GUEVARA

Citations

• 20 I. & N. Dec. 238

Syllabus

GUEVARA, 20 I&N Dec. 238 (BIA 1991) ID 3143 (PDF) (1) A respondent in deportationproceedings who remains silent when confronted with evidence of his alienage,the circumstances of his entry, or his deportability, may leave himselfopen to adverse inferences, which may properly lead in turn to a findingof deportability against him. (2) In deportation proceedings,the respondent's silence alone, in the absence of any other evidence ofrecord, is insufficient to constitute prima facie evidence of the respondent'salienage and is therefore also insufficient to establish the respondent'sdeportability by clear, unequivocal, and convincing evidence. (3) Whether or not theGovernment's purported grant of immunity from prosecution is actuallyvalid, the Immigration and Naturalization Service may not rely on therespondent's silence alone to establish a prima facie case of alienageand deportability. (4) The immigration judge'sfinding that the Service had established the respondent's alienage anddeportability on the basis of the respondent's silence alone was foundto be erroneous, and the Board of Immigration Appeals terminated the deportationproceedings. (5) Where the Servicedid not seek to modify its case against the respondent, but merely requestedan additional opportunity to make a second effort at proving the sameallegations and charge which had already been advanced unsuccessfully,regulations at 8 C.F.R. §§ 3.28 and 242.16(d) (1990) did notapply, and the Board dismissed the Service's motion to reconsider.