LI

                                                  Interim Decision #1749




                               MATTER OF    Li
                       In Deportation Proceedings
                                A-15655689
                    Decided by Board Jitay 10, 1967
Section 291 of the Immigration and Nationality Act, as amended, which is concerned with burden of proof, cannot serve as a basis on which to predicate a
  charge of deportability for failure of respondent to meet the burden of proof
  as to the time, place, and manner of his entry into the United States.
CZT.1180E0

  Order : Act of 1932—Section 241 (a ) (2) [8 U.S.O. 1251(a) (2) ]—Entered
                       after being refused permission to land temporarily as
                       a crewman.
 Lodged : Act of 1952—Section 291 [8 U.S.O. 1361 Failure to establish the
                       time, place and manner of entry into the United
                        States as required.
ON BEHALF Or RESPONDENT Thomas A. Church, Esquire
                          94 Bayard Street
                          New York, New York 10018
                           (Brief filed)

    This is an appeal from the decision of a special inquiry officer finding respondent deportable, ordering his deportation to Hong Kong or
 if not accepted there then to the Republic of China on Formosa.
    The record relates to a 39-year-old married male alien, a native of
China and a citizen of the Republic of China on Formosa, who entered
the United States at the port of Philadelphia, Pennsylvania on or
 about November 8, 1982 after having been refused admission by an
 officer of the United States Immigration and Naturalization Service.
 Deportability as charged was not conceded.
    Respondent has been represented by counsel at each step in these
proceedings. At the hearing held before the special inquiry officer
respondent admitted the first three allegations contained in the order
to show cause, to wit, that he was not a citizen or national of the
United States, that he was a native of China and a citizen of the
 Republic of China on Formosa, and that he arrived in the United
States at Philadelphia, Pennsylvania on or about November 8, 1962
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However, upon advice of counsel, he refused to testify relative to the
allegation that at the time he arrived in the United States he was
examined and refused permission to land temporarily as a crewman
(Allegation No. 4) and that he entered the United States at Philadelphia, Pennsylvania on November 8, 1962 after he was refused permission to land temporarily as a crewman (Allegation No. 5). Respondent, after answering several other questions relative to his residence abroad, his marital status, etc. refused, upon advice of counsel, to
answer any further questions. This he had the right to do. It is not
necessary for us in this case to evaluate the effect of his refusal to
testify since deportability on the grounds and for the reasons hereinafter set forth is amply established.
  We hold that the introduction into evidence of the alien crewman's
landing permit and identification card (EL 3) and the crewman's
landing permit (EL 2) were entirely proper. Both forms clearly refer
to the respondent and the crewman's landing permit which is a record
kept in the regular course of business by the Immigration Officer is
clearly marked to show that respondent was refused permission to
enter the United States at Philadelphia, Pennsylvania on November 8,
1962. Respondent did enter the United States at Philadelphia on November 8, 1962 a fact which he conceded by admitting Allegation No.
3 in the order to show cause. The conclusion is inescapable from these
facts that respondent entered illegally.
   Having found respondent deportable under section 241 (a) (2), Immigration and Nationality Act, it is not essential to the disposition of
this ease for us to rule on the contention in the appeal that the lodging
of a charge of deportability under section 291, Immigration and Nationality Act, was improper and invalid. However, for reasons set
forth below we wish to consider this question. In pertinent part section
291 provides as follows:
  In any deportation proceeding under Chapter 5 against any person, the burden
of proof shall be upon such person to show the time, place and manner of his
entry into the United States ... If such burden of proof is not sustained, such
person shall be presumed to be in the United States in -violation of law.
   The precise question is whether a charge of deportation can be
based upon the provisions of section 291. We are unable to find that
this question has even been adjudicated, either judicially or administratively. It would appear thus to be a matter of first impression.
A review of the legislative history of section 291 throws no light
upon this question.
   Section 291 is contained in Chapter 9 of the Act, which chapter is
entitled "Miscellaneous." The specific heading of section 291 is "Burden of Proof." If the provisions of section 291 had been intended to set

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forth grounds for deportation it would seem logical that such provisions would appear in Chapter 5 "Deportation," under section 241
which enumerates specific grounds for deportation. We know of no
deportation charges ever having been made under any section of the
Act other than section 241. Section 291 is concerned with the burden
of proof under certain circumstances and nothing more. Even the
specific wording of the applicable portion of section 291 bears this
out. It states: "In any deportation proceeding tender Ohapter 5 against
any person the burden of proof .. ." (Emphasis supplied.) This wording contemplates that a charge of deportation has been made under
Chapter 5 after which the provisions of section 291 regarding burden of proof come into play. If the alien does not meet such burden
of proof as to the time, place and manner of entry into the United
 States then under section 291 he is presumed to be in the United
States in violation of law. This being the case he would be subject
to deportation under section 241(a) (2), not under section 291.
   We thus hold that section 291 cannot be a basis for a charge of
deportation.
   We conclude that deportation under section 291, Immigration and
Nationality Act, was improperly ordered, but that deportability has
been established under section 241(a) (2), Immigration and Nationality Ad, and the facts supporting deportation are based upon evidence
that is clear, unequivocal and convincing.
   ORDER:it is hereby ordered that the appeal as it relates to section
291 of the Immigration and Nationality Act is sustained, but that the
appeal in relation to section 241(a) (2) of the Act is dismissed and
the decision of the special inquiry officer ordering that respondent be
deported under section 241(a) (2) is affirmed.




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