tal appearance, combined with the past history of illegal alien employment at that particular restaurant, and the anonymous tip, clearly would give rise to a reasonable suspicion of alienage sufficient to justify the very limited invasion of privacy engendered by a nondetentional questioning. Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1069– 1071 and n. 10 (7 Cir. 1976), aff'd in part and vacated in part, 548 F.2d 715 (7 Cir. en banc 1977); United States v. Morales-Cuevas, 546 F.2d 427 (9 Cir. 1976) (table); Ojeda-Vinales v. INS, 523 F.2d 286 (2 Cir. 1975); Shu Fuk Cheung v. INS, 476 F.2d 1180 (8 Cir. 1973); Cheung Tin Wong v. INS, 468 F.2d 1123 (D.C. Cir. 1972); Au Yi Lau v. INS, 445 F.2d 217 (D.C. Cir.), cert. denied 404 U.S. 864 (1971); Yam Sang Kwai v. INS, 411 F.2d 683 (D.C. Cir. 1969), cert. denied 396 U.S. 877 (1970). See also Marquez v. Kiley, 436 F. Supp. 100 (S.D.N.Y. 1977). Upon learning that the respondents were aliens, the Service officer asked them if they were in possession of immigration documents which could establish their status. When the Service officer was told that the respondents' documents were at the apartment house, the respondents were placed in the back seat of a Service vehicle from which the inside handles had been removed. At this point they were clearly in custody. Since the officer knew that the respondents were aliens and that they were not in possession of their immigration documents, the officer had a reasonable belief that the respondents were in violation of the immigration laws. See Ojeda-Vinales, supra, at 288; Cheung Tin Wong, supra at 1128. However, under section 287(a)(2), in order to make an arrest an officer must not only have reason to believe that a violation of the law has occurred, but he must also reasonably believe that the individual is "likely to escape." Due to the difficulty of making such an on-the-spot determination, the courts have held, essentially, that an officer's determination will not be upset if there is any reasonable basis for it. Marquez v. Kiley, supra, at 108. See United States v. Cantu, 519 F.2d 494 (7 Cir.), cert. denied 423 U.S. 1035 (1975); United States v. Meza-Campos, 500 F.2d 33, 34 (9 Cir. 1974); LaFranca v. INS, 413 F.2d 686, 689 (2 Cir. 1969). Here, there was plainly a reasonable basis for the arrests not only on the ground that the aliens might escape, but also for the purpose of further investigation into their immigration status. Counsel for the respondents also argues that they were compelled to turn over their documents to the Service officer, and that, in view of the criminal penalties which attach to out-of-status crewmen under section 252(c) of the Act, they were thereby forced to incriminate themselves in violation of the Fifth Amendment. It has not been shown that there was any search, or anything other than a voluntary handing over of the documents. However, in any event, under section 264 of the Act, an alien is required to have in his possession a certificate of alien registra tion or alien registration receipt card. The Form I-95 issued to crewman is such a certificate of alien registration, and is subject to the requirements of section 264. Matter of Yau, 14 I. & N. Dec. 630 (BIA 1974). A necessary corollary to the duty to carry this document is the duty to produce it to a Service officer engaged in the normal and proper fulfillment of his duties. Matter of Yau, supra. The information content of the Form I-95 is completely determined by the Government; a duplicate copy of the Form I-95 is kept by the Immigration and Naturalization Service in its records. We note that this is a civil deportation proceeding, not a criminal prosecution for violation of section 252(c). No such prosecution has been instituted. However, even in the context of a criminal prosecution, the respondents' argument would be questionable under the "required records" doctrine. Shapiro v. United States, 335 U.S. 1 (1948). See also Marchetti v. United States, 390 U.S. 39, 57 (1968). In the context of a criminal prosecution for violating sections 262, 265, 266(a) and 266(b) of the Act, it was held that the alien registration statutes are "essentially noncriminal and regulatory provisions" which come within the "required records" doctrine. United States v. Sacco, 428 F.2d 264, 271 (9 Cir. 1970), cert. denied 400 U.S. 904. See also United States v. CamposSerrano, 430 F.2d 173 (7 Cir. 1970), aff'd on another ground, 404 U.S. 293 (1971); Matter of Yau, supra; Matter of Chen, Interim Decision 2440 (BIA 1975), aff'd Chen v. INS, 537 F.2d 566 (1 Cir. 1976). See further Fisher v. United States, 425 U.S. 391 (1976); Andresen v. Maryland, 427 U.S. 463 (1976). We do not find any violation of the respondents' Fourth or Fifth Amendment rights. The respondents also appeal from the decisions of the immigration judge denying them the privilege of voluntary departure. In denying voluntary departure, the immigration judge relied upon the fact that the respondents had been illegally in the United States for a period of one and one-half years in one case and two years in the other. In Matter of M—, 4 I. & N. Dec. 626 (BIA 1952), we sat out the standards which should govern the grant of voluntary departure to crewmen. Once the requisite good moral character has been established, the immigration judge should consider previous violations of the immigration laws, the ability and willingness of the respondent to depart from the United States, and whether the alien was a bona fide seaman at the time of entry. See also Matter of Tsang, 14 I. & N. Dec. 294 (BIA 1973); Matter of Ocampo-Ocampo, 13 I. & N. Dec. 661 (BIA 1971). The fact that an alien is presently in the United States illegally is clearly not a factor in determining his eligibility for voluntary departure. To so hold would lead to the anomalous result of rendering voluntary departure unavailable to all except those not subject to deportation. We have reviewed the record in both cases, and find that the two respondents were clearly bona fide seamen at the time of their illegal entry. Both had made previous trips to the United States as seamen and had reshipped within the allotted time. Similarly, there is no evidence that either respondent has previously violated the immigration laws. Both have manifested an ability and willingness to depart from the United States if voluntary departure is allowed. There have been no suggestions that either of the respondents lack the requisite good moral character. We shall therefore sustain the respondents' appeal from the denial of voluntary departure, and grant them 30 days in which to depart voluntarily from the United States. ORDER: The appeals are dismissed as to the finding of deportability. The appeals are sustained as to the denial of voluntary departure. FURTHER ORDER: The respondents are permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the District Director; and in the event of failure so to depart, the respondents shall be deported as provided in the immigration judge's orders. MATTER OF M/V "TRINITY MARINER" In Fine Proceedings BAL-10/1.528 Decided by Board May 3, 1978 (1) A Service delay in instituing fine proceedings which prevents the carrier from presenting evidence on the issue of mitigation is a mitigating factor in a fine under section 254 of the Act. (2) An alien crewman admitted in TRWOV status to proceed to his vessel ceases to be a TRWOV nonimmigrant upon joining the vessel and assumes the status of a crewman; the provisions of section 254 of the Act are thereafter applicable to him and liability for fine under section 271 of the Act does not lie. (3) One or multiple violations by the same crewman in the course of a single trip to the United States results in a single fine under section 254 of the Act. (4) Failure to report a desertion within 24 hours of the time such desertion becomes known constitutes lack of compliance with section 251 of the Act; the express language of section 251 precludes remission of the fine once liability has been established. BASIS FOR FINE: Act of 1952-Section 251 [8 U.S.C. 1281] Section 254 [8 U.S.C. 1284] In re: M/V “TRINITY MARINER,” which arrived at the port of Baltimore, Maryland, from foreign, on March 19, 1974. Alien crewman involved: GWO JONG LUH ON BEHALF OF CARRIER: Geoffrey S. Tobias, Esquire Ober, Grimes, & Shriver 1600 Maryland National Bank Building Baltimore, Maryland 21202 ON BEHALF OF SERVICE: George W. Masterton BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members This is an appeal from the decision of the District Director dated September 12, 1977, finding that the appellant carrier had incurred fines totaling $2,010 arising from its failure to detain an alien crewman. Since it appears that the appeal may have been untimely filed, we shall consider the case on certification as provided by 8 C.F.R. 3.1(c). The appeal will be sustained in part and dismissed in part. The alien crewman arrived in Seattle, Washington, by air on March 7, 1974, en route to join the M/V "Trinity Mariner" at Portland, Maine, and was issued a Form I-94, Arrival-Departure Record, endorsed as follows: TRWOV AUTHORIZED BY AGREEMENT DATE 3-7-74 I/I NO. 307 CARRIER MUST ASSURE DEPARTURE BY 3/7/74 VIA TRINITY MARINER The crewman jointed the vessel which thereupon sailed coastwise, arriving at Baltimore without touching foreign on March 19, 1974. On March 29,1974, the crewman was apprehended at the Greyhound Bus Depot in Baltimore in possession of a one-way ticket to Boston. He was returned to the vessel and ordered detained and deported by Service of a Form I-259 on representatives of the vessel. On April 15, 1974, after the vessel had sailed foreign, the Service was notified that the crewman had deserted the vessel on April 12, 1974. In June, 1976, over two years after liability for fine was incurred, a Form I-79, Notice of Intention to Fine, was issued alleging violations of section 251 of the Immigration and Nationality Act, 8 U.S.C. 1281 (failure to file a timely notice of a desertion); section 254 of the Act, 8 U.S.C. 1284 (failure to detain on board an alien crewman ordered detained); and section 271 of the Act, 8 U.S.C. 1321 (failure to prevent the unauthorized landing of an alien). All of the above charges were sustained by the District Director who imposed fines in the amount of $1,000 each for violations of sections 254 and 271 and $10 for violation of section 251, the maximum penalties provided by the Act. On appeal, counsel does not contest the Service's allegation that the crewman had deserted and he thus concedes liability for fine. He contends, however, that by the time the Notice of Intention to Fine had been served, all parties with knowledge of the events in issue had long since severed their relationship with the vessel and records relevant to a determination of whether mitigation may be warranted were no longer available. In essence, counsel argues that the Service's long delay in bringing these proceedings precluded the appellant from presenting any evidence which would justify mitigation of the fine and that the imposition of maximum penalties under these circumstances constitutes a violation of the appellant's due process rights. Inasmuch as the Service's failure to act promptly appears to have prevented the appellant from establishing mitigation as counsel contends, we shall mitigate the fine on the section 254 charge to $200, the maximum reduction allowable under the statute. |