RAMIREZ-SANCHEZ

Interim Decision #2820

MATTER OF Ramirez-SANcHEz

In Deportation Proceedings

A-230074'72
Decided by Board August 25, 1980

(1) The decision to institute deportation proceedings involves the exercise of
prosecutorial discretion and is one which neither the immigration judge nor this
Board reviews.
(2) Once deportation proceedings are commenced, the immigration judge must find the
respondent deportable if the evidence sustains the charge.
(3) Where the name on Service records is identical to the respondent's name, in the
absence of a denial by the respondent that those documents relate to him, we may
infer that those records do pertain to him.
(4) Counsel's comments in support of a motion to suppreao are not evidence.
(5) Where Forms 1-274 (Request for Return to Mexico) advised the respondent of his
right to counsel and to a deportation hearing, there was substantial compliance with
8 C.F.R. 287.3 despite the failure of the record to indicate that the respondent was
advised that any statement he made could be used against him in a subsequent
proceeding.
(6) Where there was substantial compliance with 8 C.F.R. 287.3, in the absence of any
claim of any right to remain in the United States, there was no prejudice to the
respondent from the admission into evidence from Service files of Forms 1-274 reflect-
ing that the respondent had twice previously requested and received voluntary
departure_
(7) Where copies of Forms 1 - 274 offered into evidence were properly certified by the
District Director pursuant to 8 C.F.R. 103.7(dX2) and 287.6, and the respondent did not
challenge the authenticity or accuracy of those documents, the immigration judge's
refusal to require the Service to produce for cross-examination the agents who
completed the forms was proper.
(8) The facts that the respondent twice requested and accepted voluntary departure and
that, even with the assistance of counsel, he has not alleged any right to remain in the
United States constitute persuasive evidence of alienage.
CHARGE;
Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)1—Entry without inspection
ON BrHAr 5, or RESPONDENT: Kenneth A. Leshen, Esquire
5228 Whittier Boulevard
Los Angelce, California 90022
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
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Interim Decision #2820
In a decision dated November 17, 1978, an immigration judge found
the respondent deportable under section 241(a)(2) of the Immigration
and Nationality Act, 8 U.S.C. 1251(a)(2), for having entered the United
States without inspection. The immigration judge denied voluntary
departure and ordered the respondent deported. The respondent has
appealed. The appeal will be dismissed.
The respondent is a married male approximately 23 years of age,
allegedly a native and citizen of Mexico. A written argument in sup-
port of a motion to suppress contained in the record reflects that the
respondent was arrested by Service officers on May 17, 1978, at the
Sbicca Shoe Factory in South El Monte, California.
At the hearing, the respondent testified that his name is Mario
Ramirez-Sanchez. His counsel indicated that the respondent is the
person named in the Order to Show Cause. The respondent then
invoked his rights against self-incrimination under the Fifth Amend-
ment and refused to answer further questions regarding deportability.
To establish deportabiIity, the Service introduced two sets of docu-
ments from Service File No. A23 007 472 pertaining to one Mario
Ramirez-Sanchez. Each set of documents included Forms 1-213
(Record of Deportable Alien), 1-274 (Request for Return to Mexico),
and WR-424. These sets of documents which were prepared on March 3,
1977, and September 9, 1977, respectively, indicate, inter alit; that
Mario Ramirez-Sanchez twice entered the United States without in-
spection by paying a smuggler, and that in both instances he requested
and was allowed voluntarily to return to Mexico. Both Forms 1 213 -

show Sbicca, El Monte, California (the respondent's most recent em-
ployer) as the last or current employer. The respondent refused to
identify the signatures on the Forms 1-274, but did not deny that he
signed those, documents. The immigration judge found that these
documents established the respondent's deportability by clear, con-
vincing, and unequivocal evidence.
On appeal, the respondent contends that the Order to Show Cause
was facially insufficient to require him to answer it, that the docu-
mentary evidence introduced at the hearing should have been sup-
pressed or at least that he should have been granted a separate hearing
on his motion to suppress during which he could have testified without
his testimony being considered against him on the issue of deportabil-
ity, and that he was denied the right to cross-examine the agents who
prepared the documents admitted into evidence against him.' His
' The respondent devoted several pages of his, brief on appeal to the question whether
his apprehension by Service agents at his place of employment was legally sufficient.
This issue was not raised before the immigration judge and.the facts of the arrest are not
set forth in the record. Moreover, no evidence seized in connection with the respondent's
arrest was offered into evidence at the hearing It is well established that an illegal

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 Interim Decision #2820
contentions were preserved for appeal by appropriate objections
below. '
The respondent's challenge to the Order to Show Cause is in essence
a contention that deportation proceedings were improperly instituted.
Every proceeding to determine the deportability of an alien in the
United States is commenced by the issuance of an Order to Show
Cause. 8 C.F.R. 2421. The decision to institute deportation proceedings
involves the exercise of prosecutorial discretion and is one which
neither the immigration judge nor this Board reviews. Matter of
Morin, 16 I&N Dec. 581 (BIA 1978); Matter of Geronimo, 13 I&N Dec.
680 (BIA 1971). Once deportation proceedings are commenced, the
immigration judge must order deportation if the evidence supports the
charge. Guan Chow Tok v. INS, 538 F.2d 36 (2 Cir. 1976). Thus, the
question is whether the evidence submitted established deportability
and not whether the Order to Show Cause should have been issued.
To be admissible in deportation proceedings, evidence must be rele-
vant and probative and its use must not be fundamentally unfair.
Hoonsilapa. v. INS, supra; Marlowe v. INS, 457 F.2d 1314 (9 Cir. 1972);
Matter of Toro, Interim Decision 2784 (BIA 1980). The use of admis-
sions obtained" from a respondent involuntarily to establish deporta-
bility is fundamentally unfair. Matter of Garcia, Interim Decision 2778
(BIA 1980). An objection to the admissibility of a statement on the
ground that it was involuntarily obtained must be supported by
specific and detailed statements based on personal knowledge or other
evidence, and a prima facie case must be shown before the Service is
required to justify the manner in which the statement was obtained.
Matter of Garcia, supra; cf. Matter of Rojas-Flores, 15 I&N Dec. 722
(BIA 1976); Matter of Wong, 13 I&N Dec. 820 (ETA 1971); Matter of
Tang, 13 I&N Dec. 691 (BIA 1971).
The respondent's motion to suppress the evidence offered by the
Service was insufficient and properly denied. There is no evidence that
the prior statements of Mario Ramirez-Sanchez were- made in-
voluntarily. The respondent's offer of proof in support of his motion is
a mixed legal and factual declaration by counsel, not based on counsel's
personal knowledge and never corroborated personally by the respond-
ent. The respondent stood mute at the hearing, refusing to testify on
the issue of deportability on the ground that his answers might in-
criminate him. In a brief to the immigration judge, his counsel argued
arrest alone does not invalidate subsequent deportation proceedings otherwise legally
sufficient. U.S. ex. rel. Bilolcurnsky v. Tod, 263 U.S. 149 (1923); Medina-Sandoval v. INS,
524 F.2d 658 (9 Cir. 1975) is also settled that the respondent's identity is not
suppressible. See Smithy. INS, 585 F.2d 600 (3 Cir. 1978); Ho onsilapa v. INS, 575 F.2d 735
(9 Cir. 1978), Wong Chung Che v. INS, 565 F.2d 166 (1 Cir. 1977); Kati* v. INS, 562 F.2d
866 (2 Cir. 1977); Guzman-Flores v. INS, 496 F.2d 1245 (7 Cir. 1974).

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Interim Decision #2820
that if the respondent were allowed to testify without his testimony
being considered against him, the respondent would testify that at the
times the statements in question were taken, he was detained in the
custody of Service agents, he was nervous and fearful, and that the
agents misrepresented if not suppressed his rights to counsel and to a
hearing.
Counsel's arguments are not evidence and even if they were, they
would not constitute a prima faeie showing that the statements were
involuntarily given. The statement lacks factual details from which we
could conclude that there may have been coercion or duress. There is
no allegation of physical abuse, hours of interrogation, denial of food
or drink, threats or promises, or interference with any attempt by the
respondent to exercise his rights. Compare Matter of Garcia, supra.
The record does not reflect that the respondent was advised that any
statement that he made could be used in a subsequent proceeding.
However, we find substantial compliances with 8 C.F.R. 287.3 in that
both Forms 1-274 advised the respondent, in both English and Spanish,
of his right to consult a lawyer and his right to ask for a hearing to
determine his right to remain in the. United States. Despite these
warnings, the respondent acknowledged his alienage and requested
voluntary departure. As the respondent, now with assistance of coun-
sel, has offered no evidence or even an allegation of any right to remain
in the United States, we infer that none existed at the time of his
requests for voluntary departure. Under these circumstances we find
no prejudice to the respondent (Matter of Garcia-Flores, supra) and
that use of the documents described above is fundamentally fair?
As the names on the documents from the Service's files and the
respondent's name are identical and the respondent has not denied
that the documents pertain to him or that the information contained
in those documents is true, they are clearly relevant and clearly
probative of alienage. U.S. v. Rebon-Delgado, 467 F.2d 11 (9 Cir. 1972);
Matter of Lepva, 16 I&N Dec. 118 (BIA 1977); Matter of14,15 I&N Dec.
514 (BIA 1975); Matter of Cheung,13 1&N Dec. 794 (BIA 1971). Further,
aside from the verbal admissions made by the respondent, the facts
that he twice requested and accepted voluntary departure to Mexico
and that, even with the assistance of counsel, he has not alleged any
2 The immigration judge's. refusal to require the Service to produce for cross-examina-
tion the agents who recorded the respondent's statements was not error. The copies of
those documents which were admitted were properly certified as official records of the
Service by the District Director pursuant to 8 C.F.R. 287.6. A District Director is
authorized by 8 C.F.R. 103.7(d)(2) to certify copies of files, documents, and records in the
custody of his office. As the respondent did not challenge the authenticity or accuracy of
those documents, no further authentication was required. Compare Matter of Exantus
and Pierre, 16 I&N Dec. 382 (BIA 1977).

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 Interim Decision #2820

right to remain in the United. States constitute persuasive evidence of
alienage. The respondent has offered no evidence to establish the time
and manner of his entry into the United States as required by section
291 of the Act.
We find the evidence of deportability to be clear, convincing, and
unequivocal. See Woodby v. INS, 385 U.S. 276 (1966). Accordingly, the
appeal will be dismissed.
ORDERS The appeal is dismissed.

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