Interim Decision #2753
MATTER OF NIAYESH
In Exclusion Proceedings
A-23097591
Decided by Board January 16, 1980
(I) The immigration judge did not abuse his discretion in finding the nonimmigrant
student excludable under section 212(a)(20) of the Immigration and Nationality Act, 8
U.S.C. 1182(a)(20), where the applicant attempted to enter the United States and
return to full-time employment by presenting a student visa.
(2) The District Director has exclusive jurisdiction to parole an alien into the United
States pursuant to 8 C.F.R. 212.5(a).
(3) An alien who is paroled into the United States is not subject to a deportation
proceeding.
(4) Pursuant to 8 C.F.R. 108.1, the American Consul has exclusive authority to review an
asylum request made by an alien seeking entry a.t a land border port.
EXCLUDABLE:
Order. Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant—no valid
immigrant visa
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Steven D. Karp, Esquire Harold J. Neubauer
8034 Wilshire Blvd., #730 Trial Attorney
Beverly Hills, California 90211
BY: Milhollan, Chairman; Maniatis, Appleman,Ind Maguire, Board Members. Dissenting Opinion, Farb, Board Member
In a decision dated August 29, 1979, the immigration judge found the
applicant excludable under section 212(a)(20) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(20), as an immigrant who at the time
of application for admission was not in possession of a valid unexpired
immigrant visa. The applicant was ordered excluded and deported
from the United States. The applicant has appealed. The appeal will be
dismissed.
The applicant is a 20-year-old native and citizen of Iran. He was
admitted to the United States on March 2,4, 1978, as a nonimmigrant
student to attend the University of Tennessee. On or about January 5,
1979, the applicant moved from Tennessee to Los Angeles, California,
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and accepted full-time employment as a machinist. He allegedly only
moved and became employed because he was no longer able to receive
money from Iran to attend college (Tr. p. 7). Further, he stated that the
state colleges in California could not place him until the spring of 1980
(Tr. p. 11).
On August 12, 1979, the applicant and some friends visited Tijuana,
Mexico. In attempting to return to the United States, the applicant was
refused admission by an immigration officer in San Ysidro, California,
for presenting a student visa when employed full time as a machinist.
The immigration officer cancelled the applicant's student visa, finding
that he was no longer a bona fide nonimmigrant student' The applicant testified that he was told to go back to the American Consulate in
Mexico and obtain another visa (Tr. p. 16). Apparently, the Consul
refused the applicant's request. An exclusion hearing was held on
August 29, 1979, in San Ysidro, California.
On appeal, the applicant, through his attorney of record, argues that
1) the decision of the immigration judge, denying the applicant entry
into the United States and finding him excludable and deportable, was
arbitrary and capricious in that the applicant was admissible and
entry should have been granted by the immigration judge in exercise
of his administrative discretion; 2) should there have been a question
as to the applicant's student visa, the applicant should have been
paroled into the United States and set up for a deportation proceeding
in that the applicant's departure was brief, innocent, and casual under
Rosenberg v. Fleuti, 374 U.S. 449 (1963); 3) the applicant should have
been paroled into the United States in order to apply for political
asylum in that the applicant would be willing to demonstrate his
unwillingness to return to Iran because of the current unsettled conditions there; and 4) the applicant should have been allowed to submit an
application for political asylum at the exclusion proceeding as provided in the new amendments to the Code of Federal Regulations.
An immigration judge's authority in exclusion proceedings in set
forth as follows in 8 C.F.R. 236.1:
In determining cases referred for further inquiry as provided in section 235 of the
Act, immigration judges shall have the powers and authority conferred upon them by
the Act and this chapter. Subject to any specific limitation prescribed by the Act and
this chapter, immigration judges shall also exercise the discretion and authority
conferred upon the Attorney General by the Act as is appropriate and necessary for
the disposition of such cases. (Emphasis added.)
A "nonimmigrant student" is defined by the Act as an alien having a
' This statement was striken from the applicant's Notice of Visa Cancellation/Border
Crossing Card, Form 1-276, for the purpose of the applicant's exclusion hearing. The
applicant had requested the individual who prepared the form to appear at the hearing
for cross-examination and he was unable to do so.
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residence in a foreign country which he has no intention of abandoning, who is a bona fide student, and who is coming temporarily to
the United States to study. Section 101(a)(15)(F) of the Act, 8 U.S.C.
1101(a)(15)(F).
Pursuant to 8 C.F.R. 3.1(b)(1), the Board may consider an appeal
from an immigration judge in an exclusion proceeding.
At the time the applicant applied for admission to return to the
United. States, he was working full time in Los Angeles (Tr. p. 10). He
testified at the exclusion proceeding that although he never intended to
leave school, he did so in order to support himself as of January 1, 1979,
when he failed to receive money from Iran (Tr. p. 17,18). He admitted
that he never went to the Service to seek permission to work at any
time ('Tr. p. 7). On August 12, 1979, he attempted to return to the
United States to a full-time job by presenting a student visa. Inasmuch
as the applicant was without a valid visa as required by section
212(a)(20), the immigration officer cancelled the visa pursuant to the
applicant's withdrawal of his application for admission.' 22 C.F.R.
41.122(e)(3). We are convinced that the applicant was excludable under
section 212(a)(20), and the immigration judge did not abuse his discretion in so finding.
Insofar as the applicant's contention that the immigration judge
failed to comply with Commissioner Castillo's memorandum of March
1, 1979, instructing all field offices to give sympathetic consideration to
all Iranian students, we find that the instruction does not preclude the
immigration judge from disposing of an exclusion case in a manner
which he feels is appropriate.'
In response to the applicant's second argument, the District
Director has exclusive jurisdiction to parole an alien into the United
States pursuant to 8 C.F.R. 212.5(a). Both the immigration judge and
the Board lack jurisdiction to exercise parole power. Matter of Lepofsky, 14 I&N Dec. 718 (BIA 1974); Matter of Coneeiro,
14 I&N Dec. 278
(BIA 1973), afd, Conceiro v. Marks,
360 F.Supp. 454 (S.D.N.Y. 1973).
In the alternative, even if the applicant had been paroled, he would
not necessarily have been "set up for a deportation hearing" or admissible under the "Fleuti doctrine", as the applicant would have us
believe. An alien may be paroled into the United States temporarily
pending a final determination of admissibility in accordance with
The applicant, through his attorney of record, alleged at the exclusion hearing that
the applicant withdrew his application for admission unintelligently and in response to
coercion and duress exerted by the Service (Tr. p. 3). On appeal, however, the applicant
hoe failed to raise the issue. Consequently, it would he inappropriate to discuss the
propriety of such action on the part of the Service or its effect on the proceedings at this
time.
' In a -wire dated November 13, 1979, the memorandum was with drawn.
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sections 235 and 236 of the Act, 8 U.S.C. 1225 and 1226. See generally, 8
C.F.R. '212.5(a). Further, being "set up for a deportation proceeding"
would not have guaranteed the applicant relief from deportation.
The applicant, a nonimmigrant student returning from a two-hour
visit in Mexico, was mot an alien lawfully admitted for permanent
residence returning to an unrelinquished domicile, or a person whose
deportation would have resulted in extreme hardship to himself, his
spouse, or child who is a citizen of the "United States. See generally
Roienberg v. Pleuti, supra; Wadman v. INS, 329 F.2d 812 (9 Cir. 1964).
In response to the applicant's third and fourth arguments, 8 C.F.R.
108.1 clearly provides that the American Consul has exclusive authority to review an asylum request made by an alien seeking entry at a
land border port. Consequently, the immigration judge in an exclusion
proceeding in San Ysidro, California, has no authority to review an
applicant's asylum claim, whether or not the applicant is in possession
of a visa. See generally
44 Fed. Reg. 21253 (1979).
We are in complete agreement with the immigration judge's findings. Accordingly, the appeal will be dismissed.
ORDER, The appeal is dismissed.
DISSENTING OPINION: Ralph Farb, Board Member
I dissent from so much of the Board's decision as holds that the
applicant may not prosecute his application for political asylum in this
exclusion proceeding. I agree that he is not adngissible as a returning
nonimmigrant student following his two-hour departure to Mexico
because he lost that status by dropping out of school and by taking
unauthorized employment in the United States. Accordingly, it is
correct to declare him excludable as an immigrant without an immigrant visa.
8 C.F.R. 108.1 states, both before and after its amendment effective
May 10, 1979, that an applicant for asylum who appears at a land
border port is to be referred to the nearest American Consul. New in
this version of the regulation, and in new section 236.3, promulgated at
the same time, is a direction that aliens entitled to exclusion hearings
under Part 236 who apply for admission at airports or seaports will
have any concomitant asylum application considered by the immigration judge during the exclusion hearing process. New 8 C.F.R.
236.3(a)(2) states an exception for the alien seeking admission to the
United States at the land border. He is not to be processed by the
immigration judge as to his asylum request; instead he is to he
processed as prescribed by section 108.1; i.e., by referral to the nearest
American Consul.
44 Fed. Reg. 21259; April 10, 1979 (effective May 10,
1979).
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It is ray opinion that the literal application of the rule regarding
asylum requesters applying for admission at the land border was never
intended for and should not be applied to a citizen of an Asian country
who has gone from the United States to Mexico for 2 hours and has no
privilege to sojourn longer in Mexico (especially after his difficulties
with United States immigration authorities become known). This
would not happen at the Canadian border. Under Section III, B, 2 of the
Reciprocal Arrangement of 1949, as amended (INS Operations Instructions, Appendix to O.I. 243.1(c)(2)), the Canadian authorities would
formally order the the alien excluded and deported to the United
States, the United States Government would be obliged to let the alien
come back under a parole order, and he then would have section 236
exclusion proceedings as the forum where he could prosecute his
asylum request 8 C.F.R. 108.1. It never can have been intended thus to
discriminate against an alien who is not a citizen or resident of Mexico,
who strayed momentarily across the United States border into Mexico,
and who has no right to remain there while presenting an asylum
application to the American Consul.
The regulations have not been interpreted reasonably and correctly
in accordance with fairness and their, to me, manifest purpose. I would
remand this case to the immigration judge with a direction to entertain an asylum application.
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