uments were read into the record (pp. 4, 5). The last document is an exhibit (Ex. 2). These documents were entered in evidence over the objection of counsel who stated, "They were allegedly taken from the respondent in violation of his constitutional rights” (p. 4). No specifications in support of the claim have been given. Counsel contends that since he raised a question as to the legality of the evidence, the burden is upon the Service to come forward with proof establishing that the documents came into its possession in a manner which did not offend respondent's constitutional rights. We shall dismiss the contention because respondent has not established a prima facie case in support of the contention. He has presented no competent legal evidence in support of his claim. One who raises the claim must come forward with proof establishing a prima facie case before the Service will be called upon to assume the burden of justifying the manner in which it obtained its evidence. See Nardone v. United States, 308 U.S. 338 (1939); Duran v. United States, 413 F.2d 596, 604 (9 Cir., 1969), cert. denied 396 U.S. 917 (1969); United States v. Lyon, 397 F.2d 505 (7 Cir., 1968), cert. denied 393 U.S. 846 (1968); United States v. Garcia, 272 F. Supp. 286 (S.D. N.Y., 1967); Fed. Rules Cr. Proc., rule 41 (e), 18 U.S.C. The reason for our rule-one similar to that which prevails in criminal matters-is well stated in Garcia, supra. There the court said: ... Experience shows that unless such serious charges are initiated upon the sworn statement of persons having personal knowledge of the facts, a great deal of time of the parties and the Court is frequently wasted upon unnecessary, expensive and protracted suppression hearings, all for the reason that the attorney demanding suppression merely upon his own say-so often discovers only at the hearing that he has been misled by unsworn representations of his clients, which they would be unwilling to swear to in an affidavit, particularly if they were questioned closely by their counsel and warned of the consequences of perjury. It is proper to consider the documents presented by the Service. The respondent does not deny that they relate to him. Their contents reveal that they do in fact relate to him. They establish that respondent is an alien who was admitted for a period not longer than 29 days, 8 CFR 252.1(d), (e), (f). There is no claim by respondent that he has a legal right to be in the United States. Upon presenting evidence that the respondent is an alien, the Service may call upon him to testify and may use his testimony to find that deportability is established, Laqui v. INS, 422 F.2d 807 (7 Cir., 1970). Where the respondent does not claim privilege and refuses to testify, his silence can give rise to an inference that his testimony would support the Service charges, QuilodranBrau v. Holland, 232 F.2d 183 (3 Cir., 1956). Here, it is proper to find that the respondent is an alien, that he was admitted temporarily, and that the period for which he was admitted has now expired. On the basis of these findings it is proper to conclude that respondent is in the United States illegally as charged. The Service burden of establishing deportability could also have been met by drawing on the statutory presumption of the illegality of the presence of the alien who has not justified his presence in the United States, Ah Chiu Pang v. INS, 368 F.2d 637 (3 Cir., 1966), cert. denied 386 U.S. 1037; Vlisidis v. Holland, 245 F.2d 812 (3 Cir., 1957); section 291 of the Act, 8 U.S.C. 1361. We have not relied upon this presumption because it is unnecessary to do so. However, had it been necessary to do so, we think the presumption would have supported the charge. We believe that it does not merely require an alien to show that he entered lawfully; it goes further. It requires the person shown to be an alien to justify his presence in the United States. Our rule is drawn from Vlisidis v. Holland, supra. The case concerned aliens who were charged with having entered temporarily as alien crewmen and remaining illegally. They refused to answer questions about the circumstances of their presence in the United States. The court, after holding that there was adequate evidence for finding the aliens deportable, stated: . . Actually, it was necessary to show only the single fact that the respondent was an alien, for, once that is proved, the legislative scheme requires the alien to justify his presence in the United States. 66 Stat. 234, 8 U.S.C.A. §1361. Neither of the parties here attempted any such showing of lawful presence (p. 814). Respondent did not attempt to show a lawful presence here. In fact, he has failed to show the time, manner and place of his entry. We believe the presumption could have been relied upon. We find no support in this record for counsel's contention that respondent's request for representation was effectively denied. ORDER: The appeal is dismissed. Further ordered: Pursuant to the special inquiry officer's order, the respondent is permitted to depart from the United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by the District Director; in the event of failure so to depart, the respondent shall be deported as provided in the special inquiry officer's order. MATTER OF SOLIS-DAVILA In Deportation Proceedings A-10816558 Decided by Board April 28, 1971 The departure foreign of an alien while an order of deportation was outstanding effectively executed that order notwithstanding a petition for review of the deportation order under section 106 of the Immigration and Nationality Act, as amended, was pending at the time of departure. CHARGE: Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a) (1)]—An alien who at time of entry was excludable as one who had been arrested and deported, consent to apply or reapply for admission not having been granted by the proper authority under section 212(a) (17) of the Act. ON BEHALF OF RESPONDENT: Joseph J. Rey, Esquire 543 Magoffin Avenue El Paso, Texas 79901 ON BEHALF OF SERVICE: Respondent, through counsel, appeals from an adverse order of the special inquiry officer dated February 16, 1971, directing deportation to Mexico on the charge set forth above. Respondent was first ordered deported by a decision of the special inquiry officer dated May 25, 1970, on the ground that he had entered the United States without inspection. Section 241 (a) (2) of the Immigration and Nationality Act (8 U.S.C. 1251 (a) (2)). On appeal, this Board entered an order dated June 18, 1970 dismissing the appeal. The following month, respondent filed a petition for review of that order in the United States Court of Appeals for the Fifth Circuit. Respondent was thereafter located in Mexico on or about September 11, 1970, allegedly preparing to smuggle aliens into the United States. He reentered the United States and deportation proceedings were again instituted and respondent was found deportable on the charge set forth above. Re spondent was also convicted on September 25, 1970 in the United States District Court in El Paso, Texas. He was adjudged guilty for having committed the offense of having unlawfully transported and removed aliens who had not been duly admitted by an immigration officer of the United States and were not lawfully entitled to enter and to reside within the United States, in violation of Title 8, United States Code, section 1324 (a) (2). Respondent was sentenced to serve a term of imprisonment for a period of six months and placed on probation for a period of five years. (Ex. 3). Counsel contends that respondent is not deportable because of his departure foreign while the Board's order of June 18, 1970 was in effect and that his subsequent entry does not support an order of deportation. Counsel further contends that there was no final order of deportation with respect to the original proceedings, in that no order had been entered by the Court of Appeals for the Fifth Circuit prior to his departure. It is clear the respondent departed while the Board's order of June 18, 1970 was in effect and under review in the Court of Appeals pursuant to section 106(a) of the Immigration and Nationality Act. As a result, enforced deportation was precluded by section 106 (a) (3) of the Immigration and Nationality Act. The fact is that the filing of the petition for review did not affect the deportation order under review and there is no judgment of the Court of Appeals affecting the Board's order. Accordingly, the alien's departure while the order of deportation was outstanding effectively executed that order. Section 101(g), Immigration and Nationality Act. Counsel presented no authority in support of his position that respondent's subsequent entry does not support an order of deportation. We affirm the order of the special inquiry officer dated February 16, 1971. We find counsel's other contention to the effect that respondent was not given an opportunity to crossexamine the witnesses without merit. ORDER: It is ordered that the appeal be dismissed. MATTER OF ARIAS-URIBE In Deportation Proceedings A-8760789 Decided by Board April 30, 1971 Where an application for relief under section 212 (c) of the Immigration and Nationality Act is not coupled with an application for adjustment of status under section 245 of the Act, the applicant must meet the statutory requirement that he be returning to resume a lawful unrelinquished domicile of seven consecutive years following a temporary voluntary departure not under an order of deportation. Hence, respondent, a native and citizen of Mexico, whose deportability is predicated on his 1969 narcotics conviction and whose only departure from this country since his 1954 admission for permanent residence was in 1958 or 1959, is ineligible for section 212 (c) relief since he is not an alien returning to resume a lawful unrelinquished domicile. [Matter of S-, 6 I. & N. Dec. 392; Matter of G—A—, 7 I. & N. Dec. 274; and Matter of Smith, 11 I. & N. Dec. 325, distinguished.] CHARGE: Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a) (11)]—Convicted of violation of law relating to the illicit possession of a narcotic drug, to wit, heroin (section 11500, California Health and Safety Code) ON BEHALF OF RESPONDENT: William A. Herreras, Esquire, The respondent, a native and citizen of Mexico, concedes that he is deportable under section 241 (a) (11) of the Immigration and Nationality Act as an alien convicted for possession of heroin in violation of section 11500 of the California Health and Safety Code. His appeal is directed to the denial of an application for advance permission to return to an unrelinquished domicile of seven consecutive years pursuant to the provisions of section 212 (c) of the Immigration and Nationality Act, 8 U.S.C. 1182 (c). The respondent, a married male alien, 23 years of age, was ad |