LANE

Interim Decision #2064

MATTER OF LANE

In Deportation Proceedings

A-19698248

Decided by Board November 24, 1970

Admissions made by an alien to a Service officer in a preliminary interroga- tion at a Travelers Aid Society office, in a non-custodial setting, were not tainted by the absence of a warning of the type used in Miranda v. Ari- zona, 384 U.S. 436 (1966), and constitute competent evidence to support an order of deportation.

:BARGE:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2)]—Visitor- remained longer.

, N BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: David Carliner, Esquire Irving A. Appleman 425 - 13th Street, N.W. Appellate Trial Attorney Room 932 (Brief filed) Washington, D.C. 20004 (Brief filed)

Respondent appeals from the special inquiry officer's order re- iring her deportation. Counsel contends that the special inquiry leer's reliance upon respondent's admissions to Service officers fore the deportation hearing was improper because they were Kle without respondent having been advised of her right to insel and her right to refuse to answer questions. The appeal I be dismissed. ['he facts have been fully stated by the special inquiry officer. e following summary is taken from testimony of Service wit- ses, Mr. Morelli and Mr. Fell; respondent refused to testify on laim of privilege. On March 12, 1970, Mrs. Ziegler, an em- yee of the Travelers Aid Society, Richmond, Virginia, called Titcomb of the Immigration Service and informed him that a titute female of Irish nationality was in her office seeking as- ance. Mr, Titcomb advised Mr. Morelli, a Service investigator, he fact. At about 2 p.m. of the same day, Mr. Morelli accom-

Interim Decision #2064 panied by Mr. Fell, another Service official, went to the Society's office, a short distance away. The officers identified themselves to the respondent. Since she was not considered to be in custody, she was not, prior to questioning, given the warning concerning the right to representation and to remain silent, which is given to a witness who is in custody. Mr. Morelli questioned her and found out she was an alien who had been admitted from Canada on June 8, 1966, as a temporary visitor for three weeks, and that she was unlawfully in the United States since she had remained longer than she had permission to remain. Mr. Morelli had the authority to permit respondent to leave the United States without the institution of deportation proceedings. He told respondent that she would be permitted to leave voluntarily if she could ar- range for transportation to Canada; if she could not, he would take her into custody and commence deportation proceedings. Mrs. Ziegler offered to determine whether her organization would provide transportation. This would take time. Mr. Morelli, there- fore, suggested that respondent accompany him to the Service office to await the outcome of Mrs. Ziegler's efforts. Respondent, Mr. Morelli, and Mr. Fell walked to the Service office. At about 3:15 p.m., Mrs. Ziegler called with the information that her orga- nization could not pay for transportation. Mr. Morelli then ad- vised the respondent she was under arrest. He gave her a warn- ing about her rights. He took a statement from her in which she admitted alienage and the manner of her entry. He had not con- sidered respondent under arrest until he told her she was under ar- rest; however, had she attempted to leave the Immigration office before being placed under arrest, he would have attempted to re- strain her. At the deportation hearing, counsel asked that Mrs. Ziegler and Mr. Titcomb be called as witnesses. He hoped to establish that be- fore Mrs. Ziegler called the Service, she had such custody over re- spondent that respondent was actually under arrest when the Service officers arrived. Mr. Morelli testified that there had been no arrangement with Mrs. Ziegler for the detention of aliens ille- gally in the United_c3tates. Counsel's request was denied. After oral argument on the appeal, counsel submitted a letter stating that Mrs. Ziegler and other employees of the Travelers Aid Society were willing to give depositions concerning the mat- ter if proceedings were reopened. There is no indication as to the nature of the testimony. Counsel asks that the proceedings be re- opened for the taking of such testimony. The record also contains

Interim Decision #2064

the Service memorandum in opposition to the request and coun- sel's reply. The record establishes that respondent is deportable. The state- ments made at the Society's office as to alienage and the nature of her entry establish this. The interrogation there did not have to be preceded by a warning of the type used in Miranda v. Arizona, 384 U.S. 436 (1966). Such warning is required in a custodial set- ting or when the person questioned is the subject of a criminal in- vestigation. Neither of these situations existed here. There was merely an on-the-scene interrogation, reasonable in nature, rela- tively short in duration, and there was an absence of a reasonable possibility that there would be a criminal prosecution. The absence of a custodial setting before the Service officers came is clear. Respondent was never in Mrs. Ziegler's custody. The record establishes that Mrs. Ziegler did not detain respond- ent prior to the arrival of the Service officers. Moreover, since Mrs. Ziegler is a private citizen, a custodial setting requiring a Miranda warning would not have existed even if she had at- tempted to detain respondent, Yates v. United States, 384 F.2d 586, 588 (5 Cir., 1967). The absence of a custodial setting, after the Service officers came and when they first questioned respond- ent, is clear. Respondent did not testify that she had remained for the questioning at the office of the Society because of the as- sertion of custody by the Service. Mr. Morelli testified that re- spondent was not arrested at the Travelers Aid office. The Service officers did not go to Mrs. Ziegler's office to arrest respondent. They knew only that a destitute alien was there. They did not know she was illegally in the United States. Even if they found her to be illegally in the United States, they were not required to take her into custody. They could have authorized her to depart without taking her into custody, 8 CFR 242.5. They went to de- termine the facts. Thus, the absence of a Miranda warning did not taint the admissions made at the Society's office, Yam Sang Kwai v. INS, 411 F.2d 683 (D.C. Cir., 1969), cert. denied 396 U.S. 877; United States v. Cho-Po-Sun, 409 F.2d 489 (2 Cir., 1969), cert. denied 396 U.S. 864; Nason v. INS, 370 F.2d 865 (2 Cir., 1967); Amaya v. United States, 247 F.2d 947 (9 Cir., 1957), cert. denied 355 U.S. 916; United States v. Montez-Hernandez, 291 F. Supp. 712 (Cal., 1968); United States v. Mendoza-Torres, 285 F. Supp. 629 (Ariz., 1968) ; Tsimounis v. Holland, 132 F. Supp. 754 (E.D. Fa.. 1955), affirmed 228 F. 2d 907 (3 Cir., 1956); Matter of Methure, Interim Decision No. 2035 (BIA, 1970); Matter of Au, Interim Decision No. 1981 (BIA, 1969). See

Interim Decision 32064 United States v. Prudden, 424 F.2d 1021, 1028 (5 Cir., 1970); Bendelow v. United States, 418 F.2d 42 (5 Cir., 1969); Lucas v. United States, 408 F.2d 835 (9 Cir., 1969). Counsel cites United States v. Dickerson, 413 F.2d 1111 (7 Cir., 1969) , holding that Miranda warnings must be given to a tax- payer when a federal tax investigation moves from a civil into a criminal one. Dickerson turns on the distinction between a civil and a criminal investigation. The Service interrogation at the So- ciety's office was for the purpose of determining whether the re- spondent was an alien and, if so, whether she had the right to re- main in the United States. This is a civil matter. There is no showing that it ever went beyond this stage. Furthermore, Dick- erson expresses a minority rule, United States v. Brevik, 422 F.2d 449, 450 (8 Cir., 1970), cert. denied 397 U.S. 1056. The admissions made by the respondent at the Service office after she had been taken into custody were preceded by a Mi- randa warning. These admissions were also competent evidence to support the order of deportation. Therefore, even assuming some infirmity in petitioner's questioning at the Travelers Aid office, the deportation order would not be set aside, Shing Hang Tsui v. INS, 389 F.2d 994, 995 (7 Cir., 1968). The special inquiry officer properly denied the issuance of sub- poenas for Mrs. Ziegler and Mr. Titcomb. Counsel had failed to establish what he would prove by the testimony of these wit- nesses. He had not shown that they were not available. The find- ing of deportation does not rest upon the testimony of these indi- viduals. Furthermore, whether or not respondent had been detained before the Service officers arrived was not material. Counsel's request on appeal that the case be remanded for the taking of depositions from employees of the Travelers Aid So- ciety is denied. Counsel does not establish this evidence is mate- rial. In fact, he fails to show what he would prove by this testi- mony, 8 CFR 287.4. ORDER: The appeal is dismissed.