Tung Chi Jen v. Immigration and Naturalization Service, Los Angeles, California

Petitioner Jen appeals from the decision of the Board of Immigration Appeals, upholding the immigration judge’s order that petitioner be deported pursuant to 8 U.S.C. § 1251 (a)(9) as a nonimmigrant alien seaman who had overstayed his 29-day crewman’s landing permit.

The immigration judge’s finding of de-portability was based on evidence petitioner claims was seized in violation of his fourth amendment rights. Petitioner objected to use of this evidence at his deportation hearing. Petitioner also invoked his fifth amendment privilege against testifying at the hearing. The government sought a continuance to submit other proof of de-portability independent of the allegedly “tainted” evidence. The immigration judge denied the motion for continuance as premature, and proceeded to consider and deny petitioner’s constitutional claims on the merits. Petitioner appeals the deportation order on the grounds that it rests entirely upon evidence illegally seized.

Petitioner raises serious constitutional issues. Federal courts will not resolve such claims if an alternative, non-constitutional basis for decision is available. E. g., Hagans v. Lavine, 415 U.S. 528, 546-49 , 94 S.Ct. 1372 , 39…