How to foil immigration authorities by silence

by Atty. Emmanuel Samonte Tipon

“Less talk, less mistake. No talk, no mistake.” – Senatorial aspirant Gene Magsaysay refusing to discuss the issues of the day. He won.

The word “loquacious” became popular in the Philippines when President Estrada fired a chief of staff he imported from Canada for being “loquacious”. The employee had been talking to the media about midnight drinking and gambling in Malacanang Palace. This infuriated Erap. His first name sounded like an Aphrodisiac. I forgot his last name but it starts with “L”. (L for loquacious?)

A loquacious witness is the worst witness. Loquacity is the curse of many Filipinos seeking immigration benefits or avoiding deportation. Why can’t they control their loquacity and instead hearken to Gene Magsaysay’s slogan?

An alien in removal proceedings was asked by the government counsel how many times he had slapped his wife. The record showed that he had only one conviction for slapping his wife.  He replied: “Oh, many times. She has a big mouth. Every time she opens her mouth I slap her.” We castigated him after the proceedings for saying that. “But you told me to tell the truth,” he exclaimed in justification. He was deported. We obtained a reversal of his deportation order but he died before he could be brought back to the U.S.

Another alien in removal proceedings for drug use was asked by the Immigration Judge how many brothers he had. He replied. “I have only one brother. But he was deported for drug use.” His lawyer reproached him for saying those things telling him that he could have just answered: “One” without telling about his brother’s deportation, since he was not being asked about it.  “But it’s the truth,” the alien said. The alien was deported.

When aliens are interviewed by a consul they are frequently told: “Your medical exam result does not show any evidence of drug use, but tell me, have you ever taken prohibited drugs?”  Some aliens have answered “Yes, many times” resulting in the visa application being denied. Why, in the name of Ali Kabok, do they say that? When they are later asked why they explain: “Honesty is the best policy.” Go ahead, cling to your “best policy”. But is it the best policy to get an immigrant visa? We were able to get a visa waiver for drug use in one case but it took more than a year.

Pakistanis are not as loquacious as Filipinos. At least that is what Urooj displayed when she was brought before an immigration court recently and charged with overstaying and filing a frivolous asylum claim. She did not present any witnesses. So the Department of Homeland Security (DHS) called her as a hostile witness. She responded to questions with a riot of silence. The Immigration Judge drew adverse inferences from Urooj’s refusal to answer each question she was asked and held that Urooj’s refusal to testify, taken in conjunction with the documentation submitted by
the DHS was sufficient to demonstrate by a preponderance of the evidence that there was a showing of fraud in her asylum application. The IJ terminated her asylum and ordered her removed. The BIA affirmed.

The Court of Appeals reversed, holding that the DHS could not satisfy its burden of establishing removability in the absence of any substantive evidence based solely upon the adverse inference drawn from silence. Impeachment evidence alone cannot satisfy DHS’ burden where there was no substantive evidence and thus nothing to impeach. The Court held that the decisions of the IJ and the BIA in this case relieved DHS of its burden of proof, allowing it to prove the facts in dispute by offering only impeachment evidence unconstrained by the procedural rules of notice. The court concluded that DHS did not meet its burden of establishing the grounds for termination of asylum by a preponderance of the evidence.  Urooj v. Holder No. 09-70628 11 06 13 CA 9.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)