525 F2d 666 Avila-Gallegos v. Immigration and Naturalization Service

525 F.2d 666

Miguel AVILA-GALLEGOS, Petitioner,

No. 196, Docket 74--2647.

United States Court of Appeals,
Second Circuit.

Argued Sept. 29, 1975.
Decided Nov. 7, 1975.

William H. Oltarsh, New York City, for petitioner.

Thomas H. Belote, Sp. Asst. U.S. Atty., New York City (Paul J. Curran, U.S. Atty., for the Southern District of New York, Steven J. Glassman, Asst. U.S. Atty., of counsel), for respondent.



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On October 8, 1973, petitioner, a native of Ecuador, entered the United States from Mexico without an immigrant visa or other valid entry document. This is a petition to review an order of the Board of Immigration Appeals that he be deported.


Since petitioner himself testified before the Immigration Judge concerning the illegal manner of his entry, one might well ask, 'Why the appeal?' The answer here, as in so many other cases is an alleged violation of petitioner's constitutional rights.1 He contends that his arrest was illegal because it was without warrant or probable cause and that he failed to receive proper Miranda warnings. Arguing from this premise, he concludes that all testimony at the deportation hearing should have been suppressed and the case against him dismissed. We agree with neither the premise nor the conclusion.


The facts surrounding petitioner's apprehension are uncomplicated. INS officials, in response to a complaint from the New York State Department of Labor, called upon petitioner's employer to inquire into the employment of illegally admitted aliens. After reviewing personnel records, the officers interviewed petitioner and several of his co-workers in the presence of factory officials. During this interview, petitioner admitted that he was an alien illegally in the United States. Upon his subsequent inability to produce a passport, he was taken to the Immigration Office where Miranda warnings were given and a written statement secured. The deportation hearing followed.


Since deportation proceedings are not criminal in nature, Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 285, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), there was no necessity for Miranda warnings. Chavez-Raya v. Immigration and Naturalization Service, 519 F.2d 397 (7th Cir. 1975). In any event these warnings would not have been required prior to the time they were given because, until then, petitioner was not in custody or under any restraint. Nason v. Immigration and Naturalization Service, 370 F.2d 865, 868 (2d Cir. 1967).


Our recent decision in Ojeda-Vinales v. Immigration and Naturalization Service, 523 F.2d 286 (2d Cir. 1975), is four-square authority that petitioner's arrest was not illegal.2 Here, as in Ojeda-Vinales, the information originally received by INS justified the initiation of an investigation, and 'petitioner's own voluntary responses to the agent's questions provided the extra measure of evidence needed to establish probable cause for his arrest.' Id. at 288. Here, also, the likelihood of petitioner's escape justified his apprehension without a warrant.3


Assuming, arguendo, that petitioner's arrest was technically defective, it does not follow that the deportation proceedings were thereby rendered null and void. This argument was rejected by the Supreme Court many years ago. United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 158, 44 S.Ct. 54, 68 L.Ed. 221 (1923). We have followed Bilokumsky, as have the courts of other circuits. See La Franca v. Immigration and Naturalization Service,413 F.2d 686, 689 (2d Cir. 1969); Vlissidis v. Anadell, 262 F.2d 398 (7th Cir. 1959); Huerta-Cabrera v. Immigration and Naturalization Service, 466 F.2d 759 (7th Cir. 1972) (per curiam); Guzman-Flores v. Immigration and Naturalization Service, 496 F.2d 1245 (7th Cir. 1974).


Regardless of the legality of his arrest, since petitioner's deportation hearing testimony, standing alone, was sufficient to support the order of deportation, his petition for reversal of such order and dismissal and termination of the deportation proceedings should be denied. Medeiros v. Brownell, 99 U.S.App.D.C. 396, 240 F.2d 634 (1957) (per curiam); Shing Hang Tsui v. Immigration and Naturalization Service, 389 F.2d 994 (7th Cir. 1968) (per curiam). Cf. United States ex rel. Pantano v. Corsi, 65 F.2d 322, 323 (2d Cir. 1933).

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Petition denied.


We also note that this appeal has gained petitioner almost one year's reprieve from deportation


Petitioner was arrested under authority of 8 U.S.C. § 1357(a)(2) which provides:

Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant--. . . to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any (immigration) law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.


Prior to his arrest, petitioner admitted to the INS officers that he had been 'caught' twice in California after his illegal entry. From this, the officers could reasonably infer that he had in some way escaped and was likely to do so again. See La Franca v. Immigration and Naturalization Service, 413 F.2d 686, 689 (2d Cir. 1969)