GARCIA

Interim Decision #2778

MATTER OF GARCIA

In Deportation Proceedings

A-22290411

Decided by Board January 16, 1980

(1) Respondent who testified that he made admission of alienage only after being led to
believe by Service officers that his deportation was inevitable, that he had no rights
whatsoever, that he could not communicate with his counsel, and that he could be
detained without explanation of why he was in custody, came forward with a prima
fade showing that this admissions were involuntarily given.
(2) w here Service presents no contrary evidence after a respondent mares a prima fade
showing that his admissions were involuntarily made and where only those admis-
sions support finding of deportability, the proceedings will be terminated.

Order Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection
ON BEHALF OF RESPONDENT: ON BEHALF OF SER'VICM
Lawrence Kleinman, Esquire Charles L Stevenson
519 S. W. Third, Suite 418 Acting Trial Attorney
Portland, Oregon 97204
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent appeals from a decision of the immigration Judge
dated September 14, 1977, finding him deportable as charged, but
granting him the privilege of voluntary departure. The appeal will be
sustained and the proceedings terminated.
The respondent is a 20-year-old native and citizen of Mexico. He was
apprehended at a farm in Oregon in August 1977. On August 17, 1977,
he signed a Form 1-274 ("Request for Return to Mexico") which
reflected that he was a citizen of Mexico illegally in the United States
and that he wished to voluntarily depart to that country. After con-
sulting with an attorney that same day, however, the respondent
advised the Service that he desired to have a hearing to determine his
deportability. An Order to Show Cause was then issued charging him
with being deportable under section 241(a)(2) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(2), as an alien who entered the United
States without inspection.
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At a deportation hearing held in September 1977, the respondent,
through counsel, objected to the admission into evidence of the Form I-
274 and a Form 1-213 ("Record of Deportable Alien"), which also
reflected that on August 17, 1979, he had conceded his alienage and
entry into the United States without inspection. It was alleged that his
admissions reflected in those two documents were a direct result of the
respondent's illegal arrest, that they were made only after the Service
officers involved in the case had failed to advise the respondent of his
rights as required under the Constitution and governing Service regu-
lations, and that the admissions were coerced and involuntary.
The respondent testified at the hearing in support of the suppression
motion. He stated that he was arrested on a farm on August 16, 1977.
He testified that after his arrest he was handcuffed and taken to his
home where he was told to gather his belongings because he was going
to be deported to Mexico. While at his home, he saw his employer and
asked him to call his attorney. The respondent testified that he had his
attorney's telephohe number written in ink on his arm, but while he
was showing it to his employer an immigration officer grabbed his arm
and rubbed the number off.
The respondent further stated that on being taken to the District
Office he was placed in detention, was not told why he had been
arrested, was not advised that he had a right to consult with a lawyer,
and was not told of his right to have a hearing before being deported.
See 8 C.F.R. 287.3. He stated that his numerous requests to call his
attorney were ignored and that he finally made his admissions and
requested prehearing voluntary departure only after having "lost
hope" of being able to speak with her.
After the respondent testified, his counsel offered to call a second
witness to corroborate his story. The immigration judge advised coun-
sel that another witness would not be permitted unless the Service
contested the respondent's testimony "in any way." He stated that his
findings of fact would be based on that testimony unless challenged.
The . Service then offered the Form 1-213 and Form 1-274 into
evidence without calling either of the arresting officers to testify. The
immigration judge admitted the documents into evidence after deny-
ing the suppression motion and declining to accept the respondent's
brief on this matter. He advised the respondent that he had "the right
to a brief on appeal if [his decision was] adverse to his client."' The
immigration judge then found the respondent deportable as charged
based on the two documents. He apparently adopted the respondent's

' The refusal to accept the brief was error. Moreover, where a basis to refuse admission
of a brief arises (no proper basis was stated here), it should be appended to the record as
an appellate exhibit.

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testimony as his own findings of fact, but found no basis to conclude
either that the respondent's arrest was unlawful or that his admis-
sions had been involuntarily given.
We have held that the Fourth Amendment exclusionary rule does
not apply in civil deportation proceedings. See Matter of Scouloval,
Interim Decision 2725 (BIA 1979). Even were that not the case, we
would find that this respondent had not come forward with a prima
facie showing that his arrest was unlawful. See Matter of Tang, 18 MN
Dec. 691 (BIA 1971).
The respondent, however, did present a prima fade case that the
admissions reflected on the Form 1 213 and the Form 1-273 (the only
-

documents evidencing his deportability) were involuntarily given. His
testimony, which was adopted by the immigration judge as his state-
ment of facts, reflected that, after his arrest, he was led to believe that
his return to Mexico was inevitable, that he had no rights whatsoever,
that he could not communicate with his attorney (his attempts to do so
being actively interfered with), and that he could be detained without
explanation of why he was in custody. His uncontradicted testimony
was that he admitted his alienage to the officers in question only after
a significant period in custody had elapsed, after his requests to
contact his attorney were repeatedly rebuffed, and after he had given
up all hope of speaking with her. On this record, where the Service has
not come forward with any contrary evidence, we are satisfied that the
respondent's admissions which underlie the finding of deportability
were involuntarily made and that the requirements of due process
warrant their exclusion from the record. See Navia-Duran v. INS, 568
F.2d 803 (1 Cir. 1977); Bong nun Choy v. Barber, 279 F.2d 642 (9 Cir.
1960). As this was the sole evidence supporting the finding of de-
portability, that finding will be reversed and the proceedings ordered
terminated.
ORDER: The appeal is sustained and the deportation proceedings
are terminated.

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