Unpublished Disposition, 904 F.2d 40 (9th Cir. 1984)

MEMORANDUM^*** 

Hirohito Inoue petitions for review of the Board of Immigration Appeal's decision that he is deportable. The BIA found that Inoue willfully withheld from the Immigration and Naturalization Service the fact that his marriage was a sham. We deny the petition.

FACTS AND PRIOR PROCEEDINGS

In the autumn of 1983 Wayne Shinshiro arranged a marriage between two of his friends, petitioner Hirohito Inoue and Theresa Bermea. At the time, Mr. Inoue was lawfully residing in the United States as a nonimmigrant student. His visa was to expire on December 31, 1984. Ms. Bermea was an American citizen who worked as a waitress at Bob's and as a hula dancer. Shinshiro, knowing that his friend Inoue wanted a "green card" and that his friend Bermea needed some money, arranged for Inoue to pay Bermea $3000 on the condition she participate in a wedding ceremony and thereafter petition for an immigrant visa for Inoue as her "husband." The wedding took place on December 23, 1983. The parties did not contemplate a genuine marriage relationship.

Inoue was indicted on March 15, 1984 for violating 18 U.S.C. § 371, which makes it a crime to conspire to defraud the United States or its agencies. The indictment charged Inoue with conspiring to influence his immigrant status by paying for a marriage, but it did not specify that part of the conspiracy included withholding requested information from the INS at a March 8, 1984 interview. The indictment simply alleged that Inoue appeared at the interview. That interview is the crucial event in this case.

The March 8 interview was the second one that Inoue and Bermea were required to attend in order to secure for Inoue a visa reflecting immediate relative status. They had previously been interviewed on January 11. In post-marriage interviews, an INS examiner questions each spouse. If the answers to the questions are consistent, the interview phase of the visa process ends. Apparently, there were some discrepancies in the couple's responses on January 11, causing the petitioner and his "wife" to be asked to attend a second interview on March 8. The March 8 interviews produced serious discrepancies. The two told different stories regarding, among other things, how they had met, whether they had exchanged Christmas gifts, and where they had spent the previous weekend. The examiner asked Ms. Bermea several questions, then Mr. Inoue, and then again Ms. Bermea. By the end of Ms. Bermea's interview, she knew the examiner realized that she was untruthful, and she confessed. She also signed a statement detailing the conspiracy.

The examiner asked Inoue the following question: "Any statement you make must be given freely and voluntarily; are you willing to answer my questions at this time?" Inoue answered "yes."

The next day, March 9, the Service presented to Inoue an Order to Show Cause, alleging among other things:

8. On March 8, 1984 you appeared for an interview before an officer of this Service at the Honolulu District office.

9. You stated under oath, that your marriage was bona fide and not entered into for the purpose of circumventing the marriage laws.

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12. You have knowingly and wilfully failed to give full and truthful information as required by section 214.1(f), Title 8, Code of Federal Regulations.

The order to show cause informed Mr. Inoue that he was subject to deportation under Sec. 241(a) (9) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) (9). It ordered him to appear at a hearing to show why he should not be deported.

On March 15, 1984 the indictment was handed down. On May 29, 1984, Inoue pleaded guilty to the charge in district court and on July 12, 1984 the deportation hearing took place. Inoue asserted his fifth amendment privilege and refused to testify. The Service presented as evidence the transcripts of the March 8 interviews, the indictment and guilty plea, and the affidavit of Ms. Bermea. Inoue objected to the admission of the transcript on several grounds; the relevant grounds for the purposes of this appeal are that the examiner should have read him his Miranda rights and that his statements were involuntary. He objected to the admission of the judgment of conviction on the grounds that since the indictment did not allege the precise act for which he was being deported--false statements at the March 8 interview--it was irrelevant. The Immigration Judge admitted all the proffered evidence and ruled against Inoue.

Inoue appealed to the Board of Immigration Appeals, arguing that both the conviction and the interview transcript were inadmissible, and that without the interview transcript, the Service could not prove deportability by the required standard of "clear, unequivocal, and convincing evidence." Woodby v. United States, 385 U.S. 276, 286 (1966).

Inoue makes the same arguments before this court.

STANDARD OF REVIEW

We review the BIA's decision to determine if there is "reasonable, substantial, and probative evidence" to support the Board's finding that the Service met its burden of producing "clear, unequivocal and convincing evidence" of deportability to the Immigration Judge. Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989); 8 U.S.C. § 1252(b) (4).

DISCUSSION

Section 241(a) (9) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) (9), makes it a deportable offense for an alien with nonimmigrant status to "fail [ ] to comply with the conditions of such status." Section 241.1(f) of title 8 of the Code of Federal Regulations provides that " [a] condition of a nonimmigrant's admission and continued stay in the United States is the full and truthful disclosure of all information requested by the Service." The BIA found that on the evidence presented to the Immigration Judge at the July, 1984 hearing, Mr. Inoue had violated Sec. 241(a) (9). The question is whether the evidence should have been admitted.

Inoue argues that the conviction for violating 18 U.S.C. § 371 and the accompanying indictment should not have been admitted into evidence because the allegations in the order to show cause are drawn somewhat differently from the allegations in the indictment. The BIA held that the conviction and indictment were probative. The Service argues that the BIA should have gone further and found the conviction and indictment conclusive on the deportability question.

In certain circumstances, a criminal conviction and indictment alone can establish deportability conclusively. In Larios-Mendez v. INS, 597 F.2d 144, 146 (9th Cir. 1979), this court said, "By pleading guilty a defendant admits the material facts alleged in the information or complaint [.]" In that case, the facts alleged in the criminal complaint mirrored those alleged in the order to show cause. In this case, however, the order to show cause was drafted more narrowly than the indictment. The order to show cause focuses its charge of withholding information exclusively on Inoue's lying under oath at the March 8 interview. The indictment, on the other hand, alleges only that Inoue "appeared" at the March 8 interview.

Although we believe that the indictment was not conclusive evidence that Inoue lied at the March 8 interview, we agree with the Board that the indictment and conviction together certainly provided relevant evidence concerning whether Inoue lied at the interview. A person who paid for a fraudulent marriage, as is alleged in the indictment, would be more likely to lie about it than one who did not. Inoue cites Matter of Marinho, 10 I & N Dec. 214 (BIA 1963), for the proposition that because the indictment focuses on a different incident than the order to show cause, it has no relevance. The case does not go as far as Inoue claims; rather the case provides an example of an indictment alleging facts too different from the order to show cause to be probative.

B. The Admissibility of the Interview Testimony

Inoue makes two related arguments as to why the testimony taken at the March 8 hearing is inadmissible. Both lack merit.

The first argument is that he was entitled to Miranda warnings before the interview. This court has held more than once that evidence obtained in violation of Miranda is not excludable from deportation hearings on that basis. Trias-Hernandez v. INS, 528 F.2d 366, 368-369 (9th Cir. 1979); United States v. Alderete-Devas, 743 F.2d 645, 648 (9th Cir. 1984).

The second argument is that the statements were coerced, or involuntary. In Alderete-Devas, 743 F.2d at 648, the court said "a showing ... of coercion or some other improper behavior on the part of immigration officials" is necessary to make out a fifth amendment claim for exclusion of probative evidence. In this case, Inoue has made no showing. In fact, the examiner told Inoue that his statements must be given freely and voluntarily and asked him if he wanted to answer questions. Inoue answered "yes."

CONCLUSION

The indictment, conviction, and the March 8 transcript were all admissible. There is more than substantial evidence in the record to support the BIA's determination that there was clear and convincing evidence to find Inoue deportable. We deny the petition for review.