Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1987)

MEMORANDUM^* 

Modesto Ilustrado, a native and citizen of the Philippines, petitions for review of a decision of the Board of Immigration Appeals affirming his deportation on the grounds that he misrepresented himself as single and childless to obtain a permanent resident visa, when in fact he was married and had a child in the Philippines prior to entering the United States in 1980. We affirm and deny the petition.

FACTS

Modesto Ilustrado was granted a second preference immigrant visa (available only to unmarried children of lawful permanent residents) in Manila, Philippines. He arrived in Honolulu on November 9, 1980 and went to work picking pineapples on the island of Lanai, where his mother, U.S. citizen sister and brother Solomon (a resident alien) also reside.

Ilustrado eventually applied for U.S. citizenship, and was scheduled for a citizenship interview in Honolulu on February 4, 1987. Instead of proceeding with the interview when he appeared in Honolulu, the Immigration and Naturalization Service ("I.N.S.") served him with an Order to Show Cause why he should not be deported as having entered on an invalid visa and having made fraudulent statements in his visa application. Specifically, he was charged with having married and fathered a child before entering the United States, which made him ineligible for second preference status.

The Order to Show Cause (Form 221S), also contained an Arrest Warrant, issued on September 30, 1986, and indicated that an Ilocano interpreter was needed. Pursuant to the warrant, Ilustrado was arrested and interrogated by Special Agent Michael Hair, who confronted him with a copy of a Philippine marriage contract between himself and Estela Sadorra, dated March 21, 1980. For his part, Ilustrado admitted that he had married Sadorra and had two children by her, but claimed that they were not married until 1983, when he returned to the Philippines. In support of this claim he presented a second marriage contract dated January 6, 1983. It is unclear whether an interpreter was present at the interview.¹ 

Although the "Notice of Custody Determination" portion of the form was left blank, Ilustrado contends that he was then illegally detained for a week in Oahu Community Correctional Facility, and released only after posting a $3,000 bond on February 11, 1987. He has attached exhibits to his brief to that effect.

A deportation hearing was begun March 7, 1987 (by telephone) and completed on April 17, 1987 in Honolulu. Ilustrado was represented by counsel and provided with an interpreter for at least part of his testimony. He testified that he had in fact gotten Estela pregnant in 1980 but that he had asked his brother Froilito to take his place and marry her, so that he would not lose his immigration eligibility.²  He claimed that he did not marry Estela until January 1983, when he returned to the Philippines. However, he did not present any affidavits from her or other family members to support his claim. As for children, he testified that he had two, Michael, born in July 1980, and Mark, born September 1983. However, on cross-examination, he stated that he was not really sure that Michael was his son, "because it's [his] brother who married the mother of the child."

Both marriage certificates were offered into evidence, as were Michael's birth certificate listing Modesto as the father and corroborating the March 1980 wedding date, and Ilustrado's 1980 visa application stating that he was single and unmarried. Agent Hair testified regarding the interrogation, stating that he had confronted Ilustrado with the 1980 marriage certificate, and the petitioner "changed colors," looked fearful, and finally admitted to the 1980 marriage. The Immigration Judge found Ilustrado deportable and granted voluntary departure, stating that Ilustrado's account that his brother married Estela in 1980 was "not credible," "inherently improbable," and "not worthy of belief." He also found Ilustrado's testimony as to Michael's paternity contained "material inconsistencies," in that it conflicted both with his own prior testimony and with the information on Michael's birth certificate.

On appeal, the Board of Immigration Appeals ("BIA") affirmed. It held that any due process violations stemming from Ilustrado's arrest and interrogation were harmless because the IJ did not rely on any evidence gathered at the interview or on the Special Agent's testimony. It declined to review Ilustrado's claim that the arrest warrant was served illegally because the record did not indicate that Ilustrado had ever been taken into custody. Finally, it found that the 1980 marriage contract and visa application constituted clear, convincing, and unequivocal evidence of deportability. Ilustrado timely petitioned for review, but has not challenged the BIA's finding of deportability.

DISCUSSION

Because Ilustrado does not challenge the BIA's factual finding that he was married in 1980 and thus deportable, we need not address this issue here. Instead, his claim is that the Service's conduct in arresting him on an outdated warrant and interrogating him without an Ilocano interpreter present violated due process and the Service's own regulations. Thus, he reasons, the information against him should be suppressed and his deportation order set aside.

This is an issue of law which we review de novo. Reyes-Palacios v. I.N.S., 836 F.2d 1154, 1155 (9th Cir. 1988) (per curiam). Aliens do enjoy Fifth Amendment due process rights, and are entitled to a full and fair deportation hearing, where they may be represented by counsel and assisted by an interpreter if needed. Id.; Tejeda-Mata v. I.N.S., 626 F.2d 721, 727 ((9th Cir. 1980) (Ferguson, J., dissenting). See also 8 U.S.C. § 1252(b); 8 C.F.R. Sec. 242.16. It is undisputed that Ilustrado was represented by counsel, understood and responded to questioning in English, and was provided with an interpreter when his attorney requested one. Thus, he cannot claim that the hearing itself was unfair. Instead, he attempts to argue that the circumstances of his arrest and interrogation, without more, entitle him to the suppression of all independently gathered evidence and to the termination of deportation proceedings. This claim is meritless.

The BIA specifically found that the 1980 marriage certificate alone was enough evidence to find him deportable, regardless of any evidence stemming from the February 4 interrogation. Therefore, any pre-hearing error was harmless and no prejudice ensued. United States v. Nicholas-Armenta, 763 F.2d 1089, 1091 (9th Cir. 1985): Nicholas v. I.N.S., 590 F.2d 802, 809 (9th Cir. 1979). The lone case relied on by petitioner, Attoh v. I.N.S., 606 F.2d 1273 (9th Cir. 1979), is entirely distinguishable. Attoh was arrested without a warrant, strip-searched, forcibly subdued, confined in a straightjacket, and finally deprived of his right to counsel. Thus, his deportation hearing was fundamentally flawed and his deportation order vacated.

By contrast, Ilustrado's arrest and interrogation were peaceful, and he was allowed to obtain an attorney and given two months to prepare for his deportation hearing. Furthermore, neither the IJ nor the BIA relied upon his alleged "confession" to Agent Hair, but made their determinations of deportability based solely on the 1980 marriage certificate and Ilustrado's testimony at the hearing. In addition, since Attoh, the Supreme Court has held that an alien's "body" or identity is never suppressible regardless of how he was arrested, and that the exclusionary rule does not apply in deportation proceedings absent an "egregious" due process violation. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038-1040 (1984). The Service's conduct here was not egregious; thus, Ilustrado's due process claim must fail.

Ilustrado also contends that the BIA abused its discretion by failing to consider evidence that he was arrested on an invalid warrant, taken into custody, and held for a week before being required to post a $3,000 bond. It is true that the record did contain the Arrest Warrant dated September 30, 1986, and the Certificate of Service dated February 4, 1987. In addition, we agree that the warrant here may have been issued and served in violation of I.N.S. Operating Instruction 242.6a, which states: "A warrant of arrest should not be issued unless the arresting officer has reason to believe that the alien is likely to abscond or will be a threat to public safety or national security.... and shall be served within 24 hours of issuance."³ 

However, it is not clear that the Operating Instructions confer any due process rights upon aliens such as Ilustrado. Romeiro De Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985). In addition, I.N.S. regulations provide that bond and custody determinations are to be made "separate and apart" from determinations of deportability, and "shall form no part" of the final decision on deportation. 8 C.F.R. Sec. 3.18, 242.2(d). Thus, while the custody issue may also be reviewed by the BIA, the Board correctly stated that its resolution could have no effect on the adjudication of Ilustrado's deportability. The B.I.A. did not abuse its discretion by failing to consider the issue, and its failure did not prejudice Ilustrado's claim on the merits.

CONCLUSION

The Board's order of voluntary departure in lieu of deportation is AFFIRMED and the petition for review DENIED.