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Keywords

attorneyhearingself-incriminationcitizenshipobjectionoverruledcredibility

hearingself-incrimination

Related Cases

Bigby v. Immigration and Naturalization Service

Facts

Paul Bigby, a native of Jamaica, was charged with deportability for entering the United States without inspection and for being convicted of a crime related to controlled substances. During a telephonic hearing, Bigby denied the allegations, but his attorney asserted the Fifth Amendment right against self-incrimination when asked about his citizenship. The immigration judge overruled the objection, leading to Bigby's deportability being confirmed by the BIA, which found that the privilege was waived since it was not asserted by Bigby himself.

Bigby, a native of Jamaica, was charged with deportability for entering the United States without inspection and for being convicted of a crime relating to controlled substances.

Issue

Whether the immigration judge's decision to conduct the hearing by telephone violated the statutory requirement for a physical presence, and whether Bigby's Fifth Amendment right against self-incrimination was properly invoked.

Rule

The Immigration and Nationality Act requires that determinations of deportability be made on a record from a proceeding before a special inquiry officer, and the Fifth Amendment privilege against self-incrimination is personal to the witness.

The Immigration and Nationality Act provides that 'determination of deportability in any case shall be made only on a record made in a proceeding before a special inquiry officer.'

Analysis

The court held that the invocation of the Fifth Amendment privilege was effective despite being made by Bigby's attorney rather than by Bigby himself. The INS did not object to the manner in which the privilege was raised, and both parties and the immigration judge treated the privilege as having been invoked. The court found that the telephonic hearing was appropriate under the circumstances, as it did not affect credibility determinations.

We conclude that the only reasonable reading of this record is that all parties, counsel, and the court treated the privilege as having been invoked.

Conclusion

The court affirmed the determination that the telephonic hearing was appropriate but vacated the BIA's judgment regarding the invocation of the Fifth Amendment privilege and remanded for further proceedings.

We hold that the Fifth Amendment privilege was effectively invoked, and thus we vacate the judgment of the BIA and remand for further proceedings not inconsistent with this opinion.

Who won?

Paul Bigby prevailed in part because the court found that his Fifth Amendment privilege was effectively invoked, which necessitated further proceedings.

Bigby prevailed because the court found that the privilege was effectively invoked.

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