Interim Decision #2107
MATTER OF GRANDI
In Exclusion Proceedings
A-47556854
Decided by Board December 1, 1971
(1) Applicant is estopped from contending in exclusion proceedings that he
was brought to the United States against his will where, in criminal proceedings for attempted smuggling of heroin into the United States, the
courts considered the same contention and found applicant came to the
United States voluntarily. Applicant, in possession of a visa for entry into
the United States, destined to the United States, voluntarily arriving in
the United States and submitting his luggage for inspection by Customs
officials, must be considered an applicant for admission.
(2) While it may be desirable for a special inquiry officer to advise an indigent alien who desires counsel about the possibility of obtaining free counsel and afford him the opportunity to explore the possibility if he so desires, the failure of the special inquiry officer to do so in the instant case
did not prejudice applicant since counsel could not have altered the facts
established by the criminal conviction.
(3) An adjudication of admissibility in exclusion proceedings is proper even
though parole of the alien has not been terminated.
EXCLUDABLE: Act of 1952—Section 212(a) (23) [8 U.S.C. 1182(a) (23)]—
Convicted of illegal receiving, concealing, and
facilitating the transportation and concealment of a narcotic drug, in violation of 21
U.S.C., sections 173 and 174.
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Tracy E. Mulligan, Esquire (argued) Irving A. Appleman
Stephen Bienieck, Esquire Appellate Trial Attorney
Legal Aid Society of D.C.
666 - 11th Street, N.W.
Washington, D.C. 20001 '
(Brief filed)
Esther M. Kaufman, Esquire (argued)
1823 L Street, N.W., Suite 102
Washington, D.C. 20036
For Association of Immigration and
Nationality Lawyers, amicus curiae
(Brief filed)
798
Interim Decision #2107
The applicant, a 57-year-old male, a native and citizen of
France, appeals from the special inquiry officer's order excluding
him on the ground stated in the caption. The appeal will be dismissed.
The applicant admits that he was convicted of the crime set
forth in the caption. He contends that he was illegally brought to
the United States, that he was never an applicant for admission
to the United States, that he was denied the right to counsel, that
he was not provided with an adequate interpreter, and that the
Service failed to follow its regulations concerning termination of
parole.
On December 13, 1967, the applicant was paroled into the
United States at Rouses Point, New York pursuant to section
212(d) (5) of the Act for an indefinite period in the custody of
United States Customs agents for prosecution as a narcotics
smuggler (Ex. 3). An indictment filed on March 1, 1968, under 21
U.S.C. 173 and 174 charged him with unlawful acts in connection
with a narcotic drug which had been imported into the United
States contrary to law. The applicant entered a plea of not guilty.
On June 14, 1968, he was found guilty after a trial by jury. On
June 28, 1968, he was sentenced to a period of imprisonment (Ex.
2). He is now serving his sentence. The applicant's appeal was
dismissed on April 7, 1970, United States v. Grandi, 424 F.2d 399
(2 Cir., 1970). 1
The opinion of the Court of Appeals reveals the following: The
applicant, a passenger on a train coming from Canada to New
York, was inspected in Canada by a United States Customs officer
on the train. He aroused the officer's suspicions and was told that
he would be further examined upon arrival at Rouses Point, New
York. The officer, who was accompanied by Canadian officers, sat
across the aisle from the applicant. Before entering the United
States, the train stopped at Lacolle, Quebec, where the Canadian
officers left the train. At the criminal trial, the applicant claimed
that at the stop he attempted to get up from his seat and leave
the train, but the United States Customs officer motioned him to
return to his seat. The officer, however, testified that the applicant made no attempt to rise from the seat and leave the train.
Upon arrival at Rouses Point, the officer, directing the applicant
to disembark and carrying some of his luggage, took him to the
United States Customs Office. When an inspection of his luggage
1 At the exclusion hearing, the applicant stated that the legality of his
conviction was still under litigation (p. 5) . He did not elaborate on the
statement.
799
Interim Decision #2107
revealed that heroin was concealed in the false bottom of the suitcase, he was arrested. After his arrest, the applicant, while denying any knowledge of the heroin, agreed to cooperate with Customs officials in the capture of his contact man. He accompanied
the Customs agents to New York City where he was to meet the
contact man. At the trial, applicant contended that since he had
been arrested by the United States Customs official before he entered the United States, and he had entered against his will, the
unlawful importation of the narcotics was done under the direction of the official. The trial court chose to credit the Customs
officer's testimony as to what had happened at Lacolle.
The Court of Appeals found no reason to disturb the finding of
the lower court. The appellate court stated that although the applicant was under surveillance before he entered the United
States, he was not placed in custody and arrested until after his
arrival at Rouses Point.
On December 29, 1970, the Service notified the applicant in
writing to appear before a special inquiry officer for a hearing in
exclusion proceedings to determine whether he was entitled to
enter the United States or whether he should be excluded and deported as one inadmissible under section 212(a) (23) of the Act.
Fie was notified of his right to representation by counsel. The adiice is contained in the body of the notice and is also stamped on
he margin of the notice.
The exclusion hearing was held on January 13, 1971, at the
ederal institution where the applicant is serving his sentence. An
nterpreter in the French language was used. The interpreter
bated that his knowledge of French was sufficient for communiation with the applicant. The applicant was told that if there
as anything he did not understand, he was to advise the special
iquiry officer (p. 1).
The special inquiry officer told applicant that he had the right
counsel. The applicant stated he understood this but he had no
oney to pay for one. When asked whether he was willing to proed without a lawyer he answered, "Yes, there is nothing else I
n do." (p. 3)
The hearing was short. The Service trial attorney stated that
December 13, 1967, the applicant had been detrained by
cited States Customs agents at Rouses Point, New York beuse they believed he was bringing narcotics into the United
ates, that he was then in possession of a visitor's permit, and
it he was paroled in custody of the agents for prosecution (pp.
3). The applicant testified that he had attempted to enter the
800
Interim Decision #2107
United States on December 13th (p. 4), that he was paroled into
the United States (p. 4), that he believed he was brought into the
country illegally (p. 5), and that he used another name when he
attempted to enter (p. 6).
The special inquiry officer, relying on applicant's admission
that he had attempted to enter the United States and that he had
been paroled (p. 2, special inquiry officer's opinion), held that
the applicant was inadmissible by reason of the conviction. The
special inquiry officer ordered applicant's exclusion and deportation.
Counsel and amicus curiae contend that an independent evaluation of the facts would show that applicant had been brought to
the United States against his will by the United States Customs
officer. Amicus curiae requests that the hearing be reopened to
explore this issue. Since the courts considered applicant's claim
that he had been arrested in Canada and brought to the United
States against his will, and since the courts found that the applicant came to the United States voluntarily, we are bound by the
finding, Matter of Campos, Interim Decision No. 1942 (BIA,
1969). Applicant, in possession of a visa which would permit his
entry into the United States, destined to the United States, voluntarily arriving in the United States, submitting his luggage for
inspection by the Customs officials, must be considered an applicant for admission. All arriving aliens must be examined by an
immigration officer, 8 U.S.C. 1225. On the basis of these facts, we
must conclude there was an actual or at the least an implicit application for admission which is sufficient to warrant an adjudication of admissibility in exclusion proceedings. Since the special
inquiry officer had jurisdiction of the application, and since the
record established the applicant is clearly inadmissible, we see no
reason to change the special inquiry officer's decision.
Title v. United States, 322 F.2d 21 (9 Cir., 1963), is not inconsistent with our reliance on the binding effect of the courts' findings in the criminal case. In
Title, supra, the Service sought to
deport Title on the ground that he had been a member of an organization which sought the overthrow of the Government by
force and violence. To establish the organization was one seeking
the overthrow of the Government by force and violence, the Service relied upon the fact that Title had been denaturalized in a judicial proceeding in which his membership in the organization
and its nature had been established. The court reviewing the deportation order held that the Service could not rely on the judicial determination in the denaturalization case, but had to prove
801
Interim Decision #2107
in the deportation case that the organization was one which
sought the overthrow of the Government by force and violence.
There are several important distinctions: Title was a deportation
case—one where the burden of proof was on the Service; the case
before us is an exclusion case—one where the burden of establishing admissibility is on the applicant for admission. Title did
not present evidence in his denaturalization case. The applicant
did. Title was bottomed on the specific wording of a statutory
provision (section 242 (b) of the Act) which is not involved in the
instant case. Finally, as the court pointed out, after the denaturalization, the Supreme Court held the quality of membership in
the organization was an important factor—this aspect had not
previously been deemed of importance and the Service had not
shown the existence of this factor in the denaturalization case.
Counsel's contention that applicant's presence in the United
States is in violation of the diplomatic protocols of the United
States and Canada and Article 2 of the United Nations Charter
because he was brought here by force need not be discussed in
view of the position we have stated in the previous paragraphs. 2
Amicus curiae contends that the applicant was denied his right
to counsel at the exclusion hearing. She states that the special inquiry officer, having knowledge of the applicant's desire to be
represented and his financial inability to pay for counsel, should
have advised him that it might be possible to obtain representation even though he had no funds and should have given applicant time for that purpose. She points out that there was no
pressing need for an immediate hearing since the applicant was
serving a sentence with many years to go. She cites Ka Cheung
rp v. INS, unreported (1 Cir., No. 7802, February 18, 1971). She
states that if applicant had been represented, the involuntariness
)f his presence in the United States would have been established
st the hearing. We agree with counsel that the special inquiry officer could well have informed the applicant about the possibility
if obtaining free counsel and could well have given him the op-
)ortunity to explore the possibility if he so desired. However, we
to not find that the special inquiry officer's failure prejudiced the
2 A person who presents himself at a port of entry, "whether voluntarily
ar otherwise" is amenable to the exclusionary proceedings prescribed in the
kct, D'Agostino v. Sahli, 230 F.2d 668, 671 (5 Cir., 1956). Once an applicaion for admission is made, the applicant cannot withdraw the application as
matter of right. Administrative authorities may permit a withdrawal as a
liscretionary matter, Matter of Vargas-Molina, Interim Decision No. 2069
BIA, 1971).
802
Interim Decision #2107
alien because we do not see how counsel could have altered the results here. The applicant's conviction is a fact. It exists. The voluntariness of applicant's application for admission, as we have
pointed out, is an issue foreclosed by decisions in the criminal
matter. Moreover, applicant's general level of understanding is
such that he clearly understood the purpose of the exclusion hearing and what was happening at it. Finally, there is no requirement that the Service provide counsel for the applicant at Government expense, Aalund v. Marshall, 323 F. Supp. 1380 (E.D.
Tex., 1971). In view of these factors, we do not think that Ka
Cheung Ip, supra, requires a reopened hearing at which applicant
will be represented.
Amicus curiae contends that the applicant was denied his right
to effectively present evidence on his own behalf because of the
inadequacy of the interpreter. We have carefully examined the
record in light of the contention. The record on a whole reveals
that the applicant's answers were responsive, that they were specific, and that they consisted of more than categorical answers.
The applicant has furnished no specific instance of a misunderstanding of a question or of an answer improperly set forth in
the record.
Amicus curiae contends that this exclusion proceedings is premature because applicant's parole was not terminated in accordance with the regulations. She points out that the applicant was
paroled into the United States, that 8 CFR 212.5 (a) requires that
parole shall be terminated upon written notice to the alien when
the purpose for which parole was authorized has been accomplished, and that there is no showing that the parole was so terminated. She contends that the parole status still continues and it
is therefore premature to hold an exclusion hearing.
Even if applicant's parole has not been terminated, an adjudication of his admissibility in exclusion proceedings is proper.
Parole is merely an alternative to detention at the border. It "is
simply a device through which needless confinement is avoided
while administrative proceedings are conducted," Leng May Ma
v. Barber, 357 U.S. 185, 190 (1958). Parole bestows no additional
rights upon an alien, Matter of Dabiran, Interim Decision No.
2051 (BIA, 1970). A person detained at the border can be given
an exclusion hearing. A person who has been ordered excluded
may be paroled while his appeal is being considered. We see no
reason why a parolee cannot be given an exclusion hearing. In
the instant case there is good reason to continue applicant in his
status as a parolee. He is serving a prison sentence. He will be in
803
Interim Decision # 2107
the United States for some time to come whatever the outcome of
the exclusion case. The status of a parolee is the only one legally
available. 3
ORDER: The appeal is dismissed.
3 Service v. Dulles, 354 U.S. 363 (1957), and Accardi v. Shaughnessy,
347
U.S. 260 (1954), cited by counsel on the necessity of an administrative
agency following its own regulations are inapposite. In the cited cases, the
alleged deviations from the regulations were prejudicial. This is not the case
here.
804
