MATTER OF AU, YIM AND LAM
A-15759505, A-15759506, A-15759507
Board of Immigration Appeals
June 20, 1969
13 I. & N. Dec. 294 | Interim Decision #1981
In Dеportation Proceedings. Affirmed, see 445 F.2d 217 (C.A. D.C., 1971).
CHARGES:
Order: Act of 1952—
Act of 1952—
ON BEHALF OF RESPONDENTS:
David Carliner, Esquire
902 Warner Building
Washington, D.C. 20004
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney
The special inquiry officer ordered the respondents deported on the charge which relates to each. They appeal on the ground that the evidence to establish deportability was obtained after an illegal arrest and search. The appeals will be dismissed.
* Affirmed, see 445 F.2d 217 (C.A. D.C., 1971).
Service investigators, believing that one or more Chinese aliens illegally in the United States were employed in a restaurant located in a hotel building, decided to enter the restaurant to question the employees as to whether they were аliens illegally in the United States. They had gone to the same restaurant for the same purpose on two or three occasions in the past year. They did not have a warrant of arrest.1
About 5:30 p.m. on October 31, 1967, eight or nine Service investigators went to the hotel building. They were Burns, Podrasky, Taylor, Lamoreaux, Kelley, Stephanadis, Smith and one or two more (p. R-18). With thе permission of the hotel employee stationed there, Kelley and Lamoreaux entered the hotel by a side or rear door. Kelley remained near the door. He had a view of some hallways. He would have stopped anyone who tried to leave hurriedly. Lamoreaux, traveling through the hallways of the hotel, made his way to a restaurant rоom which had a door on a hallway. The door was open, Lamoreaux stationed himself in the hallway so that he could see into the room (pp. R-19, R-21, R-60, R-62). Burns, Podrasky and Taylor entered the restaurant by the front door. The disposition of the other investigators is not shown. The three who entered by the front door approached Park, the assistant manager, who was in charge. Burns and Podrasky identified themselves and carried on the conversation. Taylor took no part of the conversation (pp. 20-21, R-4). They were interrupted briefly when Park received a phone call. There is a conflict in the evidence as to what happened next. Park testified that Podrasky identified himself but did not ask for permission to go to the kitсhen; that while he was on the phone, Podrasky said that he was from the Immigration Service and he has to go into the restaurant and question the employees; that Podrasky went on without waiting for permission; that as soon as he had hung up the phone, he dashed after Podrasky and offered to set up a small table in the dining room, to which he would send the employeеs whom Podrasky wanted to see; that Podrasky did not answer, but asked for the direction of the kitchen; that he pointed
In any event, on the way to the kitchen, Burns stopped to talk to an employee. He saw a Chinese person, garbed in a kitchen worker outfit, running toward the front door. He ran after, stoрped him at the door, identified himself, and invited him to come to the kitchen to talk. This person is respondent, Yim Tsz Ki (pp. 21-23, R-4-R-5). As Burns and Yim were going to the kitchen, a second Chinese person, dressed like the first, headed for the front door. Burns stopped him and also invited him to come to the kitchen. This person is respondent, Lam Sai Ting (pp. R-5, R-8). On the way to the kitchen, Burns and the two emрloyees passed a room being remodeled to provide additional dining space. A door of this room led to the hallway of the hotel. Lamoreaux was standing in the hallway at the door. Lam ran for the door. Burns followed. Lamoreaux intercepted Lam. He found Lam could speak no English, but did learn that he was off a ship. He apparently determinеd at this time to take Lam into custody. All went to the locker room. There, Lam again admitted to Lamoreaux that he had jumped ship. Yim admitted to Burns that he had jumped ship. Burns considered the admission, a sufficient basis for detaining Yim (pp. 22-24, 28, R-7-R-9, R-14-R-16, R-26-R-27).
Taylor and Podrasky had gone on to the kitchen. They questioned employees there. Taylor noticed that an employee wаlked to the rear of the kitchen, where a door led to the hallway of the hotel. The employee spoke to two Chinese employees who were preparing food for their own consumption. They dropped their food and ran out through the rear exit. No inspector was stationed there. Taylor ran after them. They went in different directions. One was out of sight; he was not apprehended. Taylor caught up with the other, stopped him by taking his arm, and asked him to return to the kitchen. He did not hold him as they walked back. The chase took him past Kelley, standing off the hallway in which the chase took place. Kelley took no part in the chase. The third person is respondent, Au Yi Lau. In the kitchen, with the help of an employee, Taylor learned that Au had come
DeLucian, the kitchen supervisor, testified that when the investigators entered, he turned his back on them thinking they were part of the management staff, that suddenly he saw employees taken out to the locker room through the rear exit, that the investigator had come through the rear door, and that he had not been apрroached for permission to question the employees. He testified that he made himself understood to the respondents in broken English. Park had testified that respondents could speak no English; he made himself understood by writing Chinese characters.
The one illegal alien, known by name, who the Service thought was working in the restaurant, was not found and is still the object of sеarch (pp. R-51-R-52).
The investigators took the three respondents to the office of the Immigration Service. There, friends came to visit them (pp. 27, R-10). Fingerprints were taken (p. 12). Translators were obtained and statements taken: Kelley took Yim‘s (Ex. 2), Lamoreaux took Lam‘s (Ex. 2), Burns took Au‘s (Ex. 4) (pp. 16-17, 25-27, R-10, R-27-R-29, R-32-R-44, R-52-R-56, R-58-R-59, R-63-R-66). At the Service office, warrants of arrest were issued and served about two hours after the aliens were located (p. 14).
An investigation at the same place subsequent to the one in question, resulted in the apprehension of other aliens illegally in the United States (p. R-67).
Deportation hearings were started on November 1, 1967. At the hearings, which were consolidated, the respondents remained mute. The Service introduced the statements made by the respondents. The investigators who took the statements and an interpreter testified as to the taking of the statements and as to their belief that they represented what the aliens had stated. As to each alien, the Service introduced a seaman identity book and a seaman discharge book (Yim, Ex. R-1; Lam, Ex. R-3; Au, Ex. R-2); and crewman landing certificatеs (Yim, Ex. 4; Lam, Ex. 3; Au, Ex. 2). A certificate of vaccination was also introduced for Yim. The respective identity and discharge books contain photo-
If the evidence presented by the Service is competent, it еstablishes the respondents are deportable aliens. See Shing Hang Tsui v. INS, 389 F.2d 994 (7 Cir., 1968). The statements of the respondents alone establish that they are aliens illegally in the United States.2 Apart from the statements, the landing certificates establish alienage and the illegality of stay. The seaman‘s books establish identity of the respondents. There must be considered the presumрtion that the alien in deportation proceedings, who has failed to show the manner of his entry, is in the United States in violation of law. Au Shin Pang v. INS, 368 F.2d 637 (3 Cir., 1966) cert. denied 386 U.S. 1037.
Counsel contends the evidence presented by the Service cannot be used because it was illegally obtained since Park‘s testimony reveals that the investigators were not given permission to enter the premises to conduct a “search” and since the Service had no right to approach at least the alien in the kitchen. He contends the testimony of Park should be credited rather than the testimony of the investigators because Park is a disinterested witness, but it is in the interests of the investigators to show they were performing their duties. He also contends the Service must establish that permission was granted by evidence that is clear, convincing and unequivocal. The appellate trial attorney emphasizes that Park‘s own testimony reveals both that he consented to the investigators talking to the employees and that he did not deny the investigator the right to go to the kitchen. The appellate trial attorney also relies uрon the corroboration found in the testimony of the Service investigators.
It is undisputed that the investigators had permission to be in the restaurant. The only issue is whether they had permission to
Moreover, no respondent was approached in the kitchen. Two respondents, Yim and Lam, were approached in the restaurant—no issue is raised about Park granting the Service permission to talk to the employees there. Au was approached in the public hallway of the hotel where permission to enter, if it was neеded, was obtained when the hotel employee stationed at the door permitted the Service investigators to enter with knowledge of their employment. (See Peters v. New York, 18 N.Y.2d 238, 273 N.Y.S.2d 217, 219 N.E.2d 595, hallway in apartment house a public place.)
While we have considered the question of permission—and we believe that Service employees should ask for permission as a matter of practice—the fact is that law enfоrcement officers are not required to obtain permission to enter a public place, like a restaurant, to question people there. Amaya v. United States, 247 F.2d 947 (9 Cir., 1957) cert. denied 355 U.S. 916. See Terry v. Ohio, 392 U.S. 1, 34 (White, J., concurring); Green v. United States, 259 F.2d 180 (D.C. Cir., 1958) cert. denied 359 U.S. 917 (1959). Furthermore, the power of an immigration employee to question appears to be even broader than that possessed generally by law enforcement officers.
Any officer or emрloyee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;
Under this statute, it would appear no independent evidence of alienage is needed to apprоach a person. If independent evi-
Considering the facts of the instant case in light of the precedents we hold that it was proper to question the respondents and it was proper to arrest them. Evidence, if any, obtained as the result of the arrest was incident to a lawful arrest and was therefore competent.3 We shall develop these matters further.
It was proper to question respondents. The posting of the Servicе investigators did not constitute an arrest. Yam Sang Kwai, supra. The experienced Service investigators had reason to believe that illegal aliens were employed in a restaurant. They entered it to question the employees. They limited their questioning to whether the person was an alien and, if so, whether he was legally in the United States. These were matters within their authority. Thеy did no enter to secure evidence for criminal prosecution. No force was used to enter. No force was used to question the employees. There was no harassment of employee or of management. Interference with business was so limited that the kitchen supervisor thought, at first, that the investigators were part of the management. There was no search of any employee except those who attempted to flee. When the investigators saw persons, obviously of foreign descent, moving to make it impossible for them to be questioned, the investigators acted reasonably
The respondents were properly arrested. When the investigators determined that the respondents were aliens illegally in the United States, it was reasonable to arrest them without a warrant for, clearly, they were aliens who were likely to escape before a warrant could be obtained.
Since it was reasonable to arrest the respondents, evidence obtained as the result оf the arrest, if any was obtained, was incident to a lawful arrest and was therefore competent.
Katz v. United States, 389 U.S. 347 (1967); Wolf v. Colorado, 338 U.S. 25 (1949) (overruled, Mapp v. Ohio, 367 U.S. 643 (1961)); Gomez v. Layton, 394 F.2d 764 (D.C. Cir., 1968) cited by counsel are inapposite. Katz concerns eavesdropping by electronic means. It did not involve the right to question a person. Wolf concerns evidence admittedly seized illegally. We find no illegality in the obtaining of evidence here. Gomez merely held that one claiming an unconstitutional dеprivation of liberty of movement was entitled to a judicial hearing on his claim.
ORDER: The appeals are dismissed.