PIERRE

                                                    Interim Decision #2238




                         MArlhat OF PIERRE et al.

                          In Exclusion Proceedings
                                A20182758-763

                    Decided by Board October 5, 1973
(1) An alien has not effected an entry into the United States unless, while free
   from actual or constructive restraint, he has crossed into the territorial limits
   of the United States and has been inspected and admitted by an immigration
   officer or has actually and intentionally evaded inspection at the nearest
   inspeftion point.
(2) Respondents, Haitian refugees, who, upon arrival at the port of West Palm
   Beach, Florida, remained on board their vessel awaiting inspection by immigration officers but who were not admitted by such officers, did not make an
   entry into the United States. Consequently, exclusion proceedings are proper
   in their cases and relief under section 243(h) of the Immigration and Nationality Act, as amended, is, therefore, unavailable to them.
EXIIMIDA PLR.   Act of 1952—Section 212(a)(20) ta U.S.C. 1182(a)(20)1—Immigrants—no visas.

ON BEHALF•OF APPLICANTS:                          ON BEHALF OP SERVICE:
 Donald I. Bierman, Esquire                          Irving A. Appleman
 Bierman & Sonnett, P.A. •                           Appellate Trial Attorney
 600 Roberts Building
 28 West Flagler Street
 Miami, Florida 33130


  The aliens, hereafter referred to as "applicant," appeal from the
May 24, 1978 decision of the immigration judge in which he found
them excludable under section 212(a)(20) of the Immigration and
Nationality Act, and refused to hear their claims of persecution
under section 243(h) of the Act. The appeal will be dismissed.
  The principal question to be decided is whether these eases are
properly in exclusion rather than deportation proceedings. The
applicants are all natives and citizens of Haiti. They left Haiti in a
small boat, which fell into distress and was towed into West Palm
Beach, Florida, a designated port of entry, 8 CFR 100.4(c)(2) by an
American vessel on May 20, 1973. Upon being questioned, they
informed the captain of the American vessel that they had no
entry documents. Then they waited on board for the arrival of

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immigration officers in the hope of being allowed to remain in the
United States as political refugees. Because they did not appear to
the immigration officers to be clearly and beyond a doubt entitled
to land, the matter was referred to the immigration judge for
further inquiry in accordance with section 235(b) of the Act. The
applicants were held in custody until June 15, 1973, when they
were paroled in the custody of a group of ministers. Their applications for political asylum were denied by the District Director after
he had consulted with the Office of Refugee and Migration Affairs
of the Department of State.
   The applicants contend thay they should be heard in deportation (i.e. expulsion) rather than exclusion proceedings. Therefore,
the key question is whether or not an entry was made, since it is
clear that they did not effect an "entry" into this country,
exclusion proceedings were proper, whereas the proceedings must
be in deportation if the aliens made an "entry."
   Section 291 of the Immigration and Nationality Act provides
that any person who applies for admission to the United States
must establish that he is not subject to exclusion. An alien who
has effected an entry is not subject to exclusion, but rather to
deportation. Section 291 further provides that in deportation
proceedings the respondent must bear the burden of showing the
time, place, and manner of his entry into the United States. It
follows, therefore, that the responsibility for establishing whether
an entry has been made rests on the alien.
  The courts have found it necessary to interpret the term
"entry," which is now defined in section 101(a)(13) of the Act as
"...any coining of an alien into the United States, from a foreign
port or place or from an outlying possession...." A survey of the
many cases which have treated this subject over the years leads to
the following conclusion: An "entry" involves (1) a crossing into
the territorial limits of the United States, i.e. physical presence;
plus (2) inspection and admission by an immigration officer, United
States v. Vasilatos, 

 (C.A. 3, 1954); Lazarescu v. United
States, 

 (C.A. 4, 1952); or (3) actual and intentional
evasion of inspection at the nearest inspection point, U.S. ex rel.
Giaeone v. Corsi. 

 (C.A. 2, 1933); Morini v. United States,

 (C.A. 9, 1927), cert. den. 

 (1928); Lew Mop v.
United States, 

 (C.A. 8, 1916); Matter of Estrada-Betancourt, 

 (BIA 1967); Matter of
Albuerne-Urquiza, Al? 334 264, unreported decision (BIA October
12, 1967); coupled with (4) freedom from restraint, United States v.

 Lazarescu v. United States, supra. In all of the
above cases these conditions were satisfied and an entry was
effected.

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  In contrast, the courts have held that no entry is made when
the alien is taken into custody upon his arrival at an American
port (even though he may possess a valid immigrant visa), taapholz v. Esperdy, 

 (CA. 2), cert. den. 

(1962). There is no entry when the alien is under official restraint,
even after his ship has arrived at port and he has been inspected
and given a conditional landing permit, in re Dubbiosi, 

 (E.D. Va. 1961). The restraint may take the form of
surveillance, unbeknownst to the alien; he has still not made an
entry despite having crossed the border with the intention of
evading inspection, because he lacks the freedom to go at large
and mix with the population, Ex parte Chow Chok, 

 (N.D.N.Y.), aff'd 

 (CA. 2, 1908).
   Parole is not an admission, section 212(dX5), Immigration and
Nationality Act, and therefore does not constitute an entry, Leng
May Ma v. Barber, 

 (1958); Vitale v. INS,

 (C.A. 7, 1972); Siu Fung Luk v. Rosenberg, 

 (C.A. 9), cert. denied 

 (1969); U.S. ex rel.
Tom We Shang v. Murff, 

 (S.D.N.Y. 1959), aff'd
 

 (CA. 2, 1960). Moreover, when an alien crosses the
border, intends to present himself for inspection, and follows the
 ordinary path from the international line to the nearest inspection
point, he has not effected an entry, Thack v. Zurbrick, 

 (C.A. 6, 1931). A fortiori an entry is not made when an alien
merely crosses into the territorial waters of the United States
without landing and without evading inspection.
   In the present case, the aliens arrived at port but did not land.
Instead, they waited on board their vessel until they could be
inspected by immigration officers. While they may have crossed
into the territorial limits of the United States, they were not
admitted by immigration officers, nor did they intentionally evade
inspection. On the contrary, they requested inspection (Tr. P. 12).
The captain of the American vessel has no authority to admit
them. Indeed, he would have been subject to penalties if he had
permitted them to land, sections 271 and 273, Immigration and
Nationality Act.
   Counsel relies heavily on Matter of Estrada-Betancourt, supra, in
which we found that an entry had been made and that, therefore,
deportation proceedings rather than exclusion proceedings were
proper. The aliens in that case did not arrive at a "designated port
of entry." We stated that they "were required to proceed by the
ordinary route to the nearest such port for their inspection," and
held 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,"' id.

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 at 194. That the applicants in the present case remained on board
 and waited for the immigration inspectors to come to them does
not alter the fact that they did not evade or seek to evade
inspection at the nearest inspection point.
   Accordingly, we find that the applicants have not sustained
their burden of establishing that an entry was made. In Beauvil
 v.Ahrens, 

 (C.A. 5, 1964), on substantially similar facts,
the United States Court of Appeals held that exclusion proceedings were proper." Consequently, we agree with the immigration
judge that the proceedings are properly in exclusion, not in
 deportation.
   Since these are exclusion proceedings, the immigration judge
correctly refused to hear the applicants' claims of persecution
under section 243(h) of the Act. That provision by its terms applies
to aliens "within the United States" and not to those who, like the
applicants, seek admission. Section 243(h) relief is thus unavailable
to applicants in exclusion proceedings, Leng May Ma v. 

; U.S. ex rel. Tom We Shung v. 

.
   Applicants for admission and excluded aliens have the alternative remedy of presenting evidence concerning feared persecution
to the District Director and requesting parole pursuant to section
212(dX5) and 8 CFR 212.5(a). Cf. Glavic v. Beeehie, 

 (S.D. Tex. 1963), affd 

 (CA. 5, 1964) (where a
crewman has the opportunity to seek parole under section
212(dX5), a hearing under section 243(h) is not required by the Act).
The applicants have availed themselves of this opportunity, but
the District Director denied their requests for political asylum
after consultation with the Office of Refugee and Migration Affairs, Department of-State. Neither the immigration judge nor this
Board is empowered to grant parole pursuant to section 212(dX5)
of the Act, Matter of Conceiro, Interim Decision No. 2183 (BIA 1973),
affd Conceiro v. Marks, 

 (S.D.N.Y. 1973).
   The applicants claim that not to allow them to be heard in
deportation proceedings is a violation of due process under the
Fifth Amendment of the United States Constitution. Similarly,
they assert that it is a violation of their rights to due process and
equal protection of the laws under the Fifth and Fourteenth
Amendments for the immigration judge to refuse to hear their
persecution claims. They insist further that their exClusion and
subsequent deportation to Haiti would constitute cruel and unusual punishment, and would violate their rights under the Eighth

  1 The facts in the Beauvil case are fully set forth in the unreported Board
decision, Matter of Haiti-an Refugees, Ala 322 3/1-57, 551-Aft (BIA. December 3,
1963).

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Amendment of the United States Constitution. These claims were
advanced in order to preserve them in the event that appeal to the
courts should become necessary. The applicants acknowledge that
it is not within the province of this Board to pass upon the
constitutionality of the statutes we administer, Matter of L—, 

, 557 (BIA 1951).
  Congress has provided that a hearing be given to those whose
right to enter is in dispute, sections 235(b) and 236, Immigration
and Nationality Act. We have determined that the hearing held
before the immigration judge in the present ease was fairly
conducted. We agree with the decision of the immigration judge
that the proceedings were properly in exclusion, and that he was
therefore without jurisdiction to hear the persecution claims
under section 243(h).
   Counsel has requested that the case be certified to the Attorney
General pursuant to 8 CFR 3.1(h). We see no reason for certification and therefore deny counsel's request.
   ORDER: The appeal is dismissed.




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