PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before Seitz, Chief Judge, and Adams and Garth, Circuit Judges.
Six Polish nationals petition for review of an order of the Board of Immigration Appeals, holding them deportable for violating 8 U.S.C. § 1251(a) (2) & (9) (1976). This court has jurisdiction under 8 U.S.C. § 1105a (1976).
In late October, 1978, the Newark, New Jersey office of the Immigration and Naturalization Service (INS) received information from an unidentified source that H&H Industries of Pennsauken, New Jersey was employing illegal aliens. In early December, the Newark office received a memorandum, prepared four months earlier by the Philadelphia INS office, stating that a "reliable source" had informed the Philadelphia office H&H employed illegal aliens. The memorandum named seven Polish aliens and stated that the informant had said that H&H employed additional undocumented aliens, mostly Poles. Record checks by the Newark office in December revealed that six of the seven named aliens would not be subject to arrest and deportation. In early January an agent went to H&H to survey the site, principally to determine whether the INS could carry out an "area control operation." He determined that one would be feasible.
On February 1, 1979, six INS agents went to H&H to look for aliens in violation of their immigration status. Upon arrival at H&H at about 6:00 p.m., three agents remained at the exits to the factory to prevent anyone from leaving the factory. The other three agents entered the factory. Two of them spoke to the two persons in charge, the general manager, Elaine Morgandale, and the night foreman, Romuald Harburda. The agents inquired about the seventh person on the list of names contained in the memorandum from the Philadelphia office. They found that that person had left H&H's employ more than a year before.
The three agents inside the factory then began interrogating the employees. The agents asked each employee in Polish whether he was a Polish national, had a green card, or had come to the United States on a tourist visa. Ten workers, including the six petitioners, were arrested and taken to the Newark INS office. There each petitioner was advised of his rights, and each signed a waiver of rights. Five petitioners made statements that were used to show deportability at the hearing before the immigration judge. Petitioner Kowalczuk did not make a statement, but after his arrest his father gave the INS agents Kowalczuk's passport and entry document, which were sufficient to prove Kowalczuk's deportability.
The immigration judge, after extensive hearings, issued deportation orders for the six petitioners. The Board of Immigration Appeals affirmed. This petition for review followed.
Petitioners raise four issues for review: (1) whether the agents violated their fourth amendment rights; (2) whether the agents violated 8 U.S.C. § 1357(a)(1) & (2) (1976), which limits the authority of INS agents to question and arrest suspected aliens; (3) whether the agents violated the INS's regulations, 8 C.F.R. § 287.3, 32 Fed.Reg. 6260 (April 21, 1967) (subsequently amended), which require certain warnings to be made to arrested aliens; and (4) whether the exclusionary rule should apply to deportation hearings.
Petitioners' claims under the fourth amendment and section 1357(a)(1) principally raise the issue of the reasonableness of the initial questioning of petitioners in the factory. The claims based on section 1357(a)(2) and section 287.3 principally raise the issue of the timing of petitioners' arrests.
The fourth amendment provides that, "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ...." The protections of the fourth amendment apply to seizures that do not amount to a traditional arrest. See Terry v. Ohio, 392 U.S. 1, 16-19 & n.15, 88 S. Ct. 1868, 1877-78 n.15, 20 L. Ed. 2d 889 (1968). The constitutionality of such seizures depends upon "the reasonableness in all the ...