BURGOS

Interim Decision #2375

MATTER OF BURGOS

In Deportation Proceedings
A-20354694
A-20353298
Decided by Board April 25, 1975
Under section 237 of the Immigration and Nationality Act, a Service officer is empowered,
without warrant to interrogate an alien as to his right to be or remain in the United
States, and to arrest an alien illegally here who is likely to escape before a warrant can
be obtained. On appeal respondents' counsel contends that it was error not to grant his
motion to suppress the evidence which he alleged was the result of an illegal arrest, and
that it was also error to refuse him freedom to inspect the Service files relating to
respondent; to discover the basis of the arrests; respondents' motion is denied. Whore
respondents admitted at the hearing that they were not United States citizens, under
section 291 e the Act, they had the burden of proving the time, place and manner of
entry into the United States. Since they failed to sustain that burden they are presumed
to be in the United States in violation of law, and were therefore forma deportable by
clear, convincing and unequivocal evidence.
CHARGE:
Order: Act of 1952—Section 241(a)(2)18 U.S.C. 1251(a)(2)]—Entry without inspection
(Both aliens).
ON BEHALF a? RESPONDENTS: William H. Oltarsh, Esquire
225 Broadway
New York, New York 10007

This is an appeal from an order of an immigration judge, dated
October 25, 1974, finding the respondents deportable as charged (entry
without inspection) and denying their applications for voluntary depar-
ture: The appeal will be dismissed.
The respondents are husband and wife. The male respondent is 26
years old, a native and citizen of El Salvador, who entered the United
States on or about March 14, 1972 without inspection by an officer of the
Immigration and Naturalization Service. His wife is 25 years old, also a
native and c.tizen of El Salvador, who entered the United States on or
about April 9, 1974 without inspection by an officer of the Immigration
and Naturalization Service. Both entries are in violation of section
241(a)(2) of the Immigration and Nationality Act. Each respondent

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admitted entry into the United States without inspection by an officer of
the United States Immigration and Naturalization Service.
The male respondent admitted (1) alienage (Tr. p. 10); (2) paying $225
to unidentified individuals to gain entry into the United States without
inspection (Tr. p. 11). The female alien also admitted that she was an
alien (native and citizen of El Salvador), who paid $200 to gain entry into
the United States without undergoing inspection by an officer of the
Immigration and Naturalization Service (Tr. pp. 11,13). On the basis of
the respondents' admissions, the immigration judge found the respon-
dents deportable and denied their applications for voluntary departure
in the exercise of discretion.
On appeal counsel has submitted a brief in which he contends (1) that
prior to taking any testimony, he filed a motion to suppress the evidence
so as to establish that as a result of the illegal arrest, search and seizure
by immigration officers, the Immigration and Naturalization. Service
derived information showing illegal presence of the respondents in the
United States; and (2) that the immigration judge erred in denying the
respondents' request under the Freedom of Information Act to inspect
the records to discover what basis immigration officers had to detain and
seize the respondents.
We find no merit in any of counsel's contentions.
The motion to suppress was properly denied by the immigration
judge. One who raises the claim questioning the legality of the evidence
must come forward with proof establishing a prima facie case before the
Service will be called on to assume the burden of justifying the manner
in which it obtained the evidence, Matter of Tang, 18 I. & N. Dee. 691
(BIA 1971); Matter of Wong, 13 I. & N. Dec. 820 (BIA 1971).
Under section 287(a)(1) of the Act, an officer of the Immigration
Service is empowered, without warrant, to interrogate any alien, or
person believed to be an alien, as to his right to be or remain in the
United States. Under section 287(a)(2), an officer may arrest any alien
in the United States in violation of any law or regulation regulating the
admission, exclusion or expulsion of an alien who is likely to escape
before a warrant could be obtained for his arrest.
The courts have recognized that the detention and apprehension of
aliens is a special law enforcement problem, Laqui v. INS, 422 F.2d 807
(C.A. -7, 1970); United States v. Monte Hernandez, 291 F. Supp. 715
(E.D. Cal. 1968). As the court stated in Montez Hernandez, supra,
—

it
. If immigration authorities were unable to question aliens as to
their right to be in this country without some independent evidence that
they were here illegally, their job would be impossible." In the instant
case from the evidence of record it is concluded that the immigration
officer was justified in interrogating the male respondent as to his status
and in taking the male respondent into custody.
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The record in this case does not disclose any evidence used against the
respondents to establish deportability which was obtained as a result of
any search or through arrest. Instead, the respondents argue, in effect,
that their physical presence is the evidence to be suppressed as that
presence was obtained illegally.
The general principle that the illegality of an arrest does not destroy a
later valid proceeding has long been recognized by the Supreme Court
and is still a valid rule of law, Frisbie v. Collins, 342 U.S. 519 (1952);
Ker v. Illinois, 119 U.S. 421 (1886). This principle has been repeatedly
upheld by the courts, Guzman-Flores v. INS and Castellanos-Castillo
v. INS, 496 F.2d 1245 (C.A. 7, 1974); Taylor v. Alabama, 465 F.2d 376
(C.A. 5, 1972); United States v. Woodring, 446 F.2d 733 (C.A. 10, 1971);
United States v. Morris, 445 F.2d 1233 (C.A. 8, 1971); Autry v. Wiley,
440 F.2d 799 (C.A. 1, 1971); High Pine v. Montana, 439 F.2d 1093 (C. A.
9, 1971); La,Franea v. INS, 413 F.2d 686 (C.A. 2, 1969).
At the hearing the respondents admitted that they were not United
States citizens. They did not invoke the Fifth Amendment. Therefore,
under section 291 of the Act, they bore the burden of proving the time,
place and manner of their entry into the United States, Matter of
Ortega-Mojaro, 13 I. & N. Dec. 838 (BIA 1970). Since they failed to
sustain that burden, they are presumed to be in the United States in
violation of law. The Service did not rely upon any statement taken or
any evidence seized at the time of the respondents' arrest to establish
deportability. Thus, even if the arrest was illegal, this would not invali-
date the subsequent deportation proceedings, Huerta-Cabrera v. INS,
466 F.2d 79 (C.A. 7, 1972). See also: Shing Hang Tsui v. INS, 389 F.2d
994, 995 (C.A. 7, 1968); Valeros v. INS, 387 F.2d 92 (C.A. 7, 1967); and
Bilokumsky v. Tod, 263 U.S. 149 (1323).
We reject counsel's statement on appeal that the respondents were
denied due process and a fair hearing. The respondents were given an
opportunity to offer evidence that they were legally entitled to remain
in the United States, but not one shred of evidence was proffered. The
immigration j udge's finding of deportability was established by evidence
that is clear, convincing and unequivocal. We find no abuse of discretion
in the immigration judge's denial of voluntary departure. Accordingly,
the following order will be entered.
ORDER: The appeal is dismissed.

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