Unpublished Disposition, 936 F.2d 576 (9th Cir. 1991)

MEMORANDUM^* 

Petitioners challenge the denial of their motion to suppress evidence at their deportation hearing, the exclusion of evidence intended to impeach a government witness, and the denial of their application for voluntary departure under 8 U.S.C. § 1254(e) (INA Sec. 244(e)).

* The Apostols argue that Severino Apostol was "detained" by INS criminal investigator Willie Witt immediately upon confronting Apostol in the parking lot, before Witt could have formed a reasonable suspicion of illegal alienage. The INS argues, as the Board of Immigration Appeals ("BIA") found, that the initial encounter between the two men was "consensual" and thus not a detention or seizure. The test is whether, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." INS v. Delgado, 466 U.S. 210, 215 (1984) (quotation omitted).

In Benitez-Mendez v. INS, 760 F.2d 907 (9th Cir. 1983), a Border Patrol officer approached and questioned the suspect in a hop field. The suspect responded to the questions voluntarily. The court held that there was no seizure, noting the absence of evidence of "the use of physical force, a display of a weapon, or the threatening presence of several officers." Id. at 909; see also United States v. Anderson, 663 F.2d 934, 939 (9th Cir. 1981) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) (Stewart, J.)). We regard the situation here as substantially the same. The fact that Witt handcuffed Severino Apostol after reasonable suspicion arose (due to the discovery of several conflicting pieces of identification and Apostol's failure to produce a passport) is irrelevant to the character of the questioning which preceded the handcuffing.

The Apostols also suggest that Witt violated the fourth amendment by seizing documents from a closed suitcase in their home.¹  The factual question of whether the Apostols (themselves or through their cousin, Obed) gave their consent for Witt's seizure was resolved against them by the immigration judge ("IJ") in denying their motion to suppress evidence. Witt's testimony and the Apostols' own admissions that they gave permission for Witt to accompany Obed to their home to obtain the passports supported the ruling; we perceive no error.

II

The Apostols complain that the IJ abused his discretion in refusing to permit discovery of Witt's personnel file, denying admission of a newspaper article reporting past violations by Witt, and blocking cross-examination of Witt concerning past misconduct. To establish an abuse of discretion, the petitioner must show prejudice. See Barraza Rivera v. INS, 913 F.2d 1443, 1447-48 (9th Cir. 1990). The Apostols claim that they were prejudiced in that they were denied an opportunity to impeach Witt's credibility.

Whatever diminishment the Apostols suffered in their ability to impeach Witt would likely not have made a difference in the outcome. Severino Apostol's version of the parking lot encounter with Witt did not significantly differ from Witt's. Although Obed's affidavit concerning the suitcase search varied from Witt's testimony, it is not clear that even Obed's version demonstrates a fourth amendment violation, let alone an "egregious violation" which might support an application of the exclusionary rule. Most significantly, there was ample opportunity to cross-examine Witt on the facts of this case.

III

When the IJ denied the Apostols' motion to suppress at the end of the deportation hearing, the Apostols applied for voluntary departure. To that end, they sought to testify concerning the circumstances surrounding their procurement of the passports. The IJ refused to take this additional evidence, stating that he was "going to be bound by that which is in the Record." The Apostols argue that they were denied an opportunity to establish good moral character and to add to the positive factors which would be balanced in the discretionary decision whether to grant voluntary departure.

When the petitioners asserted their fifth amendment right to remain silent, they ran the risk that the IJ would draw an adverse inference. See Cabral-Avila v. INS, 589 F.2d 957, 959 (9th Cir. 1978), cert. denied, 440 U.S. 920 (1979). Moreover, when the IJ refused their request to testify, they failed to make a detailed proffer of proof. Also, any testimony which attempted to establish that they did not procure their passports fraudulently would hardly have been credible in light of their earlier refusals to testify and their admissions in the I-213 forms.

The evidence that the Apostols were involved in a criminal scheme included the passports themselves, the anonymous tip, and the admissions to Witt. Severino Apostol also possessed a phony drivers license, and the Apostols apparently had participated in a fraudulent divorce. Under these circumstances, it could not be said that the BIA abused its discretion in determining that the positive equities--a six-month old child, no criminal records, and Severino Apostol's good work history--did not outweigh the negatives.² 

PETITION DENIED.