Interim Decision #2206
MATTER OF ACCARDI
In Exclusion Proceedings
A-5170719
Decided by Board June 4, .1973
(1) An alien brought involuntarily to the United States under authority of a
Presidential warrant issued in connection with extradition proceedings and
paroled under section 212(dX5) of the Immigration and Nationality Act for
prosecution, was properly held for exclusion proceedings where, upon release
from prison, he indicated unwillingness to return to the country whence he
came and an interest in admission to the United States.
(2) While 8 CFR 212.5 authorizes the District Director to parole an alien into the
United States pursuant to the provisions of section 212(dX5) of the Act, the
regulation does not limit such parole authority solely to the District Director.
(3) A grant of parole "indefinitely" is not in contravention of a grant of parole
"temporarily" within the contemplation of section 212(dX5) of the Act.
EXCLUDABLE: Act of 1952—Section 212(aX23) [8 U.S.C. 1182(a)(23)]—Convicted of
a violation of law relating to the illicit possession
of or traffic in narcotic drugs, prior to entry.
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Jack Wasserman, Esquire David L. Milhollan
1707 "H" Street, N.W. Appellate Trial Attorney
Washington, D.C. 20006
This is an appeal from an order of an immigration judge dated
September 19, 1972, finding the applicant excludable under the
provisions of seetion 212(aX22) of the Immigration and Nationality
Act. The appeal will be dismissed.
Applicant is a 70-year-old married male alien, a native of Italy.
He became a naturalized citizen of the United States in 1945. He
was denaturalized in 1953. It has been verified that the applicant
is now stateless (Ex. 12).
• In a decision dated August 18, 1955, the applicant was found
deportable pursuant to section 241(a)(4) of the Act, as an alien who
had been convicted of a Crime involving moral turpitude within
five years after entry. On August 18, 1955, the Board dismissed the
appeal from this derision. A snit. for a deelaratory judgment was
filed in the United States District Court, District of Columbia, on
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Interim Decision #2206
August 23, 1955, which suit was dismissed by stipulation. Applicant was arrested on the basis of an indictment filed on August 18,
1955 with the United States District Court, Southern District of
New York, charging him with the sale and possession of narcotics
and conspiring to sell narcotics. On September 28, 1955, applicant
failed to appear for trial, his bail bond of $75,000 was forfeited, and
a bench warrant was ordered. His immigration bond of $5,000 was
declared breached on October 12, 1955. A warrant for his deportation was issued by the Service on May 10, 1956. However, applicant
was located in Sicily, having left the United States by boat on
March 1, 1956.
Under authority of a Presidential warrant issued in connection
with extradition proceedings, applicant arrived in the United
States on November 12, 1963, by air, in the custody of United
States narcotic agents. The Immigration Service prepared a Form
1-94, which states: "Paroled INDEFINITELY Per Authority of
NERO to custody of Geo BELK, US Narcotics, NY." On August 24,
1964, after trial, he was convicted in the United States District
Court for the Southern District of New York of sale and possession
of narcotics and conspiring to sell narcotics. He was sentenced to
five years on each of three counts running consecutively and fined
$16,000. The Service detainer notice to the Federal House of
Detention, New York, dated September 3, 1964, reads, "alien
paroled into United States for prosecution section 212(dX5)." On
April 4, 1972, applicant was released from his imprisonment at the
Federal penitentiary, Atlanta, Georgia. On April 14, 1972, he was
paroled for the purpose of reporting to the Service at Newark,
New Jersey and was served with Form 1-122, notifying him that
he was being detained for a hearing before an immigration judge
pursuant to the provisions of section 235(b) of the Act because it
appeared that he might be excludable under section 212(a)(23) of
the Act. On the same date, he was reparoled indefinitely pending
conclusion of the hearing in exclusion proceedings.
We reject counsel's contention that the Attorney General is
authorized to parole only those who are applicants for admission.
The power of Congress to determine the conditions under which
aliens may enter and remain in the United States is beyond
question, Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953);
U.S. ex rel. ;'):nctuff v. Shaughnessy,
338 U.S. 537 (1950); Siu Fung
Lute v. Rosenberg,
409 F.2d 555 (C.A. 9, 1969). The legislative
history of the parole provisions of section 212(d)(5) of the Act
reveals that they were enacted in compliance with a recommendation by the Attorney General that he be given the necessary
authority to parole aliens for purposes which are in the public
interest. Among the latter was "purposes of prosecution" (S. Rept.
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Interim Decision #2206
No. 1137, 82d Cong., 2d sess., pp. 12-13) — the very purpose for
which parole was here used. See Matter of K—, 9 I. & N. Dec. 143
(BIA, 1959; A.G. 1961).
The applicant, in .departing from the United States to Italy on
March 1, 1956 while a deportation order was still outstanding,
deported himself; section 101(g) of the Act. There is no dispute over
the fact that the applicant returned to the United States involuntarily on November 12, 1963, pursuant to a Presidential warrant of
arrest. At the time he arrived in the United States, he was not an
applicant for admission. However, as it is empowered, the Service
paroled the applicant for the purpose of prosecution and since he
has never been free from restraint, he has never accomplished an
entry into the United States, In re Dubbiosi,
191 F. Supp. 65 (E.D.
Va., 1961); United States v. Vasilatos,
209 F.2d 195 (C.A. 3, 1954).
During the lengthy prison term served by the applicant, there
was no necessity to serve him with a Form 1-122 to detain him for
an exclusion hearing. He was here in the United States against his
will. However, upon his release from prison, it was determined,
through counsel and from the applicant himself, that he did not
wish to return to Italy. This clearly indicated that the applicant
was interested in admission to the United States. It was then that
this case was set down for exclusion proceedings. Consistent with
the Congressional mandate, the administrative concept of parole,
and the decisions of the courts, he is, in theory of law, on the
threshold of initial entry, U.S. ex rel. Tom We Shung v. Murff,
176
F. Supp. 253 (S.D. N.Y., 1959), affirmed per euriam U.S. ex rel. We
Shung v. Murff,
274 F.2d 667 (CA. 2, 1960); Leng May Ma v. Barber,
357 U.S. 185 (1958). Parole status is not an admission of an alien to
the United States. The delay in setting up the exclusion hearing
did not accomplish an entry. We are satisfied that when the
Service did detain the applicant for exclusion proceedings, he was
an applicant for admission and this was a matter properly subject
to exclusion, rather than expulsion, proceedings.
Counsel claims that section 212.5 of the regulations gives authority only to the District Director in charge of the port of entry
to parole under the provisions of section 212(dX5) of the Act. This is
not so. Although this regulation permits the District Director to
parole under section 212(dX5), it does not limit this authority solely
to the District Director.
The concept of parole referred to by counsel, on appeal, relates
to release from prison, confinement or custody under penal law
and has no relationship to the concept of parole under the
immigration laws. It is counsel's contention that a grant of parole
"indefinitely" is in contravention of the meaning of a grant of
parole "temporarily" contemplated by section 212(dX5). We do not
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Interim yecision rzzuo
agree. The only meaning we ascribe to the use of the word
"temporarily" in this portion of the statute is that the parole
would not be permanent. In view of the intention of Congress in
providing for parole for "purposes of prosecution," we are satisfied
that what the Service meant by use of the word "indefinitely" was
that parole was being granted for an unspecified amount of time
and certainly did not imply permanent parole.
On appeal, counsel implies that since the applicant was brought
into the United States in the custody of United States narcotic
agents and was permitted to pass through the Immigration
Service without detention by the Service for exclusion proceedings, he entered the United States and was not subject to exclusion. The only case which suggests that the bringing of an alien to
this country by authorities other than the Immigration Service
constitutes an entry for exclusion purposes is Blumen v. Haff, 78
F.2d 833 (C.A. 9, 1935), cert. denied
296 U.S. 644 (1935), which was
specifically disapproved in U.S. ex rel. Bradley v. Watkins,
163 F.2d
328 (C.A. 2, 1947), and impliedly disapproved in U.S. ex rel. Ling
Yee Suey v. Spar,
149 F.2d 881 (CA. 2, 1945).
Counsel asserts that since Italy, the country whence the applicant came, will not accept him, applicant's status should be
changed from an excludee to that of an expellee so as to entitle
him to a variety of alternative countries to which he may be
deported under section 243(a). There is no merit to this contention.
Section 237(a) of the Act provides for the immediate deportation of
an excluded alien only "to the country whence he came." It does
not require the consent of the country to which deportation is
ordered. Unlike section 243(a) which pertains solely to deportation
proceedings, section 237(a) does not list a variety of alternative
countries to which deportation may be proper. Interpretation of
the restrictive language of section 237(a) leaves us no option but to
apply its terms as long as they stand, Merton v. Esperdy,
413 F.2d
644 (CA. 2, 1969); U.S. ex rel. Milanovie v. Murff,
253 F.2d 941 (C.A.
2, 1958).
In Klapholz v. Esperdy,
201 F. Supp. 294 (S.D. N.Y., 1961),
affirmed
302 F.2d 928 (1962), cert. denied
371 U.S. 891 (1962), the
court held that a conviction of an alien of a crime involving moral
turpitude while on parole within the country WAR a ground for
exclusion. Accordingly, we find that the conviction of the applicant
while on parole was a proper ground for excluding him.
Hence, the applicant's appeal is without merit and the following
order will accordingly be entered.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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