decided. as amended january 25 1979.: January 4, 1979.
PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
Before Seitz, Chief Judge, Hunter, Circuit Judge, and Cahn,*fn* District Judge.
Petitioner, Shan Gan Lee, a/k/a Shin Kan Li, seeks review of an order of the Board of Immigration Appeals, pursuant to section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a. The petitioner challenges the Board's affirmance of an Immigration Judge's finding that he was deportable as a crewman deserter under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2). He claims that evidence introduced during the deportation proceedings should have been suppressed as the fruits of an illegal interrogation and arrest.
Petitioner was arrested by John Hughes, a Criminal Investigator with the Immigration and Naturalization Service (hereinafter INS) in Freehold, New Jersey, on June 7, 1976. Following that arrest Hughes escorted Lee to the INS District Office in Newark, New Jersey, where he was served with a warrant for his arrest and an order to appear for a hearing before an Immigration Judge to show cause why he should not be deported. The hearing took place on July 30, 1976.
At that hearing petitioner was represented by counsel, who advised him to refuse to answer any questions based on his fifth amendment privilege against self-incrimination. As a result, Lee did not testify during that portion of the hearing relating to the charge that he was deportable, although he did testify in support of his application for a grant of voluntary departure.
The evidence introduced by counsel for the INS consisted of the aforementioned order to show cause, a crewman's landing permit, and the testimony of Investigator Hughes. The permit had been issued by an Immigration Officer at Wilmington, North Carolina, on March 8, 1976, to one Shin Kan Li, a native of the Republic of China. It authorized said crewman's stay in this country only until the next sailing of his vessel, and in no event beyond 29 days.
Petitioner's counsel asked the Immigration Judge to suppress the crewman's landing permit because it had been illegally obtained by the INS. The Judge delayed ruling on that motion until he learned the circumstances surrounding the INS's acquisition of the permit through the testimony of Investigator Hughes.
Hughes testified at the deportation hearing that he apprehended Lee in Freehold, New Jersey, on June 7, 1976. Hughes had been returning from an unrelated assignment in the vicinity when he stopped at a store in a shopping plaza to purchase some cough drops. As he was returning to his car he noticed two men walking across the parking lot in the direction of an adjacent shopping center. A restaurant called the China Inn was located within that adjacent shopping center, and Hughes knew, from prior experience, that the China Inn had employed illegal aliens in the past. The two men caught his attention because they were speaking in Chinese. Hughes noted that each man was dressed in a white shirt, of the type normally worn by kitchen help in restaurants. Based on these observations, Hughes approached the men, identified himself as an Immigration Officer, and proceeded to question them about their alienage.
Hughes testified that one of the two men immediately informed him, in English, that he was a refugee and presented a passport. Meanwhile, Lee appeared to Hughes to be very nervous and during Hughes' conservation with the other man Lee, without speaking, started to walk away. At that point Hughes told Lee to wait a minute or to stop and asked him what his status was in the United States. When Lee replied that he was a lawful permanent resident, Hughes asked to see his "green card." Lee answered that he didn't have one, and Hughes countered by stating that without such a card Lee could not be a lawful permanent resident. At that, Lee immediately stated that he had entered the United States as a crewman and that he had deserted his ship. Lee then produced from his wallet the crewman's landing permit introduced by the INS at the hearing and gave it to Hughes. Hughes then placed Lee under arrest, advised him of his rights and transported him to the INS District Office in Newark.
On cross-examination, counsel for petitioner questioned Hughes at length concerning the factors that had led him to believe there was "probable cause" to question Lee and his companion. Hughes reiterated that it was the combination of the two men's conversation in Chinese, their dress in garb normally worn by restaurant personnel and their walking in the direction of the China Inn that caused him to approach them for questioning. He stated that Lee's nervous appearance and the fact that he attempted to walk away, in contrast to the other man's actions in freely conversing with Hughes, further aroused his suspicions. Hughes testified that it was then merely a matter of moments from the time he asked Lee to stop until the time he recanted his initial story that he was a lawful permanent resident and admitted that he had jumped ship. Hughes repeatedly denied that it was the Oriental appearance of the two men alone that had led him to commence the questioning that led to Lee's arrest.
The Immigration Judge adopted Hughes' uncontradicted version of the facts and entered an oral decision in which he held that petitioner's arrest had been properly executed. He characterized Hughes' initial stop of Lee as a "forcible detention of a temporary nature for purposes of interrogation under circumstances arising creating a reasonable suspicion, not arising to a level of probable cause to arrest, that the individual so detained is illegally in this country." The Judge found that the crewman's landing permit, given Lee's failure to deny that it related to him or to otherwise explain his presence in this country, established by clear, convincing and unequivocal evidence that he was deportable as an alien illegally present in the United States. The Judge also denied petitioner's application for voluntary departure after having heard Lee's testimony that deportation would adversely affect his ability to continue working as a crewman and that he did not deliberately leave his ship with the intention of staying in the United States, but rather got lost and missed his ship's sailing date.
Petitioner appealed both aspects of the Judge's order to the Board of Immigration Appeals and the Board issued its opinion, after hearing oral argument, on August 22, 1977. The Board agreed with the Judge's finding as to the legality of Lee's interrogation and arrest under sections 287(a)(1) and (2) of the Immigration and Nationality Act, 8 U.S.C. §§ 1357(a)(1) & (2), and with his finding that the landing permit conclusively established Lee's ...