Matter of Ortega-Mojaro (Board decision, October 2, 1970)

Plain-English summary

An immigration officer questioned a passenger in a car in Los Angeles County about his right to remain in the United States. In deportation proceedings, the passenger admitted he was not a U.S. citizen but declined to give the time, place, or manner of his entry. The Board held that he had not met his burden to show lawful entry and that evidence apart from the arresting officer's account established deportability for entry without inspection. It also held that the officer had authority to question him without a warrant and to apprehend him within the regulatory distance from a border. The Board dismissed his appeal and upheld the denial of voluntary departure because he declined to testify about his eligibility for that relief.

Decision snapshot

• Cited authorities: Former INA §§ 241(a)(2), 287, and 291; 8 C.F.R. § 287.1(a).
• Outcome: Deportability and denial of voluntary departure affirmed; appeal dismissed.
• Key point: The respondent's failure to establish when and how he entered supported the entry-without-inspection charge, independently of the challenged questioning.

Full text (BIA official public release)

Interim Decision #2114

MATTER OF ORTEGA-MOJARO

In Deportation Proceedings
A-19107467
Decided by Board October 2, 1970
Under the authority of section 287, Immigration and Nationality Act, the immigration officer had the power without a warrant to detain and inter- rogate respondent on April 8, 1970, when he was a passenger in an auto- mobile in Los Angeles County, California, as to his right to be or remain in the United States. Further, under 8 CFR 287.1(a) (1) and (2), the im- migration officer had authority to apprehend respondent within a "reason- able distance" of an external border of the United States, which is defined by those regulations as 100 air miles from a border.*

CHARGE
Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Entry without inspection.
ON BEHALF OF RESPONDENT: David C. Marcus, Esquire 215 West Fifth Street
Los Angeles, California 90013

The respondent appeals the decision of the special inquiry officer finding him deportable as charged, denying his application for voluntary departure and ordering that he be deported to Mex- ico on the charge contained in the order to show cause. The ap- peal will be dismissed. The respondent is a 45-year-old male alien, who testified at the deportation hearing that he was not a citizen or national of the United States but was a native and citizen of Mexico. The re- spondent, on advice of counsel, refused to furnish any informa- tion at the hearing as to the time, place and manner of his entry into the United States. He did request the privilege of voluntary departure, but this was properly denied by the special inquiry of- ficer because the respondent refused to testify as to his eligibility for such relief.

• Affirmed, Ortega-Mojaro v. INS, No. 26580, C.A. 9, May 11, 1971; cert.
  den., No. 71-5014, Oct. 19, 1971.

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                                    Interim Decision #2114
  

  The respondent admitted, as alleged in the order to show cause, that he was not a United States citizen. Therefore, under section 291 of the Immigration and Nationality Act, 8 U.S.C. 1361, the burden of proof is upon him to show the time, place and manner of his entry into the United States. Since he has failed to do this he is deportable under section 241 (a) (2) of the Act as an alien who entered without inspection. Counsel contends that the respondent's apprehension in the United States was without probable cause and, therefore, the order to show cause was invalid. In answer to this, we simply point out that the respondent's deportability has been established by evidence that is clear, unequivocal and convincing aside from any evidence adduced by the immigration officer who appre- hended the respondent on April 8, 1970 when he was a passenger in an automobile in Los Angeles County, California. Referring to the respondent's arrest, we find that the officer was acting within the authority granted to him by section 287 of the Immigration and Nationality Act in that he had the power without a warrant to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States. The officer further had the right under 8 CFR 287.1 (a) (1) and (2) to apprehend the respondent within a reasonable distance of an external border of the United States which, under said regulation, is defined as 100 air miles from a border. The immigration officer's power under said section 287 to detain a suspected alien for interrogation has been fully discussed and defined in United States v. Miranda, 426 F.2d 283 (9 Cir., 1970) and Yam Sang Kwai v. INS, 411 F.2d 683 (D.C. Cir., 1969), cert. denied 396 U.S. 877. Counsel's statement in the appeal that the respondent was de- nied a fair and impartial hearing is totally without foundation. He was given every opportunity to offer evidence that he was le- gally entitled to enter and remain in the United States, but not one shred of evidence in this respect was proffered. Accordingly, the appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed.

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