Petition for Review of an Order of the Immigration and Naturalization Service.
Tom C. Clark, Associate Justice,*fn* Swygert and Pell, Circuit Judges.
The issue presented by this case is whether the failure to give Miranda*fn1 warnings to an alien renders his statements inadmissible in deportation proceedings.
The petitioners, Ampara Chavez-Raya and Gloria Quintanar de Chavez, are husband and wife and are natives and citizens of Mexico. According to the petitioners' offer of proof, which was presented at the deportation hearing, the facts surrounding their interrogations are as follows:*fn2
On April 25, 1973, investigators from the Immigration and Naturalization Service (INS) came to the hotel where Mr. Chavez was working and had the manager point out Chavez to them. The agents then approached Chavez, identified themselves, and asked Chavez for some identification. When Chavez tendered "a green card," presumably an alien registration card, the agents responded that the card was not Chavez's. They then informed Chavez that he was under arrest. The agents escorted Chavez to their car and Chavez subsequently, under further questioning, made certain admissions.
The agents then drove Chavez to his wife's place of employment where they asked Mrs. Chavez to produce her papers. When Mrs. Chavez indicated that her papers were at home, the agents drove her there and the documents were produced. Both petitioners were then driven to the INS office where they were given Miranda warnings and subsequently signed sworn statements.
An order to show cause was subsequently issued against both petitioners. At their joint deportation hearing, the petitioners, who were represented by counsel, refused to testify with respect to the charges of deportability, claiming privilege under the Fifth Amendment. Over petitioners' objections, the immigration judge admitted into evidence the petitioners' sworn signed statements. The Service also presented into evidence Mrs. Chavez's passport.
The immigration judge found that the petitioners were deportable as charged.*fn3 The Board of Immigration Appeals, upon finding that their deportability was established by clear, convincing and unequivocal evidence, dismissed the petitioners' appeal. The petitioners, pursuant to 8 U.S.C. § 1105a(a), seek review in this court of the final order of deportation. In this appeal the petitioners challenge only the admissibility of the statements and Mrs. Chavez's documents and concede that, if the statements and documents were admissible, the evidence was sufficient to establish deportability.
Mr. Chavez contends that his written sworn statement should not have been admitted into evidence at the deportation hearing since he was not given Miranda warnings before being questioned at the agents' car.
In those situations in which Miranda warnings are required, the warnings must be given when the individual is subjected to a "custodial interrogation." Miranda, 384 U.S. at 444. The Board of Immigration Appeals did not reach the broad question of whether the Miranda rule applies to deportation proceedings since it found that, in any event, Mr. Chavez was not in a "custodial setting" when he was questioned by the agents. We cannot agree with the Board's finding.
As this court recently noted, "the application of Miranda does not turn on such a simple axis as whether or not the suspect is in custody when he is being questioned." United States v. Oliver, 505 F.2d 301, 304 (7th Cir. 1974). Rather, the warnings are required if the individual is in custody "or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. A "custodial interrogation," moreover, may occur in places other than a police station. Orozco v. Texas, 394 U.S. 324, 22 L. Ed. 2d 311, 89 S. Ct. 1095 (1969).
In the present case, the agents specifically asked at the hotel for Mr. Chavez. The agents allegedly told Chavez that the card which he had tendered to them was not his and that he was under arrest. Chavez was then escorted by the two agents to the agents' car and, at that point, under questioning by the agents, Chavez made the admissions. The agents did not give Chavez Miranda warnings prior to this questioning at the car. We conclude that, under these circumstances, Chavez's freedom of movement was significantly restrained during the ...