Interim Decision #2653
MATTER OF YAM
In Deportation Proceedings
A-15950259
Decided by Board May 30, 197:8
(1) An alien does not effect an entry into the United States unless, while free from actual
or constructive restraint, he crosses into the territory of the United States and is
inspected and admitted by an immigration officer, or actually or intentionally evades
inspection at the nearest inspection point.
(2) An alien found floating in Niagara River, and brought by police while unconscious to a
hospital in the United States where he was turned over to the Border Patrol, did not
effect an entry.
Deportation proceedings ordered terminated as to alien fomnd in Niagara River and
brought into the United States while unconscious, since exclusion was the proper
procedure.
CHARGES:
Order. Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1--Entered without inspection
Lodged: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)I—At time of entry, within
one or more classes of aliens excludable by the law existing at
the time of such entry, to wit, aliens who have been arrested
and deported, consent to apply or reapply for admission not
having been granted by the prope=r authority under section
212(a)(17) of the Act
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Jules E. Coven, Esquire George Masterton
Lebenkoff & Coven Appellate Trial Attorney
One East 42nd Street
New York, New York 10017
BY: Maguire, Acting Chairman; Maniatis, Appleman, and Farb, Board Members
This case presents an appeal from a decision of the immigration judge
on September 29, 1977, finding the respondent deportable and ordering
his deportation to Hong Kong on the charge contained in the Order to
Show Cause and the charge contained in the Additional Charges. The
appeal will be sustained.
The respondent is a. native and citizen of Chins, who last entered the
United States in August 1977, allegedly without inspection by an immi-
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Interim Decision #2653
gration officer. He had previously been deported from this country in
1965, 1969, and, following denial of his motion to reopen these proceedings in order to apply for -withholding of deportation, again in June 1977.
lie failed to obtain permission from the proper authority last August to
reapply for admission to this country after his third deportation two
months earlier.
About nine or ten o'clock on the evening of August 23, 1977, two
fishermen discovered the respondent floating after dark in the Niagara
River, near Lewiston, New York. They pulled him into their boat about
100 feet off the American shoreline. One of the fishermen, Kenneth
Dunkin, testified that he did not know the exact location of the International Boundary Line, but that the respondent was then unconscious
(Tr. p. 7). The two fishermen radioed ashore for assistance and were
met at the dock by the Lewiston Chief of Police, who likewise did not
know the exact location of the International Border (Tr. p. 17). The
latter testified that the respondent was then semiconscious and being
administered oxygen. He followed the ambulance to Mount St. Mary's
Hospital, calling en route for a Border Patrol Agent to meet him there
because he was suspicious of an illegal entry (Tr. p. 14). The Chief of
Police also testified that he took custody of a black garbage bag that the
alien had in his possession when rescued (Tr. p. 12). It contained inter
alia a Hong Kong passport, driver's licenses from New York and New
Jersey, and a "multitude of pia-sires" (Tr_ p. l2). The Police Chief and
the Senior Inspector first interviewed the respondent after he had been
x-rayed and treated in the hospital's emergency room. The respondent
allegedly was given the Miranda warning by the Senior Inspector (Tr.
pp. 16, 19).
The immigration judge, noting that the respondent refused to testify
at the hearing on constitutional grounds, found that he was deportable
on all the charges. In the absence of an application by counsel for any
form of discretionary relief (Tr. p. 22), the immigration judge ordered
that the respondent be deported to Hong Kong. The main thrust of
counsel's contentions on appeal is that the respondent did not make an
entry into the United States on August 23, 1977, and that the proper
procedure herein should have been exclusion proceedings, rather than
deportation proceedings.
In the unusual circumstances of this case, we find that counsel's
reliance upon our decision in Matter of Pierre, 14 I. & N. Dec. 467 (MA
1973) was well-placed since there is a strong similarity in the facts of
both cases. An alien does not effect an entry into the United States
unless, while free from actual or constructive restraint, he crosses into
the territory of the United States and is inspected and admitted by an
immigration officer, or actually nr intentionally evades inspection at the
nearest inspection point. See Matter of Laulos, Interim Decision 25=
536
Interim Decision #2653
(BIA 1976); Matter of Pierre, supra, and cases cited therein. Freedom
from official restraint must be added to physical presence before entry is
accomplished. See United States v. Vasilatos, 209 F.2d 195 (3 Cir.
1954); United States v. Lazareseu,
199 F.2d 898 (4 Cir. 1952). It can
hardly be said that the respondent was free from official restraint when
taken into custody since one witness testified that he was unconscious_
Another witness stated that he was semiconscious and being administered oxygen. The respondent was in fact the victim of constructive
restraint. Nor did the respondent consciously achieve physical presence
within the geographical boundaries of the United States when he was
the fortunate beneficiary of a humanitarian gesture by the two fishermen. The courts have also held, as pointed out at page 469 in Pierre,
supra, that "no entry is made when the alien is taken into custody upon
his arrival at an American port . . . ." See Klapholz v. Esperdy,
302
F.2d 928 (2 Cir. 1962), cert. denied
371 U.S. 891 (1962).
The respondent has shown a blatant disregard for our immigration
laws over a long period of time. Nevertheless, his rights in this instance
must be protected even though his true intention may have been to
enter the United States surreptitiously. His unproven motive for being
in the Niagara River in the "pitch dark" (Tr. p. 9), therefore, can have
no bearing on the issue of his physical condition at the moment he was
taken into custody. We find that the respondent did not make an "entry"
into this country, within the purview of section 101(a)(13) of the Immigration and Nationality Act, as amended.
We agree with the contentions of counsel that these proceedings
should have been held in exclusion. In view of the foregoing, we must
conclude that the immigration judge was without jurisdiction to determine the issue of deportability. Accordingly, the appeal will be sustained and these proceedings ordered terminated.
ORDER: The deportation proceedings are terminated.
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