Interim Decision #2396
MATTER OF RINA
In Deportation Proceedings
A- 13197621
Decided by Board June 11, 1975
(1) Respondent found deportable for entry without inspection (sec. 241(a)(2)), after conviction for such entry in U.S. District Court. Immigration judge, as matter of discretion, denied voluntary departure.
(2) Definition of entry in section 101(a)(13) of Immigration and Nationality Act applies to
both the criminal provisions of section 275 and the deportation provisions of section 241
(a)(2). (Matter of Barragan-Garibay, Intermin Decision 2315—BIA 1974). The definition of "entry" in section 101(a)(13) was interpreted in Rosenberg v. Plead,
(1963). Such decision is dispositive of any possible Fleuti issue, since respondent was
convicted of illegal entry under the Act. Fleuti is likewise inapplicable to an alien who
enters the Fleuti is likewise inapplicable to an alien who enters the United States
without inspe tion (Matter of Kolk,
Cir. 1974).
(3) Respondent. by reason of his conviction for illegal entry, is collaterally estopped from
relitigating tie issue of illegal entry in these deportation proceedings,
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection
ON BEHALF 01' RESPONDENT: ON BEHALF OF SERVICE:
Warms Conakothekres, Esquire Paul C. Vincent
515 Madison Avenue Appellate Trial Attorney
New York, New York 10022
In a decision dated January 24, 1973, upon a remand from this Board,
the immigration judge found the respondent deportable as charged and
denied his application for voluntary departure. The respondent has
appealed from that decision. The appeal will be dismissed.
The Service has introduced a record of conviction showing that on
November 16, 1969, the respondent was convicted in the United States
District Court for the Northern District of New York for entering the
United States without inspection on November 15, 1969 in violation of
section 275 of the Immigration and Nationality Act 3 (Exh. 2).
The definition of "entry" contained in section 101(a)(13) of the Act is
1 8 U.S.C. 13'25.
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Interim Decision #2396
applicable to both the criminal provisions of section 275 and the deportation provisions of section 241(a)(2). Matter of Barragan-Garibay, 16 I.
& N. Dec. (BIA 1974). We believe that the respondent is collaterally
estopped from relitigating the issue of illegal entry in the present
proceedings. Matter of Barragan-Garibay, supra; Matter of Grandi, 13
I. & N. Dec. '798 (BIA 1971); Matter of Campos, 13 I. & N. Dee. 148
(BIA 1969); Matter of Z ,
(1963), relied upon by counsel, was a case interpreting the definition of "entry" contained in section
101(a)(13) of the Act, the respondent's conviction for illegal "entry"
under the Act is also dispositive of any possible Fleuti issue.
Even if it were necessary for us to look beyond the record of conviction, we would reach the same result. On the record as a whole, we are
satisfied that the Service has established the respondent's deportability
under section 241(a)(2) of the Act by clear, convincing, and unequivocal
evidence. Counsel's allegations of illegal arrest, search, and seizure
have not been'established_ The Fieuti doctrine is clearly inapplicable to
an alien such as the respondent who entered the United States without
inspection in violation of the Act. Matter of Kolk,
(C.A. 9, 1974).
Finally, counsel challenges the immigration judge's discretionary denial of voluntary departure. We agree with the immigration judge that
the circumstances of this case do not warrant a favorable exercise of
discretion.
ORDER: The appeal is dismissed.
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