ABEBE

                                                           Interim Decision #2573




                               MATTER OF ABEBE

                             In Exclusion Proceedings
                                      A-22126130

                       Decided by Board March 30, 1977
(1) Applicant applied for admission as a student. He had no visa or other valid entry
   document and his only travel document was a refugee travel document issued by the
  Government of Kenya. He was paroled into the country under section 212(d)(5) of the
  Immigration and Nationality Act for further inspection. His exclusion proceeding was
  postponed pending an asylum hearing. Asylum was denied; the applicant was ordered
  excluded, and he appealed.
(2) 8 C.F.R. 108.2 requires departure to be withheld for 30 days after notification of the
  Department of State of the filing of an application for asylum. It does not require the
  exclusion hearing itself to be so delayed.
(3)Since the Kenya refugee travel document was not issued pursuant to 8 C. F. R. 223a.2, it
  was not a refugee travel document as contemplated in Service regulations and 8 C.F.R.
  236.3(e) which provides that certain holders of refugee travel documents may not be
  excluded was not applicable.
(4)Since applicant was paroled into the United States under section 212(d)(5) of the Act,
  he was not "lawfully in" the United States and therefore Article 32 of the Protocol
  Relating to the Status of Refugees did not apply to him.
EXCLUDABLE:
  Act of 1952—Section 212(aX20) 18 U.S.C. 1182(a)(20)j —Immigrant —no visa
  Act of 1952—Section 212(a)(26) [8 U.S.C. 1182(a)(25)]—Nonimmigrant student
                    nonimmigrant visa

ON BEHALF OF APPLICANT: Harvey Kaplan, Esquire
                                 Greater Boston Legal Services
                                 793 Tremont Street
                                 Boston, Massachusetts 02118
BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members


  In a decision dated November 19, 1976, the applicant was found
excludable as an alien seeking to enter the United States to study
without a nonimmigrant visa or any other valid entry document. The
applicant has appealed from the decision of the immigration judge. The
appeal will be dismissed.
   The applicant is a 22-year-old native of Ethiopia. He fled to Kenya in

                                           171
 Interim Decision #2573

July 1976, apparently fearing persecution for political reasons. He was
granted a refugee travel document by the Government of Kenya pursuant to the U.N. Convention Relating to the Status of Refugees of
1951. On August 17, 1976, he arrived in New York seeking admission as
a student. He was paroled into the United States for inspection in
Boston_ He was thereafter placed in exclusion proceedings.
   On October 8, 1976, the applicant appeared before the immigration
judge and stated that he wished to file an application for political asylum
in the United States. In accordan c e with Operations Instructions
108.1(c), the exclusion hearing was postponed until the District Director
issued his decision on the asylum request. On November 1, 1976, the
District Director denied the applicant's request for asylum and informed
him that the exclusion hearing would be held on November 19.
   Counsel for the alien contends that the District Director denied his
client's request for asylum because be incorrectly assumed that the
applicant could return to Kenya. It is alleged that the District Director
should have considered whether the applicant would be subject to
persecution if he is forced to return to Ethiopia.
   Counsel presumably recognizes that no appeal lies from the decision
of the District Director upon a request, fur asylum. 

. He
instead argues that the immigration judge did not have jurisdiction in
the exclusion proceeding because of the alleged failure of the District
Director to make a proper derision upon the request for asylum. WP
 reject this argument. We also reject counsel's contention that 

 requires the immigration judge to wait for 30 days following the
 date when the District Director notified the Department of State of his
 decision upon the request for asylum before commencing the exclusion
 hearing. That regulation only states that "departure shall not be enforced until 30 days following the date of notification." The conduct of an
 exclusion hearing obviously precedes and is distinct from the enforcement of departure.
    Counsel also contends that the alien was not excludable because of 

(e). That regulation states, in pertinent part:
  Aliens who are the holders of valid unexpired refugee travel documents may be
  ordered excluded only if they are found to be inadmissible under section 212(a)(9), (10),
  (12), (22), (27), (28), (29), or (31) of the Act, and it is determined that on the basis of the
  a.ets for which they are inadmissible there are compelling reasons of national security or
  public order for their exclusion.

  Counsel recognizes that 8 C.F.R. §223a.2 defines "refugee travel
document" as "a document issued by the Service on Form 1-571 in
implementation of Articles 28 of the U.N. Convention of July 28, 1951,
ancl in accordance with the provisions of this part."
  The applicant's refugee travel document was issued by the Government of Kenya, not by the Service.

                                             172
                                                Interim Decision #2573

   Nevertheless, counsel contends that the Service must recognize the
refugee travel document issued in Kenya as the equivalent of one issued
by the Service. Counsel argues that this is compelled by the U.N.
Convention of 1951 which the United States adhered to when it signed
the Protocol Relating to the Status of Refugees of 1967.
   Counsel particularly cites Article 32 of the Convention, which provid's: "The Contracting States shall not expel a refugee lawfully in
their territory save on grounds of national security and public order."
(Emphasis added.)
  It is obvious that the applicant is not "lawfully in" the United States.
Since he was paroled into the United States, he is not even "in" this
country for purposes of immigration law, much less "lawfully in." Section 212(d)(5) of the Immigration and Nationality Act. Leng May Ma v.
Barber, 

 (1958); Kaplan v. Tod, 

 (1925); Low v.
Attorney General, 

 (9 Cir.), cert. denied 

(1973); Luk v. Rosenberg, 

 (9 Cir.), cert. dismissed 

 (1969).
   Counsel's interpretation of Article 32 of the Convention has been
repeatedly rejected. Chim Ming v. Marks, 

 (2 Cir. 1974);
Kan Kam Lin v. Rinaldi, 

 (D. N.J. 1973), aff'd 

 (3 Cir. 1974); Matter of Dunar, 

(BIA 1973).
   ORDER: The appeal is dismissed.




                                   173