BARRETO

Interim Decision #2446




                             MATTER OF BARRETO

                            In Exclusion Proceedings
                                     A-20648543
                     Decided by Board November 3, 1975
Where, a short time after applicant• was preinspected by an immigration officer at Toronto, Canada and an admission stamp placed on her immigrant visa and in her
 passport, the officer returned and cancelled both admission stamps and instructed her to
 report to the Chicago Office of the Service upon arrival in the United States, following
 which exclusion proceedings were instituted, the determination of her admissibility in
 exclusion proceedings, rather than deportation proceedings, was proper since applicant
 had not achieved physical presence within the geographical boundaries of the United
 States at the time the admission stamps were cancelled and, thus, had not made an
 "entry" within the meaning of section 101(a)(13) of the Immigration and Nationality
 Act.
EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Inunigrant not in
                                possession of valid immigrant visa.
ON BEHALF OF APPLICANT:                               ON BEHALF OF SERVICE:
  Ralph M. &belly, Esquire                              Paul C. Vincent
  100 N. LaSalle Street                                 Chief Trial Attorney
  Chicago, Illinois 60602


  This case presents a Service appeal from an order of an immigration
judge terminating these exclusion proceedings. The appeal will be sus
tained and the applicant will be ordered excluded and deported from the
United States.
   The applicant is a 29-year-old married female alien, native and citizen
of Mexico, w:ao last sought admission to the United States at Chicago,
Illinois on March 4, 1974 following a preflight inspection at Toronto,
Canada on the same date. Final inspection was deferred, and on April 5,
1974 the applicant received notice that she was being held in exclusion
proceedings on the ground that her immigrant visa was allegedly obtained on the basis of a marriage to a United States citizen which was
not bona fide for immigration purposes (Exh. 1).
   The pertinent facts as they were adduced at the hearing are not in
dispute and can be summarized as follows: The applicant presented
herself to an immigration officer in Toronto, Canada for inspection on
March 4, 1971 in possession of an immigrant ivisa issued by the United
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States consul in Toronto on that date. The applicant's Mexican passport
(Exh. 7) and immigrant visa (Exh. 2) were initially stamped for her
admission to the United States as a class "IR-1" (immediate relative,
spouse) immigrant and she was instructed to be seated in a waiting area
for her anticipated departure flight to Chicago.' A short time later the
immigration inspector, who had retained the applicant's immigrant visa,
returned to the waiting area, took her passport back, and told - her to
wait. At this point the inspector told the applicant that she should
report to the Chicago office of the Immigration and Naturalization
Service on the next day. The record indicates that in the intervening
time the inspector had become suspicious of the validity of the marriage
on which the applicant's visa was based, had crossed out the admission
stamps in her passport and visa with an "X" and had inscribed the
notation "stamped in error" next to both stamps (Exh. 2 & 7). Following
her arrival in the United States the applicant was placed 'in these
exclusion proceedings.
   At the hearing counsel moved to terminate on the grounds that the
act of the immigration inspector in placing the admission stamps in the
applicant's visa and passport and instructing her to await her flight to
the United States constituted an admission of the applicant into the
United States. Counsel maintains that the mere crossing out of the
admission stamps was ineffective to revoke them and that the applicant's right to be in the United States may thus only be questioned in
deportation, rather than exclusion, proceedings.
   The immigration judge, in reliance on our decision in Matter of V—Q—,

 (BIA 1960), accepted counsel's contention and ordered
the proceedings terminated. We find Matter of V—Q—, supra, to be
distinguishable and must reverse the immigration judge's decision.
   Matter of V—Q—, supra, involved a female alien who sought admission
as a returning resident at a pedestrian inspection point located in El
Paso, Texas. She produced her alien registration receipt card (Form
1-151) and was told to "go ahead," or words to that effect. In the next
instant a bystander indentified her as an alleged prostitute, whereupon
the admitting immigration officer sought to recall her for further inspection. At that point the alien had proceeded some 75 or 100 feet beyond




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the check point before the officer succeeded in taking her into custody.
Further questioning followed and she was subsequently subjected . to
exclusion proceedings. On • appeal this Board held that the original
jurisdiction hold and exclude an applicant for admission depends upon
the custody of his person acquired at the time of his arrival, and this
jurisdiction continues until the question of his right to be admitted is
determined ' in his favor, at which point the proceedings before the
examining immigration officer must be considered closed, Matter of
V—Q—, supra: Thus, in V—Q—'s case, jurisdiction to examine her as an
applicant for admission ceased when the immigration inspector communicated his finding of admissibility to her by telling her to "go ahead."
At that point. her "admission" had been accomplished and the alien could
not be recalled for questioning within the exclusion process. Her right to
remain in the United . States could properly' be determined only in
deportation proceedings, Matter of V—Q—, supra.
   The crucial distinction between Matter of V—Q—, supra, and the present case lies in the fact that here the alien was recalled while still on
foreign soil, owing to the peculiar mechanism of "preflight inspection,"
whereas V—Q— had actually crossed into the territorial limits of the
United States when the immigration inspector sought to recall her.' In
Matter of Pierre, 

 (BIA 1973), we surveyed the cases
which have interpreted the term "entry," as defined in section 101(a)(13)
of the Immigration and Nationality Act. 3 We concluded that, for an
"entry," there had to be (1) a crossing into the territorial limits of the
United States, free from restraint, and (2) inspection and admission by
an immigration officer, or (3) actual and intentional evasion of inspection
at the nearest inspection point.
   This appli2ant was inspected by an immigration officer, and an admission stamp was placed on her visa and in her passport. However, the
applicant had not achieved physical presence within the geographical
boundaries of the United States, at the time when those admission
stamps were cancelled.' Thus, she had not made an "entry" into the
United States, and was properly placed in exclusion proceedings when
her admissibility was questioned.
   Looking at the regulation which authorizes preflight inspection
procedures, 8 CFR 235.5(b) (see footnote 1), we find nothing that is
inconsistent with our position. This provision states that ". . the
examination and inspection. . . required by the act and final determina-

  2 See 8 CFR 235(b), which is set forth in footnote 1.
  3 Section 101{a)(13) of the Immigration and Nationality Act provides, generally, that the
term "entry" means "any coming of an alien into the United States, from a foreign port or
place or from an outlying possession. . . ." subject to certain exceptions.
  4 Because of the applicant's lack   of physical prcoence within the UniLeci Mateo, the
question of "freedom from restraint" was not involved.
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tion of admissibility may be made. . . prior to. . . departure at the port
or place in foreign contiguous territory. . . ." "Final determination of
admissibility" is not the equivalent of an "entry." The "final determination of admissibility" in the preflight inspection process does not ripen
into an "entry" until the alien physically enters the United States,
Matter of Pierre, supra, and Matter of V—Q—, supra.
   Having therefore found the applicant to be properly in exclusion
proceedings, we must turn to the question of her excludability on the
ground alleged under section 212(a)(20) of the Act. We are persuaded
that the applicant's own testimony establishes that the marriage on
which her immediate relative immigrant visa is based is not bona fide for
immigration purposes, since she admitted never haVing lived with her
husband, never having consumated the marriage, and not even having
seen or heard from him for a long period (Tr., p. 32). She stated that she
is living in a husband and wife relationship with another man, who is the
father of her child (Tr., p. 32). The applicant's immigrant visa is thus
invalid and she is inadmissible under section 212(a)(20) of the Act. The
decision of the immigration judge will be reversed and the folloWing
order will be entered.
   ORDER: The Service appeal is sustained and the applicant is hereby
ordered excluded and deported from the United States.




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