CASTRO

Interim Decision #2547

MATTER OF CASTRO

In Deportation Proceedings

A-20980487

Decided by Board December 28, 1976
(1)Admission by respondent at deportation hearing that he was not a citizen or national of
the United States, and was a native and citizen of Mexico, is sufficient to establish
alienage and respondent then has the burden to show time, place, and manner of entry
into the United States as required by section 291 of the Immigration and Nationality
Act, and prove his right to be in the United States. Failure to do so establishes
deportability by clear, convincing, and unequivocal evidence.
(2) Once deportability is established by sufficient evidence at hearing, any defect in the
arrest procedure is of no consequence in the deportation proceedings.
(3) While 8 C.F.R. 242.1(b), and 8 C.F.R. 242.13 require that respondent must be notified of
adjournments or continuances after the hearing commences, such notice need not
necessarily be served as provided in 8 C.F.R. 103.5(a). While a written notice might be
helpful for record purposes, verbal noti#ieationto respondent's counsel present at hearing
which gives the necessary details concerning the adjournment to the parties is sufficient
to comply with due process requirements and those of 8 C.F.R. 242.1(b), 8 C. F. R. 242. 13,
and 8 C.F.R. 292.5(a).
CHARGE:

Order: Act of 1952—Section 241(a)(2) {8 U.S.C. 1251(a)(2)] — Entered without inspec-
tion
ON BEHA.12, us RESPONDENT. Gary- II. Manulldn, Esquire
1441 Wright Street
Los Angeles, California 90015
BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

The respondent appeals from an immigration judge's decision dated
July 15, 1975. The immigration judge found the respondent deportable
as charged, granted him 31 days voluntary departure, and entered an
alternate order providing for the respondent's deportation to Mexico.
The appeal will be dismissed.
Counsel for the respondent attacks the immigration judge's decision,
basically, on the grounds that the evidence submitted by the Service to
establish deportability should have been suppressed, and that the re-
spondent was denied due process of law by the alleged defective notice

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of the July 15, 1975, hearing. The legality of the evidence submitted by
the Service need not be discussed since the deportability of the respon-
dent is established by his admissions at the June 2, 1975, hearing. The
respondent's contention that due process was denied is rejected.
At the June 2, 1975, hearing, the respondent, assisted by his counsel,
admitted that he is not a citizen or national of the United States and that
he is a native and citizen of Mexico. These admissions establish alienage.
Once alienage is established, it is the respondent's burden to show the
time, place, and manner of his entry. See section 291 of the Immigration
and Nationality Act. If the alien fails to establish his right to be in the
United States, his deportability is established clearly, convincingly, and
unequivocally. Matter of Fereira, Interim Decision 2251 (BIA 1973);
Matter of Wong, 13 I. & N. Dec. 820 (BIA 1971); Matter of Tang, 13 I. &
N. Dee. 691 (BIA 1971). See Tricts-Hernandez v. INS, 528 F.2d 366 (9
Cir. 1975). Since deportability has been established by the respondent's
own admissions at the hearing where he was represented by counsel, it
is unnecessary to discuss the legality of the other evidence in the record.
We should mention that it is well settled that if deportability is estab-
lished by sufficient evidence at the hearing, any defect in the arrest
procedure is of no consequence in the deportation proceedings. U.S. ex
rel. Bilokumsky v. Tod, 263 U.S. 149 (1923); La Franca v. INS, 413
F.2d 686 (2 Cir. 1969); Vlissidis v. Anadell, 262 F.2d 398 (7 Cir. 1959).
See Matter of Davila, Interim Decision 2521 (BIA August 23, 1976);
Matter of Rojas, Interim Decision 2444 (BIA 1975).
We also hold that counsel for the respondent was properly informed of
the July 15, 1975, continuance. 8 C.F.R. 292.5(a), which counsel cites on
appeal in support of his argument, requires that when a person is
represented by an attorney, any required notice must be served on the
attorney. However, although the respondent must be apprised of ad-
journments or continuances, the notification of adjournments or con-
tinuances required by 8 C.F.R. 242.1(b) or 8 C.F.R. 242.13 after the
hearing commences before the immigration judge is not the kind of
notice that must necessarily be served in any of the manners specified in
8 C.F.R. 103.5(a). Our interpretation of what due process and 8 C.F.R.
242.13 require is that once the hearing commences, the immigration
juidge can adjourn the hearing, when in his sound discretion such an
adjournment is required, informing the parties so as to give them a
reasonable opportunity to be present. Cf. Matter of Marallag, 13 I. &
N. Dec. 775 (BIA 1971). Of course ; when such information is not given
during the hearing, usually that notification will be effected using one of
the means specified in 8 C.F.R. 103.5(a). While a written communication
which will avoid misunderstandings and preserve evidence of the action
taken is preferable, a verbal communication which gives the necessary
details concerning the adjournment to the parties is equally effective.

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In the case at hand, the immigration judge stated at the July 15, 1975,
hearing that he had verbally informed counsel for the respondent of the
new date for the continuation of the hearing. The respondent was present
on that date. Counsel for the respondent does not deny on appeal having
been told orally of the new date. The respondent did not ask for a
continuance at the continued hearing. The respondent was given the
only discretionary relief to which he was entitled, voluntary departure.
The respondent's deportability was sufficiently established by the evi-
dence produced on June 2, 1975, when he was represented by counsel.
Under these circumstances, we find there was no prejudice to the
respondent in the proceedings below. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily
within 31 days from the date of this order or any extension beyond that
time as may be granted by the District Director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
i^runigr ation judge's order.

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