Interim Decision #2533
MATTER OF LOULOS
In Exclusion Proceedings
A-22126158
Decided by Board September 16, 1976
(1) Applicant, a native and citizen of Greece, entered the United States as a crewman in
1970 and remained unlawfully until May 1976 when he departed for Costa Rica in order
to obtain an immigrant visa at an American Consulate. Subsequently he was deported
to the United States by the Costa Rican authorities. He was not brought to this country
by agents of the United States nor did the United States authorities expressly or
impliedly consent to his deportation from Costa Mica to this country. He arrived on
August 18 or 19, 1976, without a visa, passport or other travel document authorizing his
entry into this country. Although he possessed the financial means to leave the United
States when he arrived, he did not choose to do so. Following deferred inspection and a
hearing, applicant was found excludable under section 212(a)(20) of the Immigration and
Nationality Act as an immigrant who was not in possession of a valid immigrant visa.
(2) Tinder the circumstances, an exclusion prneeecliug was the proper forum for this case
because applicant failed to meet his burden under section 214(6) of the Act; applicant
was not brought to the United States against his will by agents of the United States or
with the consent of the United States Government; and applicant's past actions with
respect to remaining in the United States indicated that he was in fact an applicant for
admission.
EXCLUDABLE:
Act of 1952--Section 212(a)(20) [S U.S. C. 1182(a)(20)]--Immigrant not in possession of
valid immigrant visa
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Jack Wasserman, Esquire George Indelicato
1707 "H" Street, N.W. Appellate Trial Attorney
Washington, D. C. 20006
The applicant is a 24-year-old alien, a native and citizen of Greece. He
last arrived in the United States on August 18 or 19, 1976, at New York
City. Inspection was deferred pursuant to section 235(b) of the Immigration and Nationality Act. A notice of hearing (Form 1-122) (Ex. 1)
was delivered to the applicant by the trial attorney on August 24, 1976.
An exclusion hearing was held on August 24, 1976. Subsequent to that
hearing, the immigration judge found the applicant excludable under
section 212(a)(20) of the Act as an immigrant who was not in possession
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Interim Decision #2533
of a valid immigrant visa. The applicant has appealed from that decision.
The appeal will be dismissed.
On August 19, 1976, the applicant made a sworn statement to the
Service (Ex. 2). In his affidavit, the applicant stated that he was a
native and citizen of Greece who was "not in possession of any visa for
the U.S."; that he last entered the United States in January, of 1970 as a
crewman; that he remained in the United States until May of 1976; and
that he then departed for Costa Rica. He indicated that he went to
Costa Rica in order to obtain "an immigrant visa from an American
consulate abroad"; and that after two and one-half months in Costa Rica,
the Government of Costa Rica deported him to the United States. The
applicant further stated that he arrived in the United States on a Pan
American flight without a visa; and that the carrier desired that he
proceed from the United States to Greece as an alien in tran sit without a
visa. He indicated that he could not go to Greece because his passport
had expired; but that he would have proceeded to Greece if he had a
valid travel document.
At the hearing, the trial attorney and the applicant (through counsel)
stipulated that the applicant last arrived in the United States at John F.
Kennedy Airport located in New York City on August 18 or 19, 1976, as
a passenger aboard Pan American Flight 542 after having boarded at
San Jose, Costa Rica; and that the applicant was not admitted to the
United States. The parties also stipulated that the applicant was born in
Greece on April 15, 1952; that he is a citizen of Greece; that neither of his
parents was ever a citizen of the United States; that the applicant had
never been admitted to the United States as a permanent resident alien;
and that at the time of his last arrival, the applicant did not present a
visa, passport or travel document. Both parties further agreed that the
applicant was deported from Costa Rica to the United States; and that
the applicant has no close family ties in the United States. The immigration judge noted that, upon arrival in the United States, the applicant
indicated that he had a $1,000 bank check made out to his order. Upon
the request of the trial attorney and counsel for the applicant, the
immigration judge announced that he would not consider the allegation
contained in the notice of hearing (Ex. 1) to the effect that the applicant
is likely to become a public charge.
Counsel contended at the hearing that the applicant was brought to
the United States involuntarily by virtue of his deportation by the
Government of Costa Rica; and that the applicant is not now applying for
admission to the United States, The immigration judge noted that
counsel for the applicant specifically declined to apply for a waiver of
entry documentation, visa and passport. Counsel further contends that
au alien who is involuntarily brought to the United States should be
released from custody and be allowed to depart the T.Tnited States
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Interim Decision #2533
voluntarily. At oral argument, counsel maintained that the applicant did
not make an entry into the United States; that the applicant was not
applying for admission to the United States; that he was brought to the
United States involuntarily; and that an exclusion proceeding is inappropriate. Counsel submits that the applicant must be given the opportunity to depart the United States voluntarily, and if he fails to do so,
then it would be appropriate for the Government to commence deportation proceedings.
Counsel contends that the applicant did not effect an entry into the
United States within the meaning of section 101(a)(13) of the Act. An
alien does not effect an entry into the United States unless, while free
from actual or constructive restraint, he crosses into the territorial
limits of the United States and is inspected and admitted by an immigration officer or actually or intentionally evades inspection at the
nearest inspection point. Matter of Pierre et al., Interim Decision 2238
(BIA 1973). In this case, the applicant's entry into the United States
(upon his arrival in New York City) was thwarted during an inspection
by an immigration officer when the applicant was unable to produce a
valid unexpired immigrant visa. We find that the applicant was not
admitted, and, therefore, did not effect an "entry""into this country.
In support of his contention that the applicant must be given the
opportunity to voluntarily depart from the United States, counsel cites
Un.ited States ex ?el. Bradley v. Watkins, 163 F.2d 328 (2 Cir. 1947);
United States ex rel. Paetau v. Watkins,
164 F.2d 457 (2 Cir. 1947); and
United States ex rel. Sommerkamp v. Zimmerman,
178 F.2d 645 (3
Cir. 1949). In the Bradley case (a habeas corpus proceeding), the court
held that an alien seized by the United States Navy in Greenland,
brought to the United States against his will, and interned as an alien
enemy for security reasons could not be deported as an "immigrant"—at
lemaAt, not before he had been afforded an opportunity to depart voluntarily. The theory of the Bradley decision is that an alien brought here
by agents of the United States against his will is not an "immigrant"
within the meaning of the immigration laws. In the Sommerkamp case,
the facts related to an alien who was seized by the United States Army
in Guatemala at the outbreak of World War II, and brought to the
United States against his will and interned for security reasons. The
alien's internment was subsequently terminated, and he was given the
opportunity to depart voluntarily but he did not do so. In a habeas
corpus proceeding, the court held that the subsequent presence of the
alieln in the United States was "voluntary," and therefore he had made
an "entry" and was subject to deportation as an immigrant. In the
Pa.etau case (also a habeas corpus proceeding), the facts related to an
a:Nan who was deported to Germany by Guatemalan authorities and
placed on an airplane bound for the United States. The Guatemalan
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Interim Decision #2533
Government had requested other countries to permit the alien's passage
to Germany. The alien, who applied for admission to the United States,
was detained and ultimately held in deportation proceedings as an
immigrant who had made an illegal entry. The court applied the rationale of the Bradley ease, and held that it made no difference whether an
alien is forcibly brought into this country directly by the United States
authorities or whether such action is accomplished by a foreign government with the consent of the United States. The court was of the opinion
that the United States authorities accepted the deportation of the alien
from Guatemala, and supported that action when they took steps
against the alien for his asserted illegal entry in order to insure his
return to Germany_ The deportation order was reversed, the writ was
sustained, and the alien was released from the custody of the Service.
The rationale that has been consistently expressed by the courts is
that an alien who is involuntarily brought to this country by agents of
the United States is not considered to be an "immigrant" within the
meaning of section 101(a)(15) of the Act. See also United States ex rel.
Ludwig v. Watkins, 164 F.2d 456 (2 Cir. 1947). This rationale has been
held to be applicable not only to a situation in which agents of the United
States directly bring an alien into the United States against his will, but
also to a situation in which United States authorities consent to such an
action by a foreign government. See United States ex rel. Paetau v.
Watkins, supra. It is apparent that the holdings of these cases are
predicated upon the direct participation of United States authorities in
effecting the removal of an alien from another country to the United
States against his will or upon the consent of United States authcrities
to such action by the government of a foreign country. We find that the
ease at hand is factually distinguishable from the above cited cases. The
applicant was not brought to this country by agents of the United States
against his will. Further, United States authorities did not expressly or
impliedly consent to his deportation to the United States by the Government of Costa Rica. We therefore conclude that the cases cited by
counsel are inapplicable to this case.
Counsel's contention that Vassilios Loulos is not an applicant for
admission is without merit. It is clearly implied in the applicant's present and past conduct that he is seeking admission to the United States.
We find that the applicant resided in the United States unlawfully for
more than six years before he voluntarily departed this country for
Costa Rica in a improvident attempt to legalize his status by obtaining
an immigrant visa. Further, we find that upon his arrival in the United
States following his deportation from Costa Rica, the applicant had the
freedom and the financial means to arrange for his transportation to
Greece, his native country, but chose not to do so. Instead, he decided to
remain in the United States. His statement that he did not go on to
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Interim Decision #2533
Greece because he did not possess an unexpired passport is curious since
he also did not have proper documentation to enter the United States.
Section 214(b) of the Act provides that every alien shall be presumed
to be an immigrant until he establishes to the satisfaction of the Service,
at the time of application for admission, that he is entitled to nonimmigrant status.
At the time of his inspection, the applicant did not present any
documentation which would entitle him to enter the United States. We
conclude that an exclusion proceeding was the proper forum in this case.
We further conclude that the applicant failed to sustain his burden
under section 214(b) of the Act. Therefore, he must be presumed to be
an immigrant and is excludable under section 212(a)(20). Accordingly,
the appeal will be dismissed.
ORDER: The appeal is dismissed.
Participating Members: Milhollan, Wilson, and Maniatis.
.
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