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The facts relating to the question of self-incrimination are as follows: After informing the subject alien who was represented by counsel, of the nature of the hearing and the charge against him, the hearing officer asked the alien when and where he was born. Counsel requested that the witness be instructed that he need not answer this question or any other question, the answer to which might tend to incriminate him. The hearing officer denied the request. Counsel made a continuing request to similar effect as to each question asked thereafter and the hearing officer entered a continuing denial.
Before giving further consideration to the specific case before us, we believe it may be helpful to first state generally our views concerning the privilege of self-incrimination as it concerns deportation proceedings.
The fifth amendment to the Constitution of the United States protects a witness testifying in deportation proceedings from giving evidence which would tend to show his guilt under a Federal criminal statute. Where there is no such showing, an alien may be compelled
to testify.3 The privilege against self-incrimination must be claimed by the individual involved and can only be claimed on his own behalf. To justify a witness in his refusal to answer, it is not necessary to find. that his answer, unconnected with other testimony, would be enough to convict him of crime; it is sufficient if the answer may reasonably have a tendency to incriminate the witness, or furnish proof of a link in the chain of evidence necessary to convict him of crime. To afford the privilege to a witness, it must be found from the character of the question and the other facts adduced in the case, that there is some tangible and substantial probability-some real danger-that the answer of the witness may help convict him of a Federal crime."
When reasonable apprehension of such danger is found to exist, the witness alone becomes the judge as to whether his answer may incriminate him. Nor can he be compelled to state why the answer might tend to incriminate him."
Where witness has once given testimony voluntarily, it may afterward be used against him in the same or other proceedings and he may
1Graham v. United States, 99 F. (2d) 746, 749 (C. C. A. 9, 1938). Estes v. Potter, 183 F. (2d) 865, cert. den., 240 U. S. 920 (1951).
2 United States v. Murdock, 284 U. S. 141 (1931).
3 United States ex rel. Bilokumsky v. Tod, 263 U. S. 149 (1923).
4 Rogers v. United States, 340 U. S. 367, 371 (1951).
5 Rogers v. United States, 197 F. (2d) 559 (C. A. 10, 1950), aff'd. 340 U. S. 367 (1951).
• Ex parte Irvine, 74 Fed. 954, 960, C. C. S. D. Ohio W. D. (1896). See footnote 4.
1 Burr's Trial, 224 Marshall, C. J. (U. S. v. Burr, 25 Fed. Cas., Case No. 14, 692e (1807)). See footnote 4.
not claim the privileges of self-incrimination as to such testimony. Disclosure of a fact waives the privilege as to its details. Where the testimony called for could not be used against the witness in prosecution for crime, because of the running of the statute of limitations, the existence of a pardon, a conviction or an acquittal, or other reasons, the privilege ceases."
While the Government may practice no deception, fraud, or duress upon an accused in order to obtain possession of evidence, it is not required to advise him of his right to claim (or his right to waive) the protection granted under the fifth amendment." However, good judgment may under special circumstances indicate the desirability of volunteering the advice.
We will now apply the law to the facts of the instant case. At the time the claim of privilege was advanced, the hearing officer had before him the information that the subject had registered as an alien, information which indicated a lawful admission at a proper port and time; and the knowledge that in issuing a warrant of arrest, the district director who had issued the warrant had found the existence of a prima facie case indicating that the subject was an alien who had been lawfully admitted to the United States and who was deportable on the ground that he had remained beyond the period of his authorized admission. There was nothing from the character of the questions asked or the other facts in the case which indicated a tangible and substantial probability that the answer of the subject alien might help to convict him of a Federal offense. Under such circumstances, it was proper to find the privilege did not exist. We note in fact that there is nothing in the testimony given by the subject alien which would tend to incriminate him.
We see no reason therefore, to change our order of March 14, 1952, or to grant a new hearing. The motion will be denied.
Order: It is ordered that the motion be and the same is hereby denied.
8 Rogers v. United States, 340 U. S. 367, 372 (1951).
Rogers v. United States, 340 U. S. 376, 373 (1951).
Sec. 2279, p. 460, Wigmore on Evidence, 3d Ed., vol. VIII.
11 Thompson v. U. S., 10 F. (2d) 781, 784 (C. C. A. 7, 1926); U. S. v. Wilson, 42 F. Supp. 721 D. C. D. Delaware (1942).
IN THE MATTER OF A——
In DEPORTATION Proceedings
Decided by the Board August 4, 1952
Citizenship, status: Married native-born woman, act of June 25, 1936, as amended: Meaning of clause "resided continuously."
(1) A temporary absence from the United States unaccompanied by an intent to abandon United States residence, does not break the continuity of residence required under the provisions of the act of June 25, 1936, as amended, so as to permit the restoration of United States citizenship status on July 2, 1940, to a native-born woman who had lost her citizenship by marriage to an alien.
Warrant Act of 1917-Found managing a place habitually frequented by
Act of 1917-Found deriving benefit from the earnings of a
BEFORE THE BOARD
Discussion: This is an appeal from an order dated December 3, 1951, by the Assistant Commissioner providing for the deportation of the respondent on the grounds stated above.
Counsel claims that the respondent is a citizen of the United States and is therefore not subject to deportation. We agree with counsel that the respondent is a citizen of the United States and that the proceedings should be terminated. The question as to the citizenship of the respondent is the sole issue involved.
The Service has found that the respondent was born in the United States on February 5, 1894; that on April 11, 1914, she married a native and a citizen of Spain who never became a citizen of the United States; and that he died at Los Angeles, Calif., on February 3, 1945.
The appellant has resided in the United States continuously with the exception of a stay in Spain from about May to September 1916. At the time of her departure she apparently had only one child. She was taken with her. If the appellant can be regarded as having resided continuously in the United States since the date of her marriage, she would be a citizen under the act of July 2, 1940, which amended the act of June 25, 1936, and which reads as follows:
That hereafter a woman, being a native-born citizen, who has or is believed to have lost her United States citizenship solely by reason of her marriage
prior to September 22, 1922, to an alien, and whose marital status with such alien has or shall have terminated or who has resided continuously in the United States since the date of such marriage, shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922: Provided, however, That no such woman shall have or claim any rights as a citizen of the United States until she shall have duly taken the oath of allegiance * * *. [Matter in italic was added by amendment of July 2, 1940.]
The facts as shown by the record concerning the absence are as follows: At a hearing on May 18, 1936, appellant's husband testified that he had been a resident of the United States since about 1909 or 1910; that he resided continuously in the United States until he was injured in a mine on June 21, 1915; that he was hospitalized until January 24, 1916; that he received $650 in compensation; that he thereupon took a trip to Spain; and that when he arrived in Spain, he went to the home of his mother. In answer to the question "what did you do while you were in Spain? Visit?," he answered:
I visited there and I started a little business there, buying coal and one thing and another, but I decided I didn't like it much and went back to the United States.
He stated he remained in Spain about 6 months and that he took his wife and his daughter with him. At the same hearing, the appellant testified that her trip to Spain was the first time she has been away from home; and that when she entered the United States, she told immigration officials that she "was born and raised in the United States and went to Spain for a trip." An unsigned form bearing the heading "Passport Data For Alien Deportees" and the date "March 4, 1936" apparently completed from information furnished by the appellant, contains the statement that the appellant "Was in Spain, with husband, 6 months in 1916, on visit."
In his brief, counsel states that it is the contention of the appellant that the trip to Spain was purely a personal visit and that at no time was there any intention to maintain residence outside the United States. He states that prior to leaving the United States, the husband of the appellant had accepted employment in the coal mines at Clarksburg, W. Va., which he would commence upon his return to the United States.
A letter dated March 27, 1936, from a coal company reveals that the husband of the respondent was employed as a miner from April 4, 1914, to June 21, 1915; that on the latter date, he fractured his leg; that he was in the company hospital until January 24, 1916, at which time he resumed work. A letter dated April 3, 1936, from another mining company reveals the respondent's husband was employed at various intervals from March 1914 to July 1931; and that he was employed by them in July 1917.
The act of June 25, 1936, as amended by the act of July 2, 1940, does not define the clause "resided continuously." However, the term "resided continuously" within the United States has been found in laws relating to naturalization since the basic naturalization act of June 29, 1906. It was well settled at the time of the amendment of July 2, 1940, that the requirement of "continuous residence" insofar as it concerned naturalization of aliens, did not necessitate continual physical presence in the United States during every moment of the period, and that temporary absences unaccompanied by an intent to abandon residence in the United States, did not operate to interrupt the continuity of residence, (United States v. Rockteschell, 208 F. 530 (C. C. A. 9, 1913); In re Barron, 26 F. (2d) 106 (E. D., Mich., 1928)). We see no reason to apply a different meaning to the words "continuous residence" found in the act under consideration than the meaning applied to an identical term in the naturalization laws at the time of the passage of said act. We will so interpret it.
While the record shows that appellant's husband engaged in business in Spain during his sojurn there, we note he regarded his stay as a visit. We note further that appellant's testimony that she went to Spain for a trip, implies an absence that was in the nature of a temporary visit; and that in the form apparently completed by the applicant in 1936 when there was no occasion to misrepresent the nature of her stay in Spain, she characterized the stay as a visit. We note that she and her husband returned to the United States after a short absence. Under such circumstances, we do not feel a finding of abandonment of domicile in the United States is required. Since the respondent was abroad on a temporary visit only, the continuity of her residence was not broken and she may be regarded as having resided continuously in the United States for the purpose of the act of July 2, 1940.
We have previously held that the amendment of July 2, 1940, to the act of June 25, 1936, conferred as of the date of its enactment the status but not the rights of citizenship. A native-born citizen woman who had lost her citizenship by marriage to an alien but who had resided in the United States continuously since such marriage, regained her status as a United States citizen on July 2, 1940, though she had not taken an oath of allegiance, Matter of B-, 1, I. & N. 283 (B. I. A., 1942). In that opinion, we also held that the Nationality Act of 1940 does not purport to deprive a person of the status of citizenship acquired under the act of June 25, 1936, as amended. The respondent, being a citizen of the United States, is not deportable. Proceedings should be terminated. An order to that effect will be entered. Order: It is ordered that proceedings be and the same are hereby terminated.