CHEN

Interim Decision #2440

MATTER OF CHEN
In Deportation Proceedings
A-20747054
A-19870278
Decided by Board October 20, 1975

(1) Respondent's Arrival-Departure Record, Form 1-94, turned over to a Service inves-
tigator during a preliminary interrogation of respondent outside her home, was not
tainted by the absence of a Miranda-type warning and is admissible in evidence in
deportation proceedings since Miranda is not applicable to civil deportation proceedings
and, moreover, at the time of the interrogation respondent was neither in custody nor
under any compulsion to answer questions. Further, since Form 1-94 is essentially
regulatory a•id noncriminal in nature, it would be admissible in evidence even if
respondent had been in a custodial setting and Miranda were applicable to civil depor-
tation proceedings.
(2) The interrogation of respondent, without prior notice to respondent's counsel, was not
a violation of 5 U.S.C. 500(f), nor of Disciplinary Rule 7-101(A)(1) of the American Bar
Association's Code of Professional Responsibility.
CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}.—Nonimmigrant visitor/
student (spouse of student as to female)—remained longer.
ON BEHALF 0 F. RESPONDENTS: ON BEHALF OF SERVICE:
Stanley R. Lapon, Esquire John Midanek
678 Massachusetts Avenue Appellate Trial Attorney
Cambridge, Massachusetts 02139

In a decision dated October 25, 1974, the immigration judge found the
respondents deportable, but granted them the privilege of voluntary
departure. The respondents, who challenge the admissibility of certain
evidence used against them, have appealed from that decision. They
have also submitted a motion to remand the record in order to give them
the opporturity to apply for adjustment of status under section 245 of
the Immigration and Nationality Act. The appeal will be dismissed, and
the motion will be denied.
The respondents, husband and wife, are natives and citizens of China.
The evidence of record is clear, convincing, and unequivocal that the
respondents are aliens who were admitted to the United States as
480
 Interim Decision #2440

nonimmigrants, and that they have remained beyond the authorized
length of their stays.
The respondents nevertheless contest their deportability. They allege
that the documentary evidence used to establish deportability either
was obtained illegally or was the fruit of evidence obtained illegally. The
respondents therefore contend that this documentary evidence should
have been excluded from consideration by the immigration judge, and
accordingly that the evidence properly introduced does not establish
deportability.
The challenged evidence was given to the Service by the female
respondent during an inteview in August of 1974. Of this evidence, only
Exhibit 10, the Arrival-Departure Record (Form 1-94) relating to the
female respondent was introduced during the hearing. The documen-
tary evidence used to establish the male respondent's deportability was
already in the Service's possession at the time of the interview with the
male respondent's wife, and the Service was already aware of the male
respondent's identity, residence, and alien file number. The Service
therefore did not require any of the information obtained from the
female respondent in order to produce the evidence of the male respon-
dent's deportability whirh was introduced at the hearing.
The Service, however, did use Exhibit 10, the Form 1-94, to establish
the female respondent's deportability. Although the female respon-
dent's affidavit indicates that the Service obtained only the passports of
the respondents during the August 1974 questioning, counsel contends
that the Form 1-94 was also then given to the Service.
The female respondent's affidavit indicates that she was briefly ques-
tioned outside her home by a Service investigator, and that her children
were present during the questioning. At the request of the investigator,
the female respondent went inside her home to get some relevant
documents, presumably including the Form 1-94, and then delivered
these documents to the investigator. The investigator retained the
documents and departed. It is not alleged that the investigator ever
entered the respondent's home.
Counsel for the respondents initially alleges that -the questioning of
the female respondent was done in violation of the principles established,
in Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda v. Arizona,
384 U.S. 436 (1966). Counsel specifically argues that there is a right to
counsel during the preliminary stages of an administrative immigration
investigation, and that the Service was required to give the Miranda
warnings to the female respondent before questioning her.
As counsel recognizes, however, the courts have not applied Miranda
and Escobedo to civil deportation proceedings. See Chavez-Rays v.
INS, 519 F.2d 397 (C.A. 7, 1975); Jolley v. INS, 441 F.2d 1245 (C.A. 5,
1971), cert. denied, 404 U.S. 946 (1971); Lavoie v. INS, 418 F.2d 732

481
Interim Decision #2440

(C.A. 9, 1969), cert. denied, 400 U.S. 854 (1970); Nason v. INS, 370
F.2d 865 (C.A. 2, 1967). Of more importance in this case is the simple
fact that the female respondent was not interviewed while she was
either in custody or under any other compulsion to answer questions.
The female respondent was free to terminate the interview at any time,
and she even returned to the interior of her home during the course of
the questioning. The Service did not violate any of the female respon-
dent's constitutional rights in obtaining the document which counsel
seeks to suppress.
We also note that Exhibit 10, the Arrival -Departure Record (Form
1-94), is a prescribed alien registration form. 8 CFR 264.1(a). Section
264(e) of the Act requires that [e]very alien, eighteen years of age and
over, shall at all times carry with him and have in his personal posses-
sion any certificate of alien registration . . . issued to him. . . ." These
cards are essentially noncriminal in nature, United States v. Sacco, 428
F.2d 264 (C.A. 9, 1970), cert. denied, 400 U.S. 903 (1970), and their
production in the normal immigration inquiry is not prevented by the
Fifth Amendment privilege against self-incrimination. United States v.
Campos Serrano, 430 F.2d 173 (C.A. 7, 1970), aff'd on other grounds,
—

404 U.S. 293 (1971). Thus, the immigration officer's request to see the
Form 1-94 was proper, even if we assume arguendo that the female
respondent was in a custodial setting, and that Miranda is applicable to
civil deportation proceedings. See Matter of You, 14 I. & N. Dec. 630
(BIA 1974).
Counsel also attacks as a violation of professional ethics the Service's
use of information gathered as a result of the questioning of the female
respondent. In this regard, counsel relies on 5 U.S.C. section 500(f), 1
andoDiscplryRue7-104(A)ofthmricanBAsto'
Code of Professional Responsibility.
We find counsel's reliance on 5 U.S.C. section 500(f) to be misplaced.
Section 500(f) simply requires that any notice or other written communi-
cation directed at a represented participant before an agency be given to
the representative. This provision does not purport to limit the inves-
tigatory powers of immigration officers or to require notice to an alien's
attorney before the alien may be questioned.
Counsel contends that the Service violated Disciplinary Rule
7-104(A)(1) 2 when it interviewed the female respondent without notice
to counsel and procured Form 1 -94 from her. We reject that contention.

Counsel specifically relies on Public Law 89-332, 79 Stat. 1281. Public Law 89-332,
however, was re)ealed by the legislation which created 5 U.S.C. section 500(f). See Public
Law 90-83, 81 Seat. 195.
2 DR 7-104(A)(1) of the American Bar Association's Code of Professional Responsibility
provides:
Communicating With One of Adverse Interest.

482
 Interim Decision #2440

It is clear that DR 7-104(A)(1) was not violated. The Service, which
had reason to believe that the female respondent was an alien, was
authorized by section 287(a)(1) to interrogate her as to her right to be or
to remain in the United States, and to require identification. Matter of
Yau, 14 I. & N. Dec. 630 (BIA 1974).
In addition, we note that, with one exception, the courts have de-
clined, in criminal cases, to exclude from consideration statements
taken in apparent violation of DR 7-104(A)(1). See United States v.
Crook, 502 F.2d 1378 (C.A. 3, 1974), cert. denied, 419 U.S. 1123 (1975);
Moore v. Wolf, 495 F.2d 35 (C.A. 8, 1974); United States v. Masullo,
489 F.2d 217 (C.A. 2, 1973); United States v. Springer, 460 F.2d 1344
(C.A. 7, 1972), cert. denied, 409 U.S. 873 (1972); United States v. Four
Star, 428 F.2d 1406 (C.A. 9, 1970), cert. denied, 400 U.S. 947 (1970);
Coughlan v. United States, 391 F.2d 371 (C.A. 9, 1968), cert. denied,
393 U.S. 870 (1968); Wilson v. United States, 398 F.2d 331 (C.A. 5,
1968), cert. denied, 393 U.S. 1069 (1969). See also United States v.
Cobb, 481 F.2d 196 (C.A. 3, 1973), cert. denied, 414 U.S. 980 (1973). The
Tenth Circuit, which established an exclusionary rule in United States
v. Thomas, 474 F.2d 110 (C.A. 10, 1973), cert. denied, 412 U.S. 932
(1973), has limited the scope of that prospective rule. See United States
v. Leyba, 504 F.2d 441 (C.A. 10, 1974), cert. denied, 420 U.S. 934
(1975); United States v. Thomas, 475 F.2d 115 (C.A. 10, 1973). We
therefore conclude that any evidence obtained as a result of the ques-
tioning of the female respondent was properly admitted.
The respondents finally seek a remand of the record in order to apply
for adjustment of status under section 245 of the Act. The respondents
seek adjustment of status as nonpreference immigrants, and the female
respondent claims to satisfy the labor certification requirements of
section 212(a)(14) as an "investor" within the contemplation of 8 CFR
212.8(b)(4).
The evidence presented in conjunction with the motion to remand fails
to set forth a prima fade case under 8 CFR 212.8(b)(4). The female
respondent has not shown that she meets the one-year training or
experience requirement for the "investor" exemption. She presently
appears to manage a Chinese restaurant. Her experience, however, is
not related to the management of any enterprise.
The decision of the immigration judge was correct. The appeal will be
dismissed and the motion will be denied.

(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representa-
tion with a party he knows to be represented by a lawyer in that matter unless he has
the prior consent of the lawyer representing ouch other party or is authorized Ira law to
do so. (Emphasis added.)

483
Interim Decision #2440

ORDER: The appeal is dismissed, and the motion to remand is
denied.
Further order: Pursuant to the immigration judge's order, the re-
spondents are permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondents shall be deported as provided in the
immigration fudge's order.
Irving A. Appleman, Member, Concurring:

I concur in the majority decision. However, I am concerned that our
holding that reversal is not warranted on the ground of a failure to
communicate with counsel, should not be taken out of context. The
failure to notify counsel of record occurred during a preliminary inter-
view of the female respondent, and prior to the issuance of an order to
show cause. No abuse of due process, or gross miscarriage of justice,
has been shown. The overwhelming weight of authority is that there is
no exclusionary rule in these circumstances even in a criminal proceed-
ing, let alone this administrative immigration proceeding.
Notwithstanding this, it would be regrettable if the Service viewed
the decision as endorsement of any general practice of interviewing
aliens, without advising known counsel of record. Apart from the ethical
consideration:5 alluded to in the majority decision, and as a purely
practical matter, it should be apparent that such conduct opens up the
possibility of challenges on the basis of abuse of due process and that
under some factual situations not too difficult to imagine, a review
tribunal may so hold (cf. Chlomos v. INS C.A. 3, 516 F. 2d 310 (1975).

484