Interim Decision #2660
MATTER OF ARTHUR
In Exclusion Proceedings
A-15574761
Decided by Board August 23, 1978
(1) 'Where smuggled aliens gave applicant for admission $200 to "get papers," in addition to
money for gas, and applicant was making the trip for his own reasons in any event. finding
that the applicant was smuggling aliens for "gain" in violation of section 212(a)(31) 8
U.S.C. 1182(a)(31) was warranted [Ribeiro v. INS, 531 F.2d 179 (3 Cir. 1976) distinguished].
(2) Immigration judge properly found that the standard of proof formulated by the
Supreme Court of the United States in Woodbrli v. INS,
385 U.S. 276 (1966), does not
apply to exclusion proceedings.
EXCLUDABLE: Act 01 1952-6ection 2r2(a)(31), 1. & N. Act [8 1182(a)(31)]--
Smuggling for gain
ON BEHALF OF APPLICANT: Timothy S. Barker, Esquire
Legal Aid Society of San Diego, Inc.
1760 North Euclid Avenue
San Diego, California 92105
BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members
This case presents an appeal from a decision of the immigration judge
021 June 26, 1978 ordering that the applicant be excluded and deported
from the United States. The appeal will be dismissed.
The applicant is a married native and citizen of Panama, age 27, who
was admitted to the United States in March, 1975 upon his knowingly
false representation that he was a crewman stationed aboard a ship
azehored off the coast of this country.. The applicant failed to depart
within his authorized period of time not to exceed 29 days, but rather
1'4m-twined here and married a United States citizen in August, 1975.
During a visit to Panama in early 1978, the applicant arranged to
illegally transport certain aliens into the United States in return for
their payment of travel expenses and certain other remuneration. The
applicant's clandestine efforts failed and he was apprehended and
paroled into the United States pursuant to section 212(d)(5) of the
Immigration and Nationality Act, 8 U.S.C. 1182(d)(5), as amended. On
June 2, 1.978, the applicant was convicted in the United States District
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Interim Decision #2660
Court for the Southern District of California, upon his plea of guilty to
violations of 18 U.S.C. 371 and 8 U.S.C. 1325. At the applicant's
exclusion hearing, it was contended inter alia, that the Service had failed
to establish its standard of proof by clear, convincing, and unequivocal
evidence.
The immigration judge found that the amounts received by the applicant from the aliens, en route from Panama to the United States, did
constitute "gain" as that term is used in section 212(a)(31) of the Act.
The immigration judge further found that the applicant's reliance upon
the decision in Woodby v. INS, 385 U.S. 276 (196 6) was not well-placed
since, as the Board has pointed out in Matter of Moore,
13 I. & N. Dec.
711 (BIA 1971), the standard formulated in
Woodby, supra, "applies
only to deportation proceedings."
We agree. Upon review of the record, including the contentions of the
applicant in his brief on appeal, we conclude that the decision of the
immigration judge was correct. Section 212(a)(31) of the Act specifically
includes among those classes of aliens who shall be ineligible to receive
visas and shall be excluded from admission into the United States "Any
alien who at any time shall have, knowingly and for gain, encouraged,
induced, assisted, abetted, or aided any other alien to enter or to try to
enter the United States in violation of law." The applicant clearly comes
within the purview of this provision of the statute.
In .Uibeiro v. INS,
531 F.2d 179 (3 Cir.. 1976), a case relied upon by
counsel, the court held that $50.00 of the total amount that the alien was to
be paid for transporting other aliens from Montreal into the United
States might have been reimbursement for expenses incurred over and
above his initial cash outlay of $100 and was not satisfactory evidence that
he had acted "for gain." The court stated that a common sense
interpretation of the phrase "for gain" requires the prospect of an excess
of tangible return over expenditure in a particular transaction. In the
instant case, we have testimony by passenger Granville PowellThompson that he gave the applicant approximately $200 in advance to
enable the latter to get his papers at the American Embassy in Panama
(Tr. pp. 47, 52, 58). Thompson's brother testified in a like manner (Tr.
pp. 62, 68, '73) and their testimony was found credible by the immigration judge_ Although counsel acknowledged the abOve testimony of the
brothers concerning their financial assistance in gaining the entry
documents (Brief p. 8), the applicant alleged that he received money
only for gas from the Thompson brothers in Panama (Tr. p. 112). The
immigration judge found that the applicant's memory was faulty.
This case is distinguishable from Ribeiro, where the alien went out of
his way to deliver his passengers to the destination of their selection..
Here, the applicant wanted to go to the United States from Panama for
his own reasons; an immigrant visa had been issued to him. Under such
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Interim Decision #2660
circumstances said the court in Ribeiro, an expectation of "gain" from
the collection of money for gasoline could reasonably be found. 531 F.2d
at 180.
Under the provisions of section 291 of the Act, the burden of proof is
upon an applicant for admission to establish that he is not subject to
exclusion. We have held that this burden never shifts, but is always on
the applicant, Matter of Rive.ro-Diaz,
12 I. & N. Dec. 475 (BIA 1967). In
the circumstances of this case, exclusion proceedings were proper. We
conclude that the decision of the immigration judge should be affirmed.
ORDER: The appeal is dismissed.
560
