PANG

Interim Decision #1552 Mlairat Or PANG - In Deportation Proceedings A.:-.15169631 Decided by Boarrd February 8, 1966 (1) Where respondent refused to testify at the reopened hearing conducted for the purpose of establishing an alternate place of deportation, acceptance into evidence by the special inquiry officer' at the reopened proceedings of information from respadent's Government "of Hong Kong Seaman's Discharge Book was not in error and such information is admissible in evidence.' (2) Since respondent, an illegally landed alien, has offered nothing to controvert the evidence presented by the Government as to his citizenship and place of prior residence abroad and he•has re,.mained mute in the two hearings that have been accorded him, he has bad adequate opportunity to be heard and his request for farther hearing is denied as frivolous. We dismissed respondent's appeal on June 9, 1965, after full consideration bf the entire record. Matter of Pang, Int. Dec. No. 1479. He was ordered deported to the Republic, of China on Formosa, but that'governmont refuged' to accept respondent.. Therefore, on Septenil* 27, 1965, we 'directed that the hearing be reopened in order that-the record . might include additional evidence concern/tit an alternate place of deportation. At the reopened hearing the alien confined to refuse to testify:. The special- inquiry officer now directs that the respondent be deported to Hong Kong. Counsel again appeals, but be requests no- folio_ of relief, except that "the matter be sent book for further testimony at the hearing level." The appeal will be dismissed. We will not restate the facts set forth in our previous decision, but that decision is incorporated herewith. The record now contains two pieces of evidence supporting the order et the special inquiry officer to deport respondent to Hong Song. Respondent's affidavit, Exhibit 2, dated November 6, 1964, given to an investigator for the Immigration Service, was in the record when the case was here in •Reaffirmed, 868 F.2d 637 . [489] Interim Deiciaisil. #1552 June 1965. Respondent told the investigator that he is married to a. Chinese woinan living in Hong Kong, that they have two Children, ages 5 and 7, that he is a citizen of China, born at Kwantung, China, that he last arrived in the United States at New York on September 4, 1962, on the SS "Clydefield" as a member of the crew, was refused permission to go ashore by the immigration officers, but went ashorein violation of that order. We, found in cur previous decision over the objections of counsel thit this' ''sttiteMkit was admissible in evidence under Title 8, Code of Federal Regulations, section 242.14(c), and under judicial decisions and priOr deciaiOns of this Board. At the first hearing the special inquiry._ officer refused to accept the Service offer, of the respondent's Government of Hong Kong Seaman's Discharge Book- No 2848.. -Wet:implied: that the offer was proper, citing Peirers v. kw-if, 159 F. Supp. 81 (D.O.N.Y., 195R), wherein 'this Board had disregarded a passport offered -under similar circiunitances, be the court commented' that the 'passport was properly introduced evidence.' ,At 'ffie reopened hearing the trial attorney again offered this document or information from it. The special inquiry officersccepted the offer. He did not.place the book in evidence, but read the information into the record (R-4). The book shows-the name of Pang Chin, his rating as a sailor, his date of birth as 2-1.0-1930 and the date of issue as 7-12-54. The special inquiry officer stated Lat it contains "a good. likeness" of respondent. It shows respondent's place of birth as Kwangtung, China, that he was .exigaged on .June 24,19614 at Hong Song on the SS "Ban * dustart"' and discharged April 12, 1962 at Hong Kong, that he was - signed, on the SS. "Olydefield" at Hong Kong on June 13, 1962, and there-is no notation Concerning discharge. Exhibit2 also states that' respondent. CATIIS to the United. States, on. the SS "Hindustan" in • ■ 1961 or 1962 and was refused shore leave rand that he arrived at New York on September 4, 1962, ort 'the SS. "Olydefield". The fact that As book contains no,', notation that he was: discharged from the `Clydefield" is .consisten t his statement that he arrived in New fork on that ship on September .4, 1962, and did not depart with Lis vessel.* In. his brief ,aseorspanying the appeal counsel again 'challenges the ,reeeediog, stating that the rules of evidence have been ignored, that Exo "resident'alien".is 'entitled to a fair hearing, that the admission ito evidence of information from the respondent's Hong Kong seatan's discharge bocik - i.§ eirbr,lhat there was failure to authehticate Us document and that no foundation as to the document itself was ' Counsel contends that the information contained in the sea-. an's book was hearsay, and that withotit the book there is nothing [490] Interim Decision #1552 in the record to support the special inquiry officer's order of deportation to Hong Kong. The special inquiry officer overruled counsel's objections. On advice of counsel respondent elected to remain mute at the reopened hearing, as he had at the original hearing. Counsel contends that respondent should be endowed with the same privilges and im- 'inunities as the defendant in a criminal proceeding who is shielded with the cloak of innocence and cannot be compelled to give testimony against himself. This contention was discussed and dismisaed by Bilokunvsky v. Tod, 263 U.S. 149 , wherein Mr. Justice Brandeii stated: Silence is often evidence of the most persuasive character . . . there is no rule of law which prohibits officers charged with the administration of the Immigration law from drawing' an Inference from the Silence of one who lo called upon to speak ... A person arrested on the preliminary warrant is not protected by a presumption of innocence iri a criminal case. These is no provision Which forbids drawing an adverse inference from the fact of standing mute. _• • So far as we are aware, the rule is still that elucidated in Bilokurnsky v. Tod. United Etates v. Sahli, 216 F.2d 33 , 39 (7th Cir., 1954), and Catean o -v. Shaughnessy, 133 F. Supp. 211 (S.D.N.Y.,.1955), rely on Bilolounisky and reject the argument that a person in deportation proceedings should. be surrounded by the same safeguards as a person charged with crime. In Caetano the court says, "Sufficient - answer to this position is that the courts lave uniformly held to the contrary", citing cases. In Hatter of Psarelis, 7 I. & N. Dec. 133 , wherein the Board held that-the alien's preliminary sworn statement may. be relied upon as evidence of deportabili,ty, there was no other evidence but the inference drawn from the alien's silence: In Matter of Rupino Soares, - 7 I. & N. Dec. 271 , and Matter of Darner, 5 I. & N. Dec. 738 , we also held that refusal to testify without legal justification concerning matter of alienage, time and place -of entry, and lack of proper documents, justifies the drawing of unfavorable inferences. We are not left in - the instant case to draw inferences from respondent's silence. There is sufficient evidence to support a finding that he is an alien, illegally in the United States, and deportable as such. The information taken from the seaman's book was admissible for the purposes for which it was used here. We have no.doubt that one of its purposes is to establish the identity of its owner. In Abel v. Ignited States, 362 U.S. 217 (S.Q., March 28, 1960), Justice Frankfurter discussed the legality of the seizure and use of documents belonging to an alien under deportation proceedings— forged birth certificate, a certificate of vaccination, a bank book, etc., [401] Interim Decision #1552 all in false names, and said, "We can see no rational basis for excluding these relevant items from trial." Dote v. United States, 223 F.2d 309, 310 (D.C. Cir., 1955), found that a series of evidentiary documents presented by the Government were admissible; among them was a birth register from Italy, a manifest showing voyages to this country of persons with names of appellant's family members, New York State census records including the family, including one Ninth the name of defendant. The court stated. (per Judge Prettyman) that this documentary evidence, if believed, made the conclusion as to respondent's alienage inescapable. This alien landed illegally in the United States. He offered nothing to controvert the evidence presented by the Government as to his citizenship and his place of prior residence abroad. Counsol'a roquest that this ease be returned for further hearing is frivolous when respondent has declined to testify in the two hearings that have been accorded him. He had adequate opportunity to be heard. The appeal will be dismissed. . ORDER: It is ordered that the appeal be and is hereby dismissed.