13), the "societal costs" of the application of the

rule have been minimal. Indeed, if one is to look to consequences

(admittedly a questionable basis for decision making), there is probably no better way to facilitate confusion and delay in these cases than

through the litigious weapon the majority has now forged. Where

hitherto the Board has patiently examined each of these claims of

Fourth Amendment violations, their summary rejection as a matter of

law, can only spawn repeated, unexamined, unrebutted, and, undoubtedly, lurid, claims of abuse.

In the past the Board has demanded an acceptable, nonfrivolous

offer of proof as a minimum. Matter of Geronimo, 13 I&N Dee. 680 (BIA

1971); Matter of Tang, 13 I&N Dee. 691 (BIA 1971); U.S. v. Garcia, 272

F.Supp. 286 (S.D.N.Y. 1967); Matter of Godfrey, 13 I&N Dec. 790 (BIA

1971); Matter of Wong, 13 I&N Dec. 820 (BIA 1971). It has relied only on

clearly untainted evidence. If an immigration judge failed in this

regard, or misunderstood the position of this Board, the questioned

evidence was either given no weight, rejected outright, or the case was

returned so that the record might be clarified as to just what had

occurred and whether the evidence was tainted or not. See, for example, Matter of Cheung and Matter of Wong, supra. In at least one

instance where the Board failed to clearly set forth its reasons for

accepting apparently questionable evidence, it was quickly called to

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Interim Decision #2725

account. Wong Chung Che v. INS, 565 F.2d 166 (1 Ch. 1977). With this

screening, the rule has worked, and the frivolous claim has been sifted

out, generally without too much trouble. On the other hand, the

occasional nonfrivolous claim, supported by hard facts, has received

the attention that it deserves.

In summary, the long standing practice of the Board has been to

recognize and apply the exclusionary rule. This has been satisfactory

up to this point, due in part to a screening process which weeds out

frivolous and irresponsible claims, yet permits scrutiny of substantial

challenges. No adequate reason for a change in the Board's position

has been put forth. There is judicial support for the use of exclusionary

rule in civil proceedings, including deportation proceedings.

Precedents dictate its use in civil proceedings involving (1) an intrasovereign relationship and (2) a correlative criminal proceeding.

Deportation is such a proceeding. The reason for the existence of the

rule dictates its application here, both in the aced for the rule and its

possible effectiveness as a deterrent. Lastly, experience has shown an

absence of serious societal costs in the use of the rule in deportation

proceedings.

For all of the above reasons I am unable to concur in that portion of

the majority decision which holds that the exclusionary rule is inapplicable in civil deportation proceedings.'

Solely for the reasons set forth under Part I of this separate decision, I would find the alien deportable, and would grant voluntary

departure within 30 days from the date of this order or such further

extension as might be granted by the District Director.

APPENDIX

Matter of B—R—, I&N Dec. 760 (BIA 1952); Matter of D—M—, 6 I&N

Dec. 726, 729 (BIA 1950; Matter of R — S — , 7 I&N Dec. 271 (A.G. 1956);

Matter of T—, 9 I&N Dec. 646, 647 (BIA 1962); Matter of Pang 11 I&N

Dec. 213 (BIA 1965), aff'd sub nom.; Ah Chiu Pang v. INS, 368 F.2d 637

(3 Cin 1066), cert. denied, 386 U.S. 1037; Matter of Chen, 12 I&N Dec.

603 (BIA 1968); Matter of Yam, 12 I&N Dec. 676 (BIA 1968), aff'd, Yam

Sang Kwai v. INS, 411 F.2d 683 (D.C. Cir. 1969), cert. denied, 396 U.S.

877; Matter of Doo, 13 I&N Dec. 30 (BIA 1968); Matter of Methure, 13

I&N Dec. 522 (BIA 1970); Matter of Lane,13 I&N Dec. 632 (BIA 1970);

• There may be alternatives (Dec. P.14ff). They may or may not be effective. Clearly,

their existence does not compel rejection of the present remedy. Employee complaints to

the Service might seem of questionable effectiveness; and the parameters of Bivens v.

Six Unknown Narcotics Agents, 403 U.S. 388 (1971), and not yet fully known.

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Interim Decision #2725

Matter of Yau, 14 I&N Dec. 630 (BIA 1974); Matter of Scavo, 14 I&N

Dec. 326 (BIA 1973); Matter of Tsang, 14 I&N Dec. 294 (BIA 1973);

Matter of Wong, 13 I&N Dec. 820 (BIA 1971); Matter of Tang, 13 I&N

Dec. 691 (BIA 1971); Matter of Au, Yam, and Lam, 13 I&N Dec. 294

(BIA 1969); aff'd, Au Yi Lau v. INS, 445 F.2d 217. (D.C. Cir. 1971), cert.

denied, 404 U.S. 864; Matter of Burgos and Burgos-Goeloy, Interim

Decision 2375 (BIA 1975); Matter of Chen, Interim Decision 2440 (BIA

1975), kifi'd Nai Chew Chen v. INS, 537 F.2d 566 (1 Cir. 1976); Matter of

.Rojas, Interim Decision 2444 (BIA 1975) Matter of Bulos, Interim

Decision 2486 (BIA 1976); Matter of Rojas, Interim Decision 2510 (BIA

1976); Matter of Davila, Interim Decision 2621 (BIA 1976); Matter of

Mejia, Interim Decision 2527 (BIA 1976); Matter of Gonzalez, Interim

Decision 2536 (BIA 1976); Matter of Escobar, Interim Decision 2538

(BIA 1976); Matter of Castro, Interim Decision 2547 (BIA 1976); Matter

of Baltazar, Interim Decision 2556 (BIA 1971); Matter of Cachiguango

and Torres, Interim Decision 2582 (BIA 19'77); Matter of Taerghodsi,

Interim Decision 2596 (BIA 1977); Matter of King and Yang, Interim

Decision 2647 (BIA 1978).

See also Klissas v. INS, 361 F.2d 529 (D.C. Cir. 1966); Vlissidis v.

Anadell, 262 F.2d 398 (7 Cir. 1959); Ho Chong Tsao v. INS, 538 F.2d 667

(5 Cir. 1976); Aguirre v. INS, 553 F.2d 501 (5 Cir. 1977); Cordon de

Rum) v. INS, 554 F.2d 944 (9 Cir. 1977); Hconsilapa v. INS, 575 F.2d

735 (9 Cir. 1978); Cheung Tin Wong v. INS, 468 F.2d 1123 (D.C. Cir.

1972); Skit Fuk Cheung v. INS, 476 F.2d 1180 (8 Cir. 1973); Hv,erta,

Cabrera v. INS, 466 F.2d 759 (7 Cir. 1972); Ojeda-Vinales v. INS, 523

F.2d 286, 287 -288 (2 Cir. 1975); Illinois Migrant Council v. Pilliod, 548

F.2d 715 (7 Cir. 1977); modifying, 540 F.2d 1062 (7 Cir. 1976); Marquez v.

Kiley, 436 F.Supp. 100 (S.D.N.Y. 1977); Shan Gan Lee v. INS, 590 F.2d

497 (3 Cir. 1979).

99