Interim Decision #2839

Interim Decision #2839

MATTER OF PEREZ-VALLE

In Deportation Proceedings

A-19981512

Decided by Board November 19, 1980

(1) Where the judgment in a criminal case is an acquittal, rather than a conviction,

collateral estoppel is applicable in a subsequent criminal case as to matters necessarily determined in reaching the acquittal. Ashy v. Swenson. 397 U.S. 436 (1970).

(2) Collateral estoppel is not applied with respect to an acquittal to bar a subsequent

civil quit because of the differences between civil and criminal law and procedure.

Helvering v. Mitchell, 303 U.S. 391 (1938).

(3) Where a defendant has been acquitted on a criminal charge, one of the essential

elements of which was alienage, the doctrine of collateral estoppel does not preclude

litigation of the question of his alienage in a subsequent deportation proceeding.

CHARGE:

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)3—Entry without inspection

ON BEHALF OF SERVICE

ON BEHALF OF RESPONDENT:

Raymond Campos, Esquire

Vivero & Campos

304 South Broadway, Suite 310

Jane Gersbacher

Trial Attorney

Los Angeles, California 90013

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

In a decision dated August 14, 1978, an immigration judge found the

respondent deportable as charged and granted him voluntary depar-

ture. The respondent has appealed. The appeal will be dismissed.

The respondent is 35 years old, allegedly a native and citizen of

Mexico. The record reflects that on April 15, 1966, he was granted

voluntary return to Mexico. On December 8, 1970, in the United States

District Court for the Southern District of California,. the respondent

was found guilty in accordance with his pleas of guilty on two counts of

making a false claim to United States citizenship in violation of 18

U.S.C. 911. He was sentenced to confinement for 3 months and 10

months, respectively, with confinement in excess of 3 months suspended. In addition, he was placed on probation for 5 years. On June 19,

1972, the respondent was convicted in the United States District Court

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for the Southern District of California of conspiracy and transportation of illegal aliens in violation of 18 U.S.C. 317 and 1324 (four counts).

He was sentenced to 3 years confinement and placed on probation for 3

years. He last entered the United States from Mexico on March 7, 1974,

again claiming to be a citizen of the United States. On September 28,

1977, the United States District Court for the Central District of

California acquitted him on a charge that he was an alien found in the

United States after deportation in violation of 8 U.S.C. 1326. On

February 2, 1978, an Order to Show Cause was issued charging the

respondent with deportability for having entered the United States

without inspection. At his hearing, the respondent admitted that he

last entered the United States at San Ysidro, California, claiming to be

a United States citizen. Deportability in this case rests upon the

determination whether the respondent is an alien.

On appeal, the respondent contends that his September 28, 1974,

acquittal on the charge of being an alien found in the United States

after deportation is res judicata to the Government on the issue of

alienage. The respondent's argument is in essence that the judge

acquitted him because he is a United States citizen and, therefore, the

Government is collaterally estopped by the former acquittal from relitigating the issue of alienage' We find the respondent's contention to

be without merit _

It is well settled that the facts necessary for a criminal conviction

and judgment are deemed conclusive in any later civil suit between the

same parties or their privys. Enrich Motors Corporation v. General

Motors Corporation, 340 U.S. 558 (1951); Local 167, LB.T., etc. v. United

States, 291 U.S. 293 (1934); United States v. Kaplan, 267 F.2d 114 (2 Cir.

1959). A determination of alienage in connection with a criminal

conviction has been held conclusive in a subsequent suit for revocation

of naturalization. United States v. Accardo, 113 F.Supp. 783 (D.C.N.J.

1953), eV., 208 F.2d 632 (3 Cir. 1953).

The Board has also applied estoppel to preclude re litigation of

issues decided by a criminal conviction. Thus, a respondent convicted

for illegal entry has been collaterally estopped from re-litigating the

issue of illegal entry in deportation proceedings. Matter of Rina, 15

I&N Dec. 346 (BIA 1976). A respondent convicted for fraudulently

procuring a visa has been estopped from establishing that he had not

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' The term urea judicata" has been given many different meanings. Current usage

gives it a broad meaning which covers all the various ways in which a judgment in one

action has a binding effect in another. This includes the effect of the former judgment as

a bar or merger where the latter action proceeds on all or part of the very claim which

was the subject of the former. It aloe includes what has come to be known as collateral

estoppel—the effect of a former judgment in a later action based upon a different claim

or demand. See F. James, Civil Procedure, section 11.9 (1965).

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obtained the visa by fraud. Matter of Z—, 5 I&N Dec. 708 (BIA 1954). A

respondent convicted for attempting smuggling of heroin into the

United States contended in exclusion proceedings that he was brought

to the United States against his will. The Board found that this

contention had been presented to and rejected by the criminal court

and held that the respondent was estopped from relitigating that issue

in exclusion proceedings. Matter of Grandi, 13 I&N Dec. 798 (BIA 1971).

Where the judgment in a criminal ease is an acquittal, rather than a

conviction, collateral estoppel is applicable in a subsequent criminal

case as to matters necessarily determined in reaching the acquittal.

Ashe v. Swenson, 397 U.S. 436 (1970). However, an acquittal does not

bar a subsequent civil action remedial in its nature based upon the

same facts alleged in the criminal case' Thus, one acquitted of

criminal tax evasion may nonetheless be found to have evaded taxes so

as to be subject to the 50 percent civil tax fraud penalty. Helvering v.

Mitchell, 303 U.S. 391 (1938). A forfeiture of imported merchandise not

included in a declaration of entry pursuant to the tariff provisions of

the United States Code is not barred by a. prior acquittal on a charge of

having smuggled that merchandise into the United States. One Lot

Emerald Cut Stones and One Ring v. United States, 409 U.S. 232 (1972).

Likewise, the doctrine of collateral estoppel does not prohibit a parole

board from finding a petitioner guilty of a violation of parole following

an acquittal on the same underlying charge in a criminal trial. See

Standlee v. Rhay, 557 F.2d 1303, n.2 (9 Cir. 1977). This rule is applicable

in deportation cases. The Supreme Court has held that an acquittal on

a criminal charge alleging that the defendant procured and brought a

woman to the United States for immoral purposes may nonetheless be

found deportable based on the acts underlying that charge. See Lewis

v. Frick, 233 U.S. 291 (1914)'

Collateral estoppel is not applied with respect to an acquittal to bar

a subsequent civil suit because of the differences between civil and

criminal law and procedure. The following quotation from Helvering v.

Mitchell, 303 U.S. 391 (1938), is instructive:

The difference in degree of the burden of proof in criminal and civil proceedings

precludes application of roe Indicate. The acquittal was "merely ... an adjudication

that the proof was not sufficient to overcome all reasonable doubt of the accused."

Lewis v. Frick, 233 U.S. 291 (1914).... It did not determine that Mitchell had not

2 If a subsequent civil action is punitive in nature, it may be barred. See Coffey v.

United States,116 U.S. 436 (1886); compare Coffey with One Lot Emerald Cut Stones v.

United States, 409 U.S. 232 (1972); see also Standlee v. Rhay, 557 F.2d 1303, n.2 (9 Cir.

1977).

3 Although the standard of evidence necessary to establish deportability has changed

since 1914 (see Woodby v.INS, 385 U.S. 276 (1966), the court's reasoning in Levris v. Frick

is equally applicable today.

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willfully attempted to evade the tar. That acquittal on a criminal charge is not a bar to

a civil action by the Government, remedial in its nature, arising out of the same facts

on which the criminal proceeding was based has long been settled. ... Where the

objective of the subsequent action likewise is punishment, the acquittal is a bar,

because to entertain the second proceeding for punishment would subject the

defendant to double jeopardy; and double jeopardy is precluded by the Fifth Amendment whether the verdict was an acquittal or a conviction.. ..

Havering v. Mitchell, supra, at 397.

The Supreme Court has recently set forth other sound reasons for

not applying collateral estoppel to preclude re-litigation of issues

covered by a prior acquittal. In Standefer v. United States,100 S. Ct.

1999 (1980), the petitioner had been convicted on nine counts of an

indictment, including five counts charging him with aiding and abetting a public official in accepting unauthorized compensation. Prior to

the petitioner's trial, the Internal Revenue Service agent whom he had

allegedly aided and abetted was acquitted of all charges alleging that

he had received unlawful compensation. The Court held that the

government was not barred by the doctrine of nonmutual collateral

estoppel from re-litigating the issue of whether the agent had accepted

unlawful compensation despite his acquittal on those charges. The

Court noted that in a criminal case the government is often without

the kind of "full and fair opportunity to litigate" that is a prerequisite

to estoppel. The Court observed that the prosecution's rights of discovery are limited by rules of court and the accused's constitutional

privileges; the prosecution cannot be granted a directed verdict or a

judgment notwithstanding the verdict no matter how clear the

evidence of guilt, compare Federal Rule of Civil Procedure 50; it cannot

secure a new trial on the ground that an acquittal was plainly contrary

to the weight of the evidence, compare Federal Rule of Civil Procedure

59; and it cannot appeal from an acquittal, see United States v. Sall,163

U.S. 662 (1896). The Court also commented that the application of

nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion which are unique to our

criminal law.

While in Standefer the Court was addressing nonmutual estoppel in

the context of a criminal case, the considerations discussed above are

equally applicable where the subsequent case is a civil one, such as the

instant deportation proceedings. The Court's arguments are particularly applicable in this case because the record does not contain a copy

of the transcript of the trial at which the judge merely granted the

respondent's motion for a directed verdict of acquittal.

Thus, we conclude that the respondent's acquittal on the charge of

heing an alien found in the United States after deportation in violation

of 18 U.S.C. 1326 does not preclude litigation of the respondent's

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nationality status in deportation proceedings. Cf. Lewis v. Frick,

supra.

The respondent's December 8, 1970, conviction for making false

claims to United States citizenship in violation of 18 U.S.C. 911 would

ordinarily estop him from claiming United States citizenship from

birth. See United States v. Rangel-Perez, 179 F.Supp. 619 (S.D. Ca.

1959); Pena-Cabanillas v. United States, 394 F.2d 785 (9 Cir. 1968);

United States v. Bejax Matrecios, 618 F.2d 81 (9 Cir. 1980). However, in

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view of the respondent's subsequent acquittal purportedly on the basis

of a finding of citizenship, we think it inappropriate to dispose of this

case by applying collateral estoppel. We will instead examine the

evidence of alienage, and thus deportability, to see whether it is clear,

convincing, and unequivocal. We find that it is. The evidence of

alienage is as follows:

1) The respondent was granted voluntary return to Mexico in 1966.

2) The respondent's birth ccrtiflcate reflects that "... citizen Cirillo Perez, single,

Mexican, farmer, 31 (thirty-one) years of age. Native of Zepatillan, Jallisco and

rosidant of Jegarivrrtite of this area (emphasis added), and said that on the 2nd day of

October of the current year (1944) at about .4 o'clock in the morning, in his home,

without number of said ranch, was born a live male child (the respondent) ....

3) On December 8, 1970, the respondent was convicted of making false claims to

United States eiti7snalairk

4) In an affidavit dated January 24, 1974, the respondent said "I am a citizen and

resident of Mexico."

5) In a deportation hearing on February 31, 1974, the respondent testified under oath

that he was not a citizen or national of the United States but that he was a citizen of

Mexico.

,

Contradicting this evidence of alienage is the respondent's testimony that he is a United States citizen, a statement by his counsel

that the respondent's baptismal certificate will support the respondent's testimony, and a statement by counsel that the respondent's

parents testified at his criminal trial that the respondent was born in

the United States and taken to Mexico where his birth was recorded.

In a deportation case the Government must prove deportability by

clear, convincing, and unequivocal evidence. However, when the

Government establishes a prima facie case of deportability, the burden

shifts to the respondent to go forward with the evidence. In this case,

the Government has presented abundant evidence of alienage while

the respondent has presented only his testimony. Counsel's brief and

comments to the immigration judge are not evidence.

The respondent has been given ample opportunity to present

evidence in his defense. The Order to Show Cause was issued on

February 2, 1978. The hearing was first convened on May 18 and the

Government presented its evidence of alienage. Counsel for the respondent asked for a continuance for the purpose of obtaining a

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transcript of the record of the respondent's acquittal. The continuance

was granted. The hearing was resumed on June 29. The respondent

appeared without counsel and the immigration judge continued the

case. On August 10, 1978, the respondent appeared again without

counsel. The immigration judge gave the respondent a legal aid referral list and again continued the case until August 14, 1978. On that date

the respondent appeared with present counsel, Mr. Campos. Counsel

advised the immigration judge that he had requested a copy of the

transcript of the respondent's acquittal but that he did not know when

it would be ready. He also offered a copy of the respondent's baptismal

certificate. However, the immigration judge refused to admit the certificate into evidence because it was not properly certified or attested.

See 8 C.F.R. 287.6. The immigration judge adjourned the hearing until

September 27 to give counsel an opportunity to obtain the necessary

certification and/or the transcript. On October 25, 1978, the Bearing

resumed. The respondent appeared again without counsel. He advised

the immigration judge that he did not have the money to purchase a

transcript of his prior hearing. The immigration judge then proceeded

to a decision.

Thus, the respondent was given four continuances over a 5-month

period, two of which were granted for the specific purpose of allowing

him an opportunity to obtain evidence of the place of his birth and a

copy of the transcript of the record of his acquittal. No such evidence

was produced..CounseI for the respondent has filed a brief on appeal in

which he referred to the evidence, but he did not attach it. It has been 2

years since the immigration judge's decision, and the respondent still

has not offered that evidence.

Accordingly, the appeal will be dismissed. However, if the respondent produces the evidence discussed above in a form which is admissible in deportation proceedings, we will reopen the proceedings to

consider his evidence.

ORDER. The appeal is dismissed.

FURTHER ORDER' The respondent is permitted to depart from

the United States voluntarily within 30 days from the date of this

order; 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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