V-Q

MAritat OF V—Q-

In EXCLUSION Proceedings

A-10550819

Deeifigd by Board September 16,1980

Admission—Occurs when finding of admissibility has been communicated to

alien—Subsequent action under immigration laws must be taken in depor-

tation oroceedings.

Jurisdiction to examine an alien as an applicant for admission is lost when

the inspecting immigration officer communicates his Ending of admissibility

to the alien. At that point an "admission" has occurred; the alien cannot

be recalled, even immediately following inspection, for questioning within

the exclusion process; and his right to remain in the United States can

properly be determined only in deportation proceedings.

EXCLUDABLE: Act of 1952--Section 212(a) (12) [8 U.S.O. 1182]—Alien who has

engaged in prostituum.

BEFORE THE BOARD

DISCUSSION: This case is before us on appeal from a special

inquiry officer's order of May '20, 1960, directing that the appellant

be excluded and deported from the United States on the above-stated

ground.

The record relates to a 38-year-old female alien, a native and na-

tional of Mexico, who was lawfully admitted to the United States-

for permanent residence on April 16, 1956. On May 2, 1960, follow-

ing a temporary absence in Mexico, she applied for admission to re-

sume her residence and employment here. She arrived at the Santa

Fe Street bridge (El Paso, Texas) immigration station, presented

herself to one of two immigration officers on duty at the pedestrian

inspection point therein, and produced her Alien Registration Receipt

Card (Form 1-151) for his examination. He told her to "go ahead,"

or words to that effect. Almost immediately thereafter, however, a

bystander identified her as a prostitute, whereupon the admitting

immigration officer sought to recall the appellant for further inspec-

tion. There is some controversy as to just how far she had progressed

in the interim, but it appears to be free from doubt that she bad

proceeded at least 75 to 100 feet beyond the check point before the

officer succeeded in taking her into custody. She was then subjected

78

to questioning by him and another immigation officer, after which

these exclusion proceedings followed.

The issue here is whether the case properly lies in exclusion or

expulsion proceedings. We hold that it is the latter.

The original jurisdiction to hold and exclude the appellant de-

pended upon the custody of her person acquired at the time of her

arrival, and this original jurisdiction continued until the question

of her right to be admitted was determined in her favor, at which

point the proceedings before the examining immigration officer must

be regarded as closed. (See United States ex rel. Fink v. Tod,

1 F.2d 246; and United States ex rel. Johnson v. Watkins, 170 F.2d

1009.) At the time the appellant was told by the primary inspector

to "go ahead" and proceeded 75 to 100 feet beyond the inspection

point, the original jurisdiction to hold and exclude her terminated,

because the question of her right to be admitted as a returning resi-

dent (cf. Kwong Hai Chew v. Golding, 344 U.S. 590) had been de-

termined in her favor and she was no longer in the custody of the

iuuuigralivu officer. Support for our decision, which is unnecessary,

can be found in another case decided this date (Matter of L—P—,

A 6080883,

- unreported), wherein the Service made the sub-

ject of expulsion proceedings an alien who was taken into custody by

Border Patrol officers at -the Eagle Pass, Texas, immigration station

after he had progressed not more than six or eight feet from the

point where an immigrant inspector had "admitted" him as a United

States citizen.

We note that the district director, in the Government's brief in

support of the special inquiry officer's order, has cited the case of

United Stales v. Day (43 F.2d 917) as authority for the proposition

that the "admission" of an alien to the United States is:

* * an act of the authorities, accepting the alien into the body of our In-

habitants, not indeed as a citizen, but as a possible resident, whose stay may

be permanent unless something unforeseen happens.

But we find nothing in that case contrary to the conclusion we have

reached herein. An "admission" is the freeing of an alien from the

legal restraints to which the immigration laws subject him. To ac-

complish an "admission," no physical movement on the part of an

alien is required. He is not required to cross any line, whether

actual or imaginary, or :stop in any direction or change his location.

Other than to answer questions and offer his documents for inspec-

tion, the alien plays a passive role in the interplay from which an

"admission" may result. "Admission" occurs when an authorized

employee of the Service communicates in a tangible manner to an

applicant for admission his determination that the applicant has es-

tablished that he is not inadmissible under the immigration laws.

At the point such communication is made and received by the ap-

79

plicant, "admission" has occurred. We have drawn this rule from

examination of the pertinent cases, and we believe that it is one

which can be applied in a practical, expedient, and standard manner.

(See United States ex rel. Patton v. Tod, 297 Fed. 385; United

States v. Lasarescu, 104 F. Supp. 771; United States v. V asilatos,

209 F.9.d 195.) Once "admission" has occurred, our holding is that

exclusion proceedings are no longer proper and that expulsion pro-

ceedings are required.

Nor do we think that the case of Gee Shew Hong v. Nagle (18 F.2d

248), relied on by the district director, calls for a contrary holding

Therein, the alien applied for admission into the United States as

the minor son of a Chinese merchant domiciled here. Immediately

upon his arrival he vas examined by medical officers of the United

States Public Health Service and was found to be free from any

loathsome or dangerous contagious disease. This fact was certified

to the Commissioner of Immigration. The alien was thereafter

examined by a board of special inquiry and was found to be ad-

missible under the Chinese treaty and exclusion laws. For some rea-

son not disclosed by the record, the Commission of Immigration and

the board of special inquiry then referred the case back to the medical

officers for a • further physical examination. Upon such further

examination the medical officers found that the appellant was au icted

with a loathsome and dangerous contagious disease and such fact was

certified back to the board of special inquiry. Because of this certifi-

cate the right to admission was denied the alien. The court therein

did not agree with the alien that the first medical certificate was

final or conclusive, as the alien claimed. The court went on to say :

• • • The power to admit and exclude aliens is vested in a board of special

inquiry, subject to the right of appeal, not in the medical officers of the Pub-

lic Health Service. The certificate is furnished "for the information of the

immigration officers and the board of special Inquiry" and is evidence and

nothing more. • • • In the exercise of their authority to admit and exclude

aliens it is the duty of the immigration officers to inquire into every fact

material to a correct decision of the matter before them and they have full

and complete authority to that end as long as the case remains within their

jurisdiction. Surely it cannot be successfully maintained that they are hound

to admit an alien known or believed to be inflicted (sic) with a loathsome or

dangernuc contaginuc diCPDQP, simply hecauce a medical officer has inadvert-

ently or inadvisedly so certified. Under such a rule the officers would be

compelled to admit the alien and then proceed to arrest and deport him for

an illegal entry under another provision of the statute.

The distinction between the present case and the one relied on by

the district director is that the record of the latter does not in-

dicate that the alien was ever freed from the "legal restraints" to

which the immigration laws had subjected him. "We find therein no

indication whatsoever that the question of the alien's right to be

admitted was ever finally determined in his favor and, more impor-

80

taut, there is certainly in the record in that ease 111) evidence VI a

final act of admission such as telling the alien to "go ahead," noting

his documents to the effect that he was admitted, or otherwise so

communicating the fact to the alien. Clearly, on the available

record of that case, the original jurisdiction to hold and exclude

the alien was never terminated by releasing the custody of his person.

Briefly, by way of summary, our holding is that exclusion pro-

ceedings are no longer proper and expulsion proceedings are required

where:

(1) an alien's admissibility has been determined favorably to him

by the examining immigration officer ; and

(2) said officer has communicated this fact to the alien in an

ascertainable manner.

ORDER: It is ordered that the appeal be sustained.

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