Interim Decision 40725

Interim Decision 40725

MATTER of ESITADA-BETAZTOMMT

In Exclusion Proceedings

A-17251270

A-17251272

A-14326873

Decided by Board April 10, .1987

Since an alien who does not arrive in the United States at a designated port

of entry is still in the act of entering this country only if the circumstances

at the time of his interception are consistent with his having proceeded directly from the border to the nearest such port for inspection, an entry

into the United States has been made by appellants, natives and citizens

of Cuba, who arrived at other than a designated port (about 20 miles east

of Brownsville, Texas) and proceeded 10 miles inland by automobile to the

airport at Harlingen, Texas where they were taken into custody by Service officers, having been in this country about 3 hours and allegedly en route

to Miami, Florida where they intended to present themselves for inspection

as political refugees: consequently, expulsion, and not exclusion, proceedings are the proper forum for consideration of their cases.

ExOLODABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 11823—Immigrant, no

visa (all).

ON BEHALF OF Simms: Robert A. Vielhaber

Appellate Trial Attorney

(Oral argument)

Bernabe Q. Maldonado

Trial Attorney

(Brief filed)

The record relates to three male aliens, natives and citizens of

Cuba, who, on December 12, 1966, crossed to the United States from

Mexico by boat at a point near the mouth of the Rio Grande, about

20 miles east of Brownsville, Texas. They then proceeded by automobile to the airport at Harlingen, Texas, which is approximately

20 miles northwest of Brownsville and 10 miles inland from the international boundry. They were there taken into custody by Service officers, at which time they had been on United States soil nearly

three hours.

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The subjects stated that they were en route to Miami, Florida,

and that they intended to present themselves for immigration inspection as political refugees at that place, because: "" * that is

where all other Cubans are living now and being helped * *".

They were, however, transported to Brownsville for further interrogation. Subsequently, they were referred to a special inquiry officer for a hearing in exclusion proceedings, pursuant to sections 235

and 236 of the Immigration and Nationality Act (8 U.S.C. 1225

and 1226).

The special inquiry officer ordered those proceedings terminated,

concluding that expulsion proceedings were required as to these aliens,

under section 242 of the Immigration and Nationality Act (8 U.S.C.

1252). He then certified the case to this Board for review and final

decision.

The Service strenuously urges that the special inquiry officer erred

in ruling that exclusion proceedings were improper in this instance.

It argues that the aliens were still in the act of entering the United

States until they reached their interior destination, to wit, Miami,

Florida. It would have us give full faith and credit to the testimony

of the aliens that they intended to be inspected at that point.

The case of Brazil v. Ahrenal involved a group of Haitian aliens

who arrived in the United States on a vessel which had to be towed

into a port in Florida by a Coast Guard boat. They, too, apparently

desired to be admitted to the United States as political refugees; they

were paroled into the United States pursuant to section 212(d) (5) of

the Immigration and Nationality Act (8 U.S.C. 1182) ; and they were

subsequently referred to a. special inquiry officer for a hearing in exclusion proceedings. In the course thereof, it developed that they had

never been lawfully admitted to the United States for permanent residence; that they desired to remain in the United States indefinitely;

and that they were not in possession of appropriate documents to permit them to do so. In rejecting their claim that they were entitled to

an expulsion proceeding rather than an exclusion proceeding, the court

held :

The controlling question in determining whether Petitioners were entitled to a

deportation proceeding rather than an exclusion proceeding is the issue of

whether they bad in fact made an "entry" within the meaning of that word as

it is used in the Immigration and Nationality Act.

That is the test which must be applied in determining whether exclusion or deportation proceedings are proper in the case now before us

2

LY.S.D.43., S.D., Fla., No 63-883 Civ.-OF, 12/24/63.

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for consideration. The question of whether that "entry" is legal or

illegal is immaterial (Lam Fo Sang v. Esperdy, 210 F. Supp. 786).

The case of United States v. In Toy (198 U.S. 2E), involved a person of the Chinese race detained aboard a ship for deportation to

China pursuant to an administrative decision that he was not a United

States citizen. In denying his petition for habeas corpus, seeking a

judicial trial on the issue of his citizenship, the Supreme Court of the

United States pointed to the well-established principle that all persons

attempting to enter the United States are subject to inspeotion by immigration officers for determination of their right to enter, regardless

of the ground on which their claim to that right is based (p. 262) . Accordingly, it is clear that the aliens in this case were subject to immigration inspection.

Section 241(a) (2) of the Immigration and Nationality Act (8

U.S.C. 1251) provides that: "Any alien in the United States * * *

shall, upon the order of the Attorney General, be deported who— * * *

entered the United States without inspection at any time or place other

than as designated by the Attorney General * * *.". Under the law,

then, expulsion proceedings are required as to any alien who has entered the United States at other than a designated "port of entry."

The case of Thaok v. Zurbriek (51 F. 2d 634), involved an alien previously admitted to the United States for permanent residence who

was returning to this country from a visit to Poland, by way of

Canada. He proceeded by train to the last Canadian station before

reaching the Vermont border, where he sought advice from the American consular agent as to how he should get to his home in Massachusetts.' He was advised to go to the immigrant inspector at Newport,

Vermont, six miles south of the border, and got a ride there but found

the Immigration Office closed. He then stayed at a hotel in Newport

overnight, and appeared at the Immigration Office as soon as it opened

the following morning. He was thereupon made the subject of expulsion proceedings, on the ground that he had entered the United States

without inspection. In ruling that the case was improperly in expulsion proceedings, in that the facts recited did not constitute an "entry

without inspection," the court said :

Such entry cannot be, in all cases, completed by that technical entry

•

which occurs when the international line is crossed. If such crossing were not in

connection with or merged into an actual inspection at the appropriate place,

"entered" might have this technical meaning, but if the alien merely follows the

ordinary path from the international line to the nearest inspection point and

presents himself for inspection, his action in so doing cannot be an offense for

' He had apparently been unable to get a visa or reentry permit because of inability to obtain a passport.

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which Congress intended be should be sent to his former foreign residence and

forbidden return to this country. • • •

We cannot agree with the Serviee that the aliens involved in this case,

who did not arrive in the United States at a "designated port of entry"

did not have to "follow the ordinary path from the international line

to the nearest inspection point," because they actually intended to be

inspected at some other port, to wit, Miami, Florida. The language of

the court in question is clear and unequivocal. It permits no other reasonable interpretation than the one we have placed upon it.

That aliens who do not cross the border at a "designated port of

entry" must proceed directly to the nearest such port for inspection is,

we think, made clear by the decision in Giaooni v. Corsi (64 F.2d 18).

Therein, a resident alien returning from a short visit in Canada was

arrested by a Customs border patrolman about one-half mile beyond

the Customs and Immigration Office and charged in expulsion proceedings with entry without inspection and a crime prior to entry. The

alien claimed that he intended to be inspected, but could not find the

inspection station. The court, in upholding the propriety of expulsion

proceedings, ruled that the inspector was not obliged to accept the

alien's claim as to his intention where the circumstances of his presence

beyond the inspection point (nearest) contradicted his claims. In that

case they did, the alien having six fur coats and other dutiable items

in his car.

To the 'same effect is the ease of Natali v. Day (45 F.2d In). Therein,

a resident alien went to Montreal to assist another alien to enter the

United States. They paid a taxi driver to convey them to the St.

Lawrence River, and an Indian to row them across the river. They

crossed the border without inspection and were apprehended by a

United States officer shortly thereafter. Under those circumstances,

the court held that Natali was properly ordered deported for "entry

without inspection" at other than a designated port of entry—in

expulsion proceedings.

We think the foregoing authorities clearly call for the conclusion

that these aliens, who did not arrive in the United States at a "designated port of entry," were required to proceed by the ordinary route

to the nearest such port for their inspection. According to the list of

such "ports" for these aliens who arrived in the United States by other

than aircraft, Brownsville, Texas, was that "port" (section 151(c)

(2)*.) We hold 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." We do

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• Statement of Organisation_

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not think that the judicial decisions relied on by the Service, infra, call

for a contrary conclusion.

Two of the cited cases (Era parte Chow Chok, 161 F. 627; U.S. v.

Yuen Pale Sane, 183 F. 260) involved Chinese aliens who were under

continuous observation while still in Canada; while crossing the international boundary; and thereafter while proceeding to a point in the

United States quite proximate to the "line," where it became evident

that they did not intend to be inspected at the "nearest port of entry."

The court held that those aliens were properly the subject of exclusion

proceedings because they never enjoyed any freedom from official restraint. That, obviously, is not true in the present case.

The third case quoted by the Service (Jew Lee v. Brough,, 16 F.2d

492) related to Chinese aliens first observed by inspectors in an automobile three miles south of the Canadian border. They were taken into

custody one and a half miles further south, at which time they had been

in the United States about ten minutes. The court therein found proper

the subsequent administrative proceedings which resulted in an order

for their deportation (expulsion), on the following grounds : (1) they

were not in possession of immigration visas; (2) they had entered the

United States at other than a designated port of entry; (8) they were

likely to become public charges; and (4) they were found in the United

States not in possession of certificates of residence required of Chinese

laborers. On such facts, we fail to see how that case supports a conclusion that exclusion proceedings are proper herein. Actually, it supports the contrary conclusion we have reached. The only additional

comment required in this connection is that the portion of the court's

opinion on which the Service seizes was concerned with the quite

diverse question of whether the aliens were entitled to a judicial trial

on the issue of their citizenship, under the Chinese Exclusion Acts

which have long since been repealed. Obviously, no ruling on that

point could have any bearing on the present problem.

The last Chinese case referred to by the Service (Leto Hoy v. United

States, 237 F. 50) involved an indictment for "a conspiracy to commit

an offense against the United States (•enal Code, s. 37) by knowingly

bringing and causing to be brought from Mexico by land into the

United States persons not lawfully entitled to enter or to remain in

the latter country, and by aiding and abetting therein (23 Stat. 117,

a. 11)." It was expressly averred, inter alga, that the aliens were to be

taken to Rock Springs, Wyoming, and elsewhere in this country. The

argument was advanced that the trial court erred in admitting evidence

of acts subsequent to that of bringing the aliens across the "line" between Mexico and the United States. The Service attaches great weight

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to the following language of the Court of Appeals in rejecting that

argument:

Successfully to consummate the unlawful introduction of the prohibited aliens

required more than the mere bringing of them across the line. It was necessary

to evade the immigration officials by transporting them into the interior and

concealing their identity.

We find the case not pertinent here, because of the following additional

statement of the court on this point t

The subsequent assistance by defendants to that end may well have been an

-essential part of the unlawful project It is not necessary that each conspirator

participate in each step or stage of the common general design.

Obviously, in view of this language, the court was not concerned with

tho fact of entry (it apparently conceded it), but with ants subsequent

thereto and related to helping the aliens to remain in this country, as

charged in the indictment. In other words, the indictment charged a

conspiracy consisting of two parts, to wit, introducing aliens into the

United. States, and assisting them to remain herein. The language

under reference was concerned solely with the latter point.

We find no support for the Service view in the fact that under present- day travel conditions aliens can 'proceed by aircraft non stop from

foreign places to cities hundreds of miles inland in this country. We

see no valid reason why they, too, would not be deportable once it becomes evident they did not intend to be inspected at the proper place.

The inhdrent weakness in the Service position on this point is that it

cannot he limited by time or distance and, accordingly, would result

in the loss of controllable primary inspection. But this is precisely

what the Attorney General sought to maintain when he published a

separate and distinct list of "ports of entry" for aliens arriving in the

United States via aircraft (section 1.51(c) (a))

The deferred inspection of aliens at those "ports" is permitted because of adequate control assured by sanctions against carriers, private or commercial, spelled out in the law and the related regulations.°

Obviously, only utter chaos in enforcement of the immigration laws

could result from permitting aliens to proceed to inspection points

they believe will best suit their own interests. The Service action in

-conducting these aliens to Brownsville for inspection despite their

testimony (which the Service asserts it believes) that they would be

inspected in Miami, speaks for itself on this point.

We find it to be of no material significance here that section 287(a)

(2) of the Immigration and Nationality Act (8 U.S.C. 1557) author-

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•Statement of Organization.

a Sections 237, 238, 239;271, 272 and 273.

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izes Service officers to arrest without warrant aliens entering or

attempting to enter the United States in their presence or view, in

violation of law. The reason is that the same statute also authorizes the

arrest without warrant of aliens in the United States in violation of

law, if it appears that they are likely to escape before a warrant

can be obtained. Thus, obviously, the statute provides for the arrest

without warrant of two classes of aliens: (1) those entering or attempting to enter the United Stites; and (2) those who have already

entered the United States, if they are likely to abscond. Accordingly,

the fact that these particular aliens were arrested without warrant

still leaves open the question of whether they were entering or had

already entered the United States.

By the same token, it is of no consequence that subsection (3) of

section 287(a) of the Act authorizes Service officers patrolling the

border to prevent the illegal entry of aliens into the United States

to make "transportation checks" within a "reasonable distance" (defined by 8 CFR 2872 as 100 air miles) from the external boundaries

of the United States, and gives said officers access to private lands

within a distance of 25 miles from such external boundaries. The right

of immigration officers to patrol the border, and while so doing to

arrest aliens without warrant, is an issue separate and distinct from

the question of whether aliens have entered the United States. The

latter is the only problem confronting us here.

8 CFR 287.8 does, as the Service points out, authorize Service officers "on the scene" to make a determination as to whether exclusion

or expulsion proceedings shall be instituted in a given case, depending

upon whether there is prima facie evidence of an actual or attempted

entry into the United States. But the regulation does not make that

initial administrative decision binding on this Board, and our jurisdiction to review the question (8 CFR 3 a mg.) would be otherwise

rendered nugatory. The facts of this case, viewed in the light of the

law and the controlling precedents, convinces us' that the original

"local" judgment on the point was incorrect.

We find it completely irrelevant that Mexico might be willing to

accept these aliens as excludees, but would definitely be unwilling to

accept them as deportees and that, therefore, our decision will place

the Service in the position of having on its hands aliens whom it

cannot deport, because of the political situation in which the United

States presently finds itself vis-a-vis Cuba. In the first place, it is so

well recognized as to obviate further discussion that mere convenience

of enforcement does not justify construction of a statute not warranted

by the language thereof, or the facts involved. Second, the situation

thus outlined is not substantially different from that of countless aliens

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found in the United States after many years for whom no country of

deportation can be found, solely because of the passage of time. The

peculiar situations thus created by the law are problems with which

the Service must contend 6therwise. They certainly do not justify

this administrative tribunal in. reaching a result unwarranted by the

facts of this case applied in the light of the law and the dispositive

interpretations thereof.

Finally, we agree with the Service that it was improper for the

special inquiry officer to take administrative notice of the fact that

the Service does not always institute exclusion proceedings against

Mexican aliens apprehended as close to the border as these aliens were.

It may well be, as the Service urges, that in the Mexican cases referred

to the evidence was clear that the aliens involved had already "made

good" their entry into the United States. But the Important point is

that the answer to the problem presented depends upon the facts

peculiar to this case and to it alone. By the same token we also think

that the special inquiry officer improperly referred in his

, decision to

cases involving other Cuban nationals, as evidence of the employment

of double standards by the Service in determining whether exclusion

or expulsion proceedings are proper in any given instance. Nevertheless, for the reasons hereinbefore set forth, we conclude that his decision

must be approved.

ORDER: It is ordered that the special inquiry officer's decision of

January ,17, 1967, directing that the exclusion proceedings in this case

be terminated be and the same is hereby affirmed.

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