CASTELLON

Interim Decision #2847

MATTER OP CASTELLON

In Exclusion Proceedings

A-24436419

Decided by Board February 2, 1981

(1) The Board of Immigration Appeals does not have authority to review the manner in

which the District Directors exercise parole power.

(2) Applicants for admission in exclusion proceedings do not ordinarily enjoy the same

constitutional rights that are available to aliens who have made an entry into the

United States.

(3) A Cuban "refugee" who had been Paroled into the United States was properly found

excludable, upon revocation of parole by the District Director, on the ground that he

lacked documents as an immigrant, despite the failure of the Immigration and

Naturalization Service to establish the companion ground of excludability, commis-

sion of a crime of moral turpitude, which had led to the institution of the proceedings.

(4) An application for asylum under section 208, made after the institution of exclusion

or deportation proceedings, may also be considered as a request for withholding of

deportation under section 243(h).

(5) The application for asylum of a Cuban "refugee" was denied where the application

was based only on the alien's unsupported claim that his imprisonment for theft was a

politically motivated entrapment, particularly in view of his having been cited on six

occasions for exemplary performance in a government office.

EXCLUDABLE:

Order: Act of 1952—Sec. 212(a)(9) [8 U.S.C.1182(a)(9)]—Convicted of a crime involving

moral turpitude

Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant not in posses-

sion of valid unexpired immigrant visa or other valid entry

document

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE

Donald M. Chinnfa, Esquire Jim Tom Haynes, Esquire

Atlanta Legal Aid Society, Inc. Appellate Trial Attorney

302 E. Howard Avenue

Decatur, Georgia 30030

BY: Milhollan, Chairman; Maniatis, and Maguire, Board Members. Dissenting Opinion:

Irving A. Appleman, Board Member

In a decision dated July 23, 1980, an immigration judge found the

applicant excludable under section 212(a)(20) of the Immigration and

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Interim Decision #2847

Nationality Act, 8 U.S.C. 1182(a)(20), dismissed an additional charge of

excludability under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9),

denied a request from the applicant for political asylum, and ordered

his exclusion and deportation from the United States. The applicant

has appealed. The appeal will be dismissed.

The applicant is a 29-year-old native and citizen of Cuba who was

part of the recent exodus from that country. He arrived on May 8, 1980.

at Key West, Florida, and was paroled into the United States

temporarily under the provisions of section 212(d)(5) of the Act, 8

1182(d)(5). On May 16, 1980, employees of the Immigration and

Naturalization Service interviewed the applicant in the Spanish lan-

guage and then prepared an affidavit and a Request for Asylum (Form

1-589) for him in English, which he then submitted to a Service District

Director. These documents state that the applicant was convicted in

Cuba in 1976, for the crime of embezzlement and sentenced to 12 years

in prison. On the basis of this information, the District Director

terminated the applicant's parole, detained him pursuant to section

235(b) of the Act, S U.S.C. 1225(b), and on June 9, 1980, charged him

with being excludable from the United States under section 212(a)(9)

of the Act on the ground that he had been convicted of a crime

involving mural turpitude, and under section 212(a)(20) on the ground

that he was not in possession of a valid, unexpired immigrant visa or

other valid entry document.

On May 28, 1980, the District Director requested an opinion from the

Department of State concerning the applicant's asylum claim. A

Deputy Assistant Secretary for Human Rights and Humanitarian

Affairs, at the Department of State, replied that he believed that the

applicant had commited a serious nonpolitical crime prior to his

arrival in the United States and that he was therefore not eligible for

asylum. On June 26, 1980, the District Director denied the applicant's

asylum request on the ground that he had been arrested and convicted

in Cuba of a serious nonpolitical crime. .

On July 23, 1980, the applicant appeared before the immigration

judge, with counsel, at an exclusion hearing. The applicant admitted

that he did not have a visa, but he denied that he was excludable under

either of the alleged charges. The applicant also renewed his applica-

tion for asylum. •

The applicant alleged in support of his asylum request that his

criminal conviction was the result of politically motivated entrapment.

According to his testimony, the following events led to the conviction.

In 197G, while he was working at the Ministry of Transportation in

Cuba, a fellow employee at the Ministry asked him to join the Com-

munist Party. He refused to join, and because of that refusal, efforts

were made to remove him from his position. These efforts were un-

Interim Decision #2847

sucessful, however, because he had been cited on six occasions for being

an exemplary employee and no firm basis could be found for firing him.

Subsequently, the employee who had asked him to join the Communist

Party convinced him that she was planning to escape from Cuba with

several other employees. She persuaded him to join the group and to

assist them in stealing money from the Ministry to finance their

escape. Sometime later, she told him during a dinner break that the

money had been taken and that it was in his office. When he returned to

his office, he found the money in a box under his desk. Several minutes

later, policemen entered the office and arrested him. A trial was held,

he was found guilty of some form of theft, and then he was sentenced to

12 years in prison. After serving 4 years of that sentence, he was

released to emigrate to the United States.

The applicant also testified that the Cuban government had dis-

criminated. against him because he was Catholic. He had to work

longer hours and could not attend religious ceremonies. He admitted,

however, that most Cubans were Catholics and that apparently they

were all persecuted by the Cuban government because of their re-

ligious beliefs. He testified further that he was accused in 1974 of

holding anti-government meetings in his home, but that the charge

was never substantiated.

Thd immigration judge found that the excludability charge under

section 212(a)(9) of the Act could not be sustained. He found further,

however, that the applicant was excludable under section 212(a)(20) as

an immigrant who did not have a valid, unexpired immigrant visa or

other valid entry document. Finally, he denied the applicant's applica-

tion for asylum on the ground that the applicant had not established a

significant probability that he would be singled out for persecution by

the Cuban government if he returned to that country.

In his appeal brief and during an oral argument before this Board,

the applicant has contended that it is manifestly unjust to order his

exclusion under section 212(a)(20) of the Act. The Service paroled him

into the United States knowing that he did not have entry documents,

and the only reason for separating him from thousands of other Cuban

refugees who were paroled in without entry documents, was the suspi-

cion that he might be excludable under section 212(a)(9) of the Act.

Since the immigration judge has found that he is not excludable under

that section of the Act, there is no longer any reason to deny him the

parole status that his undocumented countrymen are enjoying.

In response to a request from this Board to clarify the Service's

position on the applicant's argument, the appellate trial attorney, who

appeared for the Service at the oral argument, submitted the following

memorandum on October 29, 1980. A copy of this memorandum was

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Interim Decision #2847

sent to the applicant.

At oral argument in the above-referenced matter on October 21, 1980, the Board

requested the Service's views on a policy question which was presented. That question

is whether the Service intends to seek exclusion under Section 212(a)(20) of the At of

a Cuban national such as the applicant herein after a charge under Section 212(a)(9)

has not been sustained by the Immigration Judge.

It is the present Service policy to pursue an exclusion order under Section 212(a)(20)

in such circumstances. A separate determination will be made in such cases as to

whether release from custody is warranted.

Before addressing the applicant's argument, we will briefly sum-

marize the procedures that ordinarily are followed by the Service

when an alien seeks to enter the United States. In addition to any

physical or mental examinations which might be required, the alien is

inspected by an immigration officer pursuant to section 235(a) of the

Act. If the immigration officer concludes that the alien appears to be

clearly and beyond a doubt entitled to enter the United States, he is

admitted. Otherwise, he is detained for an exclusion hearing before an

immigration judge pursuant to section 225(b) of the Act. If the im-

migration judge finds that the alien is excludable and orders him

excluded and deported from the United States, the alien may appeal

the immigration judge's decision to this Board.

In this case, the applicant and his countrymen arrived at Key West,

Florida without entry documents and were taken into custody by the

Service. In view of their extraordinary circumstances, the inspection

process of section 235(a) was deferred and they were paroled into the

United States by the District Director under section 212(d)(5) of the

Act. It is important to note in this regard that under the terms of that

section such parole did not constitute an admission of these aliens into

the United States. Moreover, the section provides further that when

such parole status is terminated, the paroled aliens shall forthwith

return or be returned to the custody from which they were paroled, and

thereafter they will be dealt with in the same manner as that of any

other applicants for admission to the United States. Consequently,

when the District Director subsequently acquired information which

led him to believe that the applicant was excludable under section

212(a)(9), and revoked his parole status on the basis of that informa-

tion, he was returned to the custody of the Service and placed in

exclusion proceedings.

Turning now to the applicant's argument, we note first that our

authority in this matter is limited. Although we agree with the appli-

cant that there does not appear to be a sufficient justification for

keeping him in exclusion proceedings, while thousands of other un-

documented Cubans are enjoying parole status, we cannot reinstate

his parole status. The Attorney General delegated the exercise of the

Interim Decision #2847

parole power under section 212(d)(5) exclusively to the District

Directors, and this Board does not have authority to review the man-

ner in which they exercise that power. Matter of .1fiayesh„ Interim

Decision 2753 (BIA 1980): Matter of Lepofsky, 14 IN Dec. 718 (BIA

1974); Matter of Conceiro,14 I&N Dec. 278 (BIA 1973), ord, Conceiro v.

Marks, 360 F.Supp. 454 (S.D.N.Y. 1973). Our role in these proceedings is

limited to reviewing the immigration judge's finding of excludability

and his rejection of the 'applicant's asylum request. Moreoever, the

scope of our review is limited further by the fact that applicants for

admission in exclusion proceedings do not ordinarily enjoy the same

constitutional rights that are available to aliens who have made an

entry into the United States. Matter of Cenatice, et al..,16 I&N Dec. 162

(BIA 1977).'

Section 212(a) of the Act provides in pertinent part that aliens in the

following class shall be excluded from admission into the United

States:

(20) Except as otherwise specifically provided in this Act, any immigrant who at the

time of application for admission is nut in possession of a valid unexpired visa,... or

other valid entry document required by this Act, and a valid unexpired passport, or

other suitable travel document...

The term "immigrant" in that section refers to all aliens who have not

established that they are entitled to a "nonimmigrant" classification..

See section 214(b) of the Act, 8 U.S.C. 1184(b).

The applicant has not established or even claimed entitlement to a

"nonimmigrant" classification. Consequently, he is an "immigrant.'

Secondly, we are not aware of any law or regulation which exempts

immigrants in the applicant's situation from compliance with the

documentary requirements of section 212(a)(20). Accordingly, since he

does not have the documents required by that section, we find that he is

excludable from the United States.

The applicant also contends that political asylum should be granted

to him because he will be persecuted in Cuba on account of his religious

and political beliefs, and he will be returned to prison to serve the

balance of the 12-year sentence for the trumped up theft charge.

An application for political asylum under section 208 of the Act, 8

U.S.C. 1158, made after the institution of exclusion or deportation

proceedings, shall also be considered as a request for withholding of

deportation under section 243(h) of the Act, 8 U.S.C. 1253(h). 8 C.F.R.

208.3(b) (effective June 1, 1980). While we recognize that there may be

` Compare Paktorovics v. Murff, 260 F.2d 610 (2 Cir. 1958), in which it was held that an

alien had a constitutional right to duo proecoo oven though ho had not boon admitted to

the United States. That case, however, involved special circumstances that are not

present in these proceedings. See Ahrens v. Rojas, 292 F.2d 406 (5 Cir. 1961); Sui Fung

Lick v. Rosenberg, 271 F.Supp. 485 (C.D. Cal. 1967).

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differences between "asylum" and "withholding of deportation" in

another context, we will refer to both forms of relief by the term

"asylum" in this case. An applicant for such relief must establish that,

if deported, he would be subject to persecution based on his race,

religion, nationality, membership in a particulai social group, or polit-

ical opinion. Matter of McMullen, Interim Decision 2831 (BIA 1980).

Accordingly, we will address the merits of the applicant's asylum

request. The only significant allegation in the applicant's asylum claim

is that his imprisonment was the result of politically motivated en-

trapment, and he has not supported that allegation with any evidence

other than his own account of the events which led up to the imprison-

ment. Furthermore, we find it incredible that the Cuban government

would orchestrate such a scheme because of the applicant's refusal to

join the Communist Party or on account of unsubstantiated accusa-

tions that covert political meetings had been held at his home, es-

pecially in view of the fact that the applicant had been cited on six

occasions for exemplary performance as an employee at a government

office. We find, therefore, that he has not met his burden of establish-

ing eligibility for asylum.

We conclude that the decision of the immigration judge was correct.

Accordingly, we will dismiss the applicant's appeal.

ORDER: The appeal is dismissed.

DISSENTING OPINION Irving A. Appleman, Board Member

I respectfully dissent.

The applicant arrived May 8, 1980, as part of the Cuban boat-lift. He

was paroled, and was placed under exclusion proceedings on June 9,

1980, charged with inadmissibility under section 212(a)(9) for commis-

sion of a crime, and section 212(a)(20) for lack of a valid visa. The

majority decision sustains the immigration judge's decision rejecting

the first, but finds him inadmissible on the second. Simultaneously, it

denies his application for asylum under the Refugee Act of 1980, P.L.

96-212, 94 Stat. 102, because of a failure to establish that he would be

persecuted on return to Cuba.

According to an Immigration and Naturalization Service press

release of June 26, 1980, Cubans who arrived in the United States

between April 21, 1980, and June 19, 1980, and were in Immigration and

Naturalization Service proceedings as of the latter date, were to be

granted extensions of parole to January 15, 1981. This was "in compli-

ance with Presi dent Carter's previously announced policy to give Con-

gress time in which to consider special legislation that would regu-

larize the status of Cubans and Haitians known to be in the United

Interim Decision #2847

States prior to June 19.1"

The policy referred to was set forth in a published statement of

Victor H. Palmieri, U.S. Coordinator for Refugee Affairs on June 20,

1980. This legislation [The Refugee Act of 1980] did not contem-

plate the kind of situation we face now, with a sudden massive influx,

without overseas processing and valid documentation. . In order to

redress this extraordinary situation yet maintain the integrity of our

refugee laws for those applying for admission in the prescribed man-

ner, the President has decided to seek special legislation regularizing

the status of Cuban-Haitian entrants...." .

The administration bill, S. 3013, was introduced on August 5, 1980. It

created a special Caban/Haitian Entrant status for these Cubans who

arrived after April 20 and before - June 20, 1980, and provided for

adjustment of statues after 2 years. These admissions would not count

against the numerical limitations of the Immigration and Nationality

Act. In submitting the bill to the Congress, a spokesman for the

Attorney General stated, "This special, one time only, legislation is

necessary to meet problems nut contemplated by the Refugee Act of

1980. The refugee provisions of the Act do not provide for the sudden

and massive arrival of persons to the United States who did not

undergo overseas processing_ . _ Additionally, many rif the Cubans and

Haitians would not qualify under the strict standards for asylum."

(Emphasis supplied.) See Congressional Record—Senate, August 5,

1980, S. 10825 at S. 10827.2

From the outset, these Cubans have been regarded as outside the

asylum provisions of the Refugee Act of 1980. However, where there

was reason to believe the alien was inadmissible for commission of a

crime, the Service has instituted exclusion proceedings and has ac-

cepted and processed asylum applidations. Other Cubans who arrived

during the specified period are not being placed in exclusion proceed-

ings, nor are their asylum applications being processed. See oral argu-

' See press release, quoted in American Council for Nationalities Service, Interpreter

Releases, Vol. 57, No. 25, pp. 305-6, June 30, 1980. The implementing Immigration and

Naturalization Service inctructions appear in a telegraphic message to field offices dated

July 3, 1980, under file no. CO 242.1-P. The same treatment has now been authorized for

Cubans who arrived between June 20,1980, and October 10, 1980, and who were in Service

proceedings as of October 10,1980. Interpreter Releases, Vol. 57, No. 41, October 23, 1980.

Immigration and Naturalization Service proceedings is interpreted as meaning any

Cuban or Haitian who has appeared before an immigration officer and has been docu-

mented in some fashion." Service telegram of July 3, 1980, supra.

"The Refugee Act did not intend to address a situation of this type or magnitude."

Key Issues lecture by Peter W. Bodine, Jr., Chairman, Committee of the Judiciary,

United States House of Representatives, November 12, 1980, reprinted in American

Council for Nationalities Service Interpreter Releases, November 19, 1980, Vol. 57, No. 44,

p. 535, at 542.

622

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ment p. 9.

There is justification for treating a Cuban who may be excludable

because of a criminal conviction, as excepted from the general policy

and procedure. Only a relative few of the boat-lift Cubans have com-

mitted "serious nonpolitical crimes." If they are conceivably a danger

to the community, or if, according to their past histories, there is

reason to believe they are ineligible for, or unworthy of, gaining a

foothold in this country, then they should be subject to the strictures of

the Immigration and Nationality Act, just as much as, e.g., an alien

who seeks to enter with subversive intent, 8 U.S.C. 1182(a)(29). The

institution of exclusion proceedings against this special group is not

unreasonable and we have had no hesitation in accepting jurisdiction

over appeals from adverse rulings below.

The appeals have presented dual aspects of excludability and

"refugee" status. In passing on the appeals, we have regarded each

asylum application under the Refugee Act, as embracing an applica-

tion for a stay of deportation to Cuba under section 243(h) of the

Immigration and Nationality Act, 8 U.S.C. 1253(h). Once excludability

under 8 U.S.C.. 1182(a)(9) was established, we have passed on the

section 243(h) application. However, we have declined, sub silentio, to

rule on eligibility for asylum under the Refugee Act, since that ques-

tion was awaiting legislative resolution at the request of the adminis-

tration. In considering section 243(h) relief, we applied the require-

ments for that relief as now amended by the Refugee Act of 1980,

including the bar for those who have committed a "serious nonpolitical

crime." The persecution issue was reached as a part of the analysis of

the possible political nature of the crime. See Matter of Rodriguez-

Palma, Interim Decision 2815 (BIA 1980).

It could be argued that consideration of the section 243(h) applica-

tion should also have been deferred. We chose not to, because of our

long standing and established jurisdiction over this relief as a part of

-

the Immigration and Nationality Act,3 and the fact that, as a stay of

deportation to a designated country, it was an inherent part of the

appeal before us, distinguishable from a grant or denial of permanent

residence to an asylee. "Asylum" applications for the "boat-lift"

Cubans may or may not be under our jurisdiction when the matter is

finally resolved by the Congress, and implemented by regulation. The

requirements for "asylum" for the group, in whatever form that relief

takes, are not even known to us at this writing. Hence, while the terms

"asylum" and "refugee" have frequently been used interchangeably,

3 Although jurisdiction over the application in exclusion proceedings was extended to

immigration judges and the Board only on May 10, 1979 (8 C.F.R. 2382), it has long been

a part of deportation proceedings (S C.F.R. 242.17(e)).

Interim Decision /12847

and the Service itself uses one application form to cover both (see 8

C.F.R. 108.1), up to now, this Board has not ruled upon Cuban asylum

applications under the Refugee Act of 1980, although we have passed

upon the same application insofar as it could be deemed a request for a

stay of deportation under section 243(h) of the Act. 4

This selectivity has now been abandoned. The majority has con-

sidered the asylum application on the merits under the Refugee Act. Of

course the applicant cannot qualify. Very few of these Cubans can.

Their ineligibility has been acknowledged publicly, yet their removal

has not been sought. Rather, their paroles have been extended while

legislation is pressed to take care of them, despite the lack of a visa and

the inapplicability of the Refugee Act.

The sole apparent reason the applicant was singled out for the

initiation of exclusion proceedings, was because of a possible criminal

basis for excludability under 8 U.S.C. 1182(a)(9). For the reasons noted,

this was acceptable. The criminal ground of excludability has fallen by

the wayside. Nevertheless, the Service insists that the case continue to

be prosecuted and that the appeal be decided in all aspects, and the

majority has acquiesced. This raises an issue whether the full sanction

of the law should be applied, at this time, when the applicant has not

been shown to be within any special category, but is excludable solely

for grounds applicable to all of the other thousands of Cubans who

came here when he did.

The other "boatlift" Cubans are in a limbo where they are not

subjected to exclusion proceedings, where no order of exclusion and

deportation has been entered against them, where their asylum appli-

cations are neither denied nor approved, but are either not accepted,

or, if accepted, are not processed. None of them have immigration

documents and they are equally inadmissible for lack of them. It is

doubtful if more than a handful could qualify technically under the

Refugee Act. On the record before us, the applicant is now in like

position, yet the majority has affirmed his inadmissibility for lack of a

valid visa, has denied his asylum claim for lack of proof, and has

ordered his exclusion and deportation.

In my view, it is both absurd and improper for the Service to press

forward with this case now that the exclusion charge based on a crime

is no longer applicable. This Board acts as the surrogate of the At-

torney General in those matters within our jurisdiction. This is obvi-

ously a policy area, but it is not one in which policy is unclear. I see no

4 Matter of Rnririguez-Polma., supra. For discussion of possible differences between a

stay of deportation under section 243(h) and asylum, see Matter of McMullen, Interim

Decision 2831 (BIA 1980). Cf. Matter of Duwar, 14 I&N Dec. 310 (BIA 1973), for com-

parison prior to Refugee Act.

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Interim Decision #2847

room for interpretation by us of the applicability of the statute to this

applicant at this time. By ruling as it has, the Board has defeated the

expressed desire of the executive branch of the Government, and

anticipated adversely the as yet unexpressed will of the Congress. This

I am unwilling to do.

True, there is no immediate threat of removal from the United

States. The Service is not presently deporting aliens to Cuba, so far as

known. Nevertheless, many possibilities exist. The visa requirement

which is the basis of the no-visa charge under 8 U.S.C. 1182(a)(20) may

be waived legislatively as to this special group.' They may be relieved

entirely of the asylum requirements of the Refugee Act, or be

statutorily defined as "refugees," either within or outside of existing

legislation, and regardless of proof of individual persecution. Admit-

tedly, if, as, and when something of this sort takes place for other

Cubans in like position, this applicant, if still here, may move to reopen

these proceedings. On the other hand, he may not still be here, given

the outstanding order, the variable status of relations with Cuba

(under which Cuba might conceivably accept him back at some future

date), the possibility that some other country may accept him, and the

already demonstrated enthusiasm of the Service for continuing to

move against 1tim despite the failure of the criminal charge. Ryan

more importantly, the Board here sets a precedent under which the

Service is free to impose the full sanction of the Immigration and

Nationality Act on. any of the boat-lift Cubans, whetherin an excepqd

group or not.

I see no need to take these risks. No harm would be done in placing

the applicant back with the others in like status, to be treated however

they are ultimately treated, and under the same standards. I would

therefore remand this case to the Service, without passing at this time

on either inadmissibility under section 212(a)(20), 8 U.S.C. 1182(a)(20),

or on his asylum application, leaving it to the Service to take appropri-

,

ate action as to parole.

S. 8013, made paragraphs (14), (15), (20), (21), (25), and (32) of section 212(a) of the

Immigration and Nationality Act inapplicable, and permitted the Attorney General to

waive any other provision of section 212(a) except (27), (29), (33), and that part of (23)

relating to traffic in narcotics. Congressional Record—Senate, S. 10825, August 5, 1980.

The bill was still pending when. Congress adjourned and will undoubtedly be

reintroduced.