0400/57668
Decided by Board February 23, 1956
Evidence — Preliminary sworn statement — Need not be identified to establish deportability under section 241 (a) (1), Immigration and Nationality Act, where alien stands mute.
Where an alien charged with deportability under section 241 (a) (1) of the Immigration and Nationality Act admits his name and that he is the subject of the warrant of arrest entered into evidence at the deportation hearing then stands mute upon advice of counsel claiming immunity under the Fifth Amendment to the Constitution of the United States, his preliminary sworn statement may be relied upon as evidence of deportability and need not be identified by the officer to whom the statement was made although it represents the sole evidence of deportability other than the inference to be drawn from the alien's silence.
DEPORTABLE: Act of 1952 — No immigrant visa or document in lieu thereof.
BEFORE THE BOARD
Discussion: A motion is before us, submitted by the Acting Assistant Commissioner of the Examinations Division, Immigration and Naturalization Service, pursuant to 8 CFR 6.2, to reconsider and withdraw an order entered by this Board on November 25, 1955, which directed a reopening of the above-captioned proceeding. Counsel for the respondent filed exceptions to the motion and was heard in oral argument on January 19, 1956. The Service representative argued the motion in behalf of the Acting Assistant Commissioner.
The respondent herein has been afforded a hearing before a special inquiry officer to show cause why he should not be deported under section 241 (a) (1) of the Immigration and Nationality Act of 1952 as an alien who at the time of his last entry on November 4, 1953, was excludable by the law then existing, to wit, an alien not in possession of a valid unexpired immigrant visa, reentry permit or other valid document as required by section 212 (a) (20) of the same act. Respondent, during the hearing, admitted his name and that he was the subject of the warrant of arrest entered in evidence as exhibit 1. Following the aforementioned admissions, respondent, on advice of counsel, stood mute claiming immunity under the Fifth Amendment to the Constitution of the United States.
The special inquiry officer found respondent deportable on the charge stated in the warrant of arrest, relying upon a sworn statement taken from respondent on October 1, 1954, and entered into evidence over the objections of counsel as exhibit 2. The sworn statement was not identified in any manner. The Board of Immigration Appeals ordered the hearing reopened for the purpose of identifying said statement. We were of the opinion that where an alien stands mute a preliminary statement containing the sole evidence of deportability should be identified as the statement of the alien under deportation proceedings, by the officer or officers to whom the statement was made, before it is admissible as probative evidence of deportability.
The Service, in its motion, contends (1) that the preliminary statement was properly received in evidence pursuant to 8 CFR 242.54 (b) as a statement made by the respondent, (2) that the evidence of respondent's deportability was reasonable, substantial and probative as well as uncontradicted, and (3) that the respondent's appeal from the order of the special inquiry officer should have been dismissed.
The Acting Assistant Commissioner takes the position that the Immigration Service was not required by law to introduce any evidence to establish that the respondent had executed the preliminary sworn statement introduced in evidence as exhibit 2, nor to establish that the certificate of admission related to the respondent. He relies on the general rule that the identity of names raises a rebuttable presumption or inference of identity of person, or is presumptive or prima facie evidence thereof. The Acting Assistant Commissioner cites several cases in support of his position.
Smith v. United States, 92 F. (2d) 460 (C.C.A. 9, 1937); Charlie Wong v. Esola, 6 F. (2d) 828 (C.C.A. 9, 1925); Stebbins v. Duncan, 108 U.S. 32, 47 (1882); Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 111 (1927); Matter of C----, A-4888223, 5 IN Dec. 370, 373 (1953); Hyun v. Landon, 219 F. (2d) 404 (C.C.A. 9, 1955); Couto v. Shaughnessy, 123 F. Supp. 926 (S.D.N.Y., 1954); Cheng Chan Chu v. Shaughnessy, 127 F. Supp. 681 (S.D.N.Y., 1955); Caetano v. Shaughnessy, 133 F. Supp. 211 (S.D.N.Y., 1955); United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923).
Counsel, on the other hand, maintains that the cases relied upon by the Acting Assistant Commissioner are distinguishable from the case before us. He urges that the privilege claimed by respondent of the protection afforded him by the Fifth Amendment gave no ground for any inference that his failure to answer was an admission of the truth of any charge lodged against him. Counsel avers that the Government was put upon its proof and failed to exercise its burden. He refers to three prior decisions of this Board wherein we held that an unidentified preliminary statement does not meet the test set forth in section 242 (b) (4) of the Immigration and Nationality Act.
Matters of J---- C---- F----, F---- C---- F----, and J---- M----, 0400/55437, 0400/55438 and 0400/55439, respectively, decided by B.I.A. on June 30, 1954.
We agree with counsel that the majority of the cases relied upon by the Acting Assistant Commissioner are distinguishable from the case before us. However, there is one case, Caetano v. Shaughnessy ( supra, footnote 1), wherein the salient facts are identical with those of the instant case. Counsel attempts to distinguish this case by alleging "the refusal of the respondent ( Caetano) to identify a sworn statement and to testify generally was not based on the ground that the answers would tend to incriminate him" whereas the alien in the instant case made it clear that his refusal to testify was based on his constitutional right.
We find counsel in error on this point. Judge Bicks at page 212 of the Caetano opinion states: "Upon advice of counsel, he refused to answer the below noted pertinent questions concerning his status and entry, asserting as ground for such refusal that his answers might tend to incriminate him." The court further said, "The conduct of the defendant at the hearing forms a basis for an inference and such inference is evidence * * *. The hearing officer was entirely justified in inferring from (alien's) adamant refusal to testify that answers to the propounded questions would have established that (alien) obtained e4ntry as a nonimmigrant, to wit, a visitor for pleasure and that he failed to comply with the conditions of such status."
Upon reconsideration and in light of the judicial authority set forth in the case of Caetano v. Shaughnessy ( supra, footnote 1), we will withdraw our order of November 25, 1955, and enter an order dismissing the appeal.
Order: It is ordered that the motion be and the same is hereby granted; the order entered on November 25, 1955, directing a reopening of the proceeding is hereby withdrawn.
It is further ordered that the appeal filed under date of January 20, 1955, be and the same is hereby dismissed.