Interim Decision #2217
MATTER OF NESTOR
In Exclusion Proceedings
A-20181729
Decided by Board August 16, 1978
(1) In the absence of a showing that applicant was prejudiced by her waiver of
counsel at the exclusion hearing, the order for her exclusion is sustained on
appeal since she is clearly inadmissible to the United States.
(2) A claim of political asylum in exclusion proceedings should be addressed to
the district director and not to the Board of Immigration Appeals or immigration judge since parole under section 212(dX5) of the Immigration and Nationality Act, the form of relief available to asylum claimants in exclusion
proceedings, is within the exclusive jurisdiction of the district director.
EXCLUDABLE; Act of 1952 Section 212(a0(20) . [8 1182(a)(29)]—No immigrant visa.
ON BEHALF OF APPLICANT: Howard W. Dixon, Esquire
Legal Services of Greater Miami, Inc.
395 N.W. First Street
Miami, Florida 33128
This is an appeal from an order of an immigration judge
excluding the applicant from admission to the United States. The
appeal will be dismissed.
The applicant is a 32-year-old unmarried female alien, a native
and citizen of Haiti, who arrived at Miami, Florida on April 5, 1973
and applied for admission. After a hearing before an immigration
judge on April 26, 1973, at which she admitted that she came here
to work and never had a visa to come to the United States, the
applicant was found to be a visaless immigrant and she was
ordered excluded.
On appeal, counsel urges that the applicant did not clearly
understand that she was waiving her right to counsel; that the
Immigration and Naturalization Service should have provided
counsel; and that section 292 of the Immigration and Nationality
Act is unconstitutional insofar as it fails to require free counsel for
indigents. Apart from the fact that we may not consider a
challenge to the constitutionality of the statutes we administer,
counsel has failed to indicate how the applicant was prejudiced by
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Interim Decision #2217
the absence of counsel. As an alien who concededly lacks any
document authorizing her admission to the United States, the
applicant is clearly inadmissible. The only relief available to her is
enlargement on parole under section 212(dX5) of the Act, and that
relief has already apparently been granted by the Service's District Director. In citing Woodby v. INS,
(1966), counsel
misapprehends the nature of these proceedings. That case dealt
with the burden of proof in deportation proceedings, which is on
the Service. In these exclusion proceedings, on the other hand, the
burden of proving admissibility is on the applicant. See section 291
of the Act.
The argument that the applicant will be endangered for political
reasons if returned to Haiti is addressed to the wrong forum. In
exclusion proceedings, parole under section 212(dX5) of the Act is
the form of relief available to asylum claimants. That power has
been delegated by the Attorney General exclusively to the Service's District Directors, and not to its immigration judges or to this
Board, Matter of Conceiro, Interim Decision No. 2183 (B IA, 1973),
habeas corpus dismissed, Conceiro v. Marks,
