PIERRE

Interim Decision #2238

MArlhat OF PIERRE et al.

In Exclusion Proceedings

A20182758-763

Decided by Board October 5, 1973

(1) An alien has not effected an entry into the United States unless, while free

from actual or constructive restraint, he has crossed into the territorial limits

of the United States and has been inspected and admitted by an immigration

officer or has actually and intentionally evaded inspection at the nearest

inspeftion point.

(2) Respondents, Haitian refugees, who, upon arrival at the port of West Palm

Beach, Florida, remained on board their vessel awaiting inspection by immi-

gration officers but who were not admitted by such officers, did not make an

entry into the United States. Consequently, exclusion proceedings are proper

in their cases and relief under section 243(h) of the Immigration and National-

ity Act, as amended, is, therefore, unavailable to them.

EXIIMIDA PLR. Act of 1952—Section 212(a)(20) ta U.S.C. 1182(a)(20)1—Immi-

grants—no visas.

ON BEHALF•OF APPLICANTS: ON BEHALF OP SERVICE:

Donald I. Bierman, Esquire Irving A. Appleman

Bierman & Sonnett, P.A. • Appellate Trial Attorney

600 Roberts Building

28 West Flagler Street

Miami, Florida 33130

The aliens, hereafter referred to as "applicant," appeal from the

May 24, 1978 decision of the immigration judge in which he found

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

Nationality Act, and refused to hear their claims of persecution

under section 243(h) of the Act. The appeal will be dismissed.

The principal question to be decided is whether these eases are

properly in exclusion rather than deportation proceedings. The

applicants are all natives and citizens of Haiti. They left Haiti in a

small boat, which fell into distress and was towed into West Palm

Beach, Florida, a designated port of entry, 8 CFR 100.4(c)(2) by an

American vessel on May 20, 1973. Upon being questioned, they

informed the captain of the American vessel that they had no

entry documents. Then they waited on board for the arrival of

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Interim Decision #2238

immigration officers in the hope of being allowed to remain in the

United States as political refugees. Because they did not appear to

the immigration officers to be clearly and beyond a doubt entitled

to land, the matter was referred to the immigration judge for

further inquiry in accordance with section 235(b) of the Act. The

applicants were held in custody until June 15, 1973, when they

were paroled in the custody of a group of ministers. Their applica-

tions for political asylum were denied by the District Director after

he had consulted with the Office of Refugee and Migration Affairs

of the Department of State.

The applicants contend thay they should be heard in deporta-

tion (i.e. expulsion) rather than exclusion proceedings. Therefore,

the key question is whether or not an entry was made, since it is

clear that they did not effect an "entry" into this country,

exclusion proceedings were proper, whereas the proceedings must

be in deportation if the aliens made an "entry."

Section 291 of the Immigration and Nationality Act provides

that any person who applies for admission to the United States

must establish that he is not subject to exclusion. An alien who

has effected an entry is not subject to exclusion, but rather to

deportation. Section 291 further provides that in deportation

proceedings the respondent must bear the burden of showing the

time, place, and manner of his entry into the United States. It

follows, therefore, that the responsibility for establishing whether

an entry has been made rests on the alien.

The courts have found it necessary to interpret the term

"entry," which is now defined in section 101(a)(13) of the Act as

"...any coining of an alien into the United States, from a foreign

port or place or from an outlying possession...." A survey of the

many cases which have treated this subject over the years leads to

the following conclusion: An "entry" involves (1) a crossing into

the territorial limits of the United States, i.e. physical presence;

plus (2) inspection and admission by an immigration officer, United

States v. Vasilatos, 209 F.2d 195 (C.A. 3, 1954); Lazarescu v. United

States, 199 F.2d 898, 900 (C.A. 4, 1952); or (3) actual and intentional

evasion of inspection at the nearest inspection point, U.S. ex rel.

Giaeone v. Corsi. 64 F.2d 18 (C.A. 2, 1933); Morini v. United States,

21 F.2d 1004 (C.A. 9, 1927), cert. den. 276 U.S. 623 (1928); Lew Mop v.

United States, 237 Fed. 50, 52 (C.A. 8, 1916); Matter of Estrada-

Betancourt, 12 I. & N. Dec. 191, 193-4 (BIA 1967); Matter of

Albuerne-Urquiza, Al? 334 264, unreported decision (BIA October

12, 1967); coupled with (4) freedom from restraint, United States v.

Vasilatos, supra; Lazarescu v. United States, supra. In all of the

above cases these conditions were satisfied and an entry was

effected.

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Interim Decision #2238

In contrast, the courts have held that no entry is made when

the alien is taken into custody upon his arrival at an American

port (even though he may possess a valid immigrant visa), taa-

pholz v. Esperdy, 302 F.2d 928, 929 (CA. 2), cert. den. 371 U.S. 891

(1962). There is no entry when the alien is under official restraint,

even after his ship has arrived at port and he has been inspected

and given a conditional landing permit, in re Dubbiosi, 191 F.

Supp. 65, 66 (E.D. Va. 1961). The restraint may take the form of

surveillance, unbeknownst to the alien; he has still not made an

entry despite having crossed the border with the intention of

evading inspection, because he lacks the freedom to go at large

and mix with the population, Ex parte Chow Chok, 161 Fed. 627,

629-30, 632 (N.D.N.Y.), aff'd 163 Fed. 1021 (CA. 2, 1908).

Parole is not an admission, section 212(dX5), Immigration and

Nationality Act, and therefore does not constitute an entry, Leng

May Ma v. Barber, 357 U.S. 185, 186, 188-90 (1958); Vitale v. INS,

463 F.2d 579, 582 (C.A. 7, 1972); Siu Fung Luk v. Rosenberg, 409

F.2d 555, 558 (C.A. 9), cert. denied 396 U.S. 801 (1969); U.S. ex rel.

Tom We Shang v. Murff, 176 F. Supp. 253, 256 (S.D.N.Y. 1959), aff'd

247 F.2d 667 (CA. 2, 1960). Moreover, when an alien crosses the

border, intends to present himself for inspection, and follows the

ordinary path from the international line to the nearest inspection

point, he has not effected an entry, Thack v. Zurbrick, 51 F.2d 634,

635-36 (C.A. 6, 1931). A fortiori an entry is not made when an alien

merely crosses into the territorial waters of the United States

without landing and without evading inspection.

In the present case, the aliens arrived at port but did not land.

Instead, they waited on board their vessel until they could be

inspected by immigration officers. While they may have crossed

into the territorial limits of the United States, they were not

admitted by immigration officers, nor did they intentionally evade

inspection. On the contrary, they requested inspection (Tr. P. 12).

The captain of the American vessel has no authority to admit

them. Indeed, he would have been subject to penalties if he had

permitted them to land, sections 271 and 273, Immigration and

Nationality Act.

Counsel relies heavily on Matter of Estrada-Betancourt, supra, in

which we found that an entry had been made and that, therefore,

deportation proceedings rather than exclusion proceedings were

proper. The aliens in that case did not arrive at a "designated port

of entry." We stated that they "were required to proceed by the

ordinary route to the nearest such port for their inspection," and

held that "when they evaded inspection at that place their 'entry'

was effected and they were thereafter properly the subject of

expulsion proceedings for having 'entered without inspection,"' id.

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Interim Decision #2238

at 194. That the applicants in the present case remained on board

and waited for the immigration inspectors to come to them does

not alter the fact that they did not evade or seek to evade

inspection at the nearest inspection point.

Accordingly, we find that the applicants have not sustained

their burden of establishing that an entry was made. In Beauvil

v.Ahrens, 333 F.2d 307 (C.A. 5, 1964), on substantially similar facts,

the United States Court of Appeals held that exclusion proceed-

ings were proper." Consequently, we agree with the immigration

judge that the proceedings are properly in exclusion, not in

deportation.

Since these are exclusion proceedings, the immigration judge

correctly refused to hear the applicants' claims of persecution

under section 243(h) of the Act. That provision by its terms applies

to aliens "within the United States" and not to those who, like the

applicants, seek admission. Section 243(h) relief is thus unavailable

to applicants in exclusion proceedings, Leng May Ma v. Barber,

supra at 186; U.S. ex rel. Tom We Shung v. Murff, supra at 260.

Applicants for admission and excluded aliens have the alterna-

tive remedy of presenting evidence concerning feared persecution

to the District Director and requesting parole pursuant to section

212(dX5) and 8 CFR 212.5(a). Cf. Glavic v. Beeehie, 225 F. Supp. 24,

27 (S.D. Tex. 1963), affd 340 F.2d 91 (CA. 5, 1964) (where a

crewman has the opportunity to seek parole under section

212(dX5), a hearing under section 243(h) is not required by the Act).

The applicants have availed themselves of this opportunity, but

the District Director denied their requests for political asylum

after consultation with the Office of Refugee and Migration Af-

fairs, Department of-State. Neither the immigration judge nor this

Board is empowered to grant parole pursuant to section 212(dX5)

of the Act, Matter of Conceiro, Interim Decision No. 2183 (BIA 1973),

affd Conceiro v. Marks, 360 F. Supp. 454 (S.D.N.Y. 1973).

The applicants claim that not to allow them to be heard in

deportation proceedings is a violation of due process under the

Fifth Amendment of the United States Constitution. Similarly,

they assert that it is a violation of their rights to due process and

equal protection of the laws under the Fifth and Fourteenth

Amendments for the immigration judge to refuse to hear their

persecution claims. They insist further that their exClusion and

subsequent deportation to Haiti would constitute cruel and unu-

sual punishment, and would violate their rights under the Eighth

1 The facts in the Beauvil case are fully set forth in the unreported Board

decision, Matter of Haiti-an Refugees, Ala 322 3/1-57, 551-Aft (BIA. December 3,

1963).

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Interim Decision #2238

Amendment of the United States Constitution. These claims were

advanced in order to preserve them in the event that appeal to the

courts should become necessary. The applicants acknowledge that

it is not within the province of this Board to pass upon the

constitutionality of the statutes we administer, Matter of L—, 4 I.

& N. Dec. 556, 557 (BIA 1951).

Congress has provided that a hearing be given to those whose

right to enter is in dispute, sections 235(b) and 236, Immigration

and Nationality Act. We have determined that the hearing held

before the immigration judge in the present ease was fairly

conducted. We agree with the decision of the immigration judge

that the proceedings were properly in exclusion, and that he was

therefore without jurisdiction to hear the persecution claims

under section 243(h).

Counsel has requested that the case be certified to the Attorney

General pursuant to 8 CFR 3.1(h). We see no reason for certifica-

tion and therefore deny counsel's request.

ORDER: The appeal is dismissed.

471