Interim Decision #2847
MATTER OP CASTELLON
In Exclusion Proceedings
A-24436419
Decided by Board February 2, 1981
(1) The Board of Immigration Appeals does not have authority to review the manner in
which the District Directors exercise parole power.
(2) Applicants for admission in exclusion proceedings do not ordinarily enjoy the same
constitutional rights that are available to aliens who have made an entry into the
United States.
(3) A Cuban "refugee" who had been Paroled into the United States was properly found
excludable, upon revocation of parole by the District Director, on the ground that he
lacked documents as an immigrant, despite the failure of the Immigration and
Naturalization Service to establish the companion ground of excludability, commission of a crime of moral turpitude, which had led to the institution of the proceedings.
(4) An application for asylum under section 208, made after the institution of exclusion
or deportation proceedings, may also be considered as a request for withholding of
deportation under section 243(h).
(5) The application for asylum of a Cuban "refugee" was denied where the application
was based only on the alien's unsupported claim that his imprisonment for theft was a
politically motivated entrapment, particularly in view of his having been cited on six
occasions for exemplary performance in a government office.
EXCLUDABLE:
Order: Act of 1952—Sec. 212(a)(9) [8 U.S.C.1182(a)(9)]—Convicted of a crime involving
moral turpitude
Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant not in possession of valid unexpired immigrant visa or other valid entry
document
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE
Donald M. Chinnfa, Esquire Jim Tom Haynes, Esquire
Atlanta Legal Aid Society, Inc. Appellate Trial Attorney
302 E. Howard Avenue
Decatur, Georgia 30030
BY: Milhollan, Chairman; Maniatis, and Maguire, Board Members. Dissenting Opinion:
Irving A. Appleman, Board Member
In a decision dated July 23, 1980, an immigration judge found the
applicant excludable under section 212(a)(20) of the Immigration and
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Nationality Act, 8 U.S.C. 1182(a)(20), dismissed an additional charge of
excludability under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9),
denied a request from the applicant for political asylum, and ordered
his exclusion and deportation from the United States. The applicant
has appealed. The appeal will be dismissed.
The applicant is a 29-year-old native and citizen of Cuba who was
part of the recent exodus from that country. He arrived on May 8, 1980.
at Key West, Florida, and was paroled into the United States
temporarily under the provisions of section 212(d)(5) of the Act, 8
1182(d)(5). On May 16, 1980, employees of the Immigration and
Naturalization Service interviewed the applicant in the Spanish language and then prepared an affidavit and a Request for Asylum (Form
1-589) for him in English, which he then submitted to a Service District
Director. These documents state that the applicant was convicted in
Cuba in 1976, for the crime of embezzlement and sentenced to 12 years
in prison. On the basis of this information, the District Director
terminated the applicant's parole, detained him pursuant to section
235(b) of the Act, S U.S.C. 1225(b), and on June 9, 1980, charged him
with being excludable from the United States under section 212(a)(9)
of the Act on the ground that he had been convicted of a crime
involving mural turpitude, and under section 212(a)(20) on the ground
that he was not in possession of a valid, unexpired immigrant visa or
other valid entry document.
On May 28, 1980, the District Director requested an opinion from the
Department of State concerning the applicant's asylum claim. A
Deputy Assistant Secretary for Human Rights and Humanitarian
Affairs, at the Department of State, replied that he believed that the
applicant had commited a serious nonpolitical crime prior to his
arrival in the United States and that he was therefore not eligible for
asylum. On June 26, 1980, the District Director denied the applicant's
asylum request on the ground that he had been arrested and convicted
in Cuba of a serious nonpolitical crime. .
On July 23, 1980, the applicant appeared before the immigration
judge, with counsel, at an exclusion hearing. The applicant admitted
that he did not have a visa, but he denied that he was excludable under
either of the alleged charges. The applicant also renewed his application for asylum. •
The applicant alleged in support of his asylum request that his
criminal conviction was the result of politically motivated entrapment.
According to his testimony, the following events led to the conviction.
In 197G, while he was working at the Ministry of Transportation in
Cuba, a fellow employee at the Ministry asked him to join the Communist Party. He refused to join, and because of that refusal, efforts
were made to remove him from his position. These efforts were un-
Interim Decision #2847
sucessful, however, because he had been cited on six occasions for being
an exemplary employee and no firm basis could be found for firing him.
Subsequently, the employee who had asked him to join the Communist
Party convinced him that she was planning to escape from Cuba with
several other employees. She persuaded him to join the group and to
assist them in stealing money from the Ministry to finance their
escape. Sometime later, she told him during a dinner break that the
money had been taken and that it was in his office. When he returned to
his office, he found the money in a box under his desk. Several minutes
later, policemen entered the office and arrested him. A trial was held,
he was found guilty of some form of theft, and then he was sentenced to
12 years in prison. After serving 4 years of that sentence, he was
released to emigrate to the United States.
The applicant also testified that the Cuban government had discriminated. against him because he was Catholic. He had to work
longer hours and could not attend religious ceremonies. He admitted,
however, that most Cubans were Catholics and that apparently they
were all persecuted by the Cuban government because of their religious beliefs. He testified further that he was accused in 1974 of
holding anti-government meetings in his home, but that the charge
was never substantiated.
Thd immigration judge found that the excludability charge under
section 212(a)(9) of the Act could not be sustained. He found further,
however, that the applicant was excludable under section 212(a)(20) as
an immigrant who did not have a valid, unexpired immigrant visa or
other valid entry document. Finally, he denied the applicant's application for asylum on the ground that the applicant had not established a
significant probability that he would be singled out for persecution by
the Cuban government if he returned to that country.
In his appeal brief and during an oral argument before this Board,
the applicant has contended that it is manifestly unjust to order his
exclusion under section 212(a)(20) of the Act. The Service paroled him
into the United States knowing that he did not have entry documents,
and the only reason for separating him from thousands of other Cuban
refugees who were paroled in without entry documents, was the suspicion that he might be excludable under section 212(a)(9) of the Act.
Since the immigration judge has found that he is not excludable under
that section of the Act, there is no longer any reason to deny him the
parole status that his undocumented countrymen are enjoying.
In response to a request from this Board to clarify the Service's
position on the applicant's argument, the appellate trial attorney, who
appeared for the Service at the oral argument, submitted the following
memorandum on October 29, 1980. A copy of this memorandum was
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Interim Decision #2847
sent to the applicant.
At oral argument in the above-referenced matter on October 21, 1980, the Board
requested the Service's views on a policy question which was presented. That question
is whether the Service intends to seek exclusion under Section 212(a)(20) of the At of
a Cuban national such as the applicant herein after a charge under Section 212(a)(9)
has not been sustained by the Immigration Judge.
It is the present Service policy to pursue an exclusion order under Section 212(a)(20)
in such circumstances. A separate determination will be made in such cases as to
whether release from custody is warranted.
Before addressing the applicant's argument, we will briefly summarize the procedures that ordinarily are followed by the Service
when an alien seeks to enter the United States. In addition to any
physical or mental examinations which might be required, the alien is
inspected by an immigration officer pursuant to section 235(a) of the
Act. If the immigration officer concludes that the alien appears to be
clearly and beyond a doubt entitled to enter the United States, he is
admitted. Otherwise, he is detained for an exclusion hearing before an
immigration judge pursuant to section 225(b) of the Act. If the immigration judge finds that the alien is excludable and orders him
excluded and deported from the United States, the alien may appeal
the immigration judge's decision to this Board.
In this case, the applicant and his countrymen arrived at Key West,
Florida without entry documents and were taken into custody by the
Service. In view of their extraordinary circumstances, the inspection
process of section 235(a) was deferred and they were paroled into the
United States by the District Director under section 212(d)(5) of the
Act. It is important to note in this regard that under the terms of that
section such parole did not constitute an admission of these aliens into
the United States. Moreover, the section provides further that when
such parole status is terminated, the paroled aliens shall forthwith
return or be returned to the custody from which they were paroled, and
thereafter they will be dealt with in the same manner as that of any
other applicants for admission to the United States. Consequently,
when the District Director subsequently acquired information which
led him to believe that the applicant was excludable under section
212(a)(9), and revoked his parole status on the basis of that information, he was returned to the custody of the Service and placed in
exclusion proceedings.
Turning now to the applicant's argument, we note first that our
authority in this matter is limited. Although we agree with the applicant that there does not appear to be a sufficient justification for
keeping him in exclusion proceedings, while thousands of other undocumented Cubans are enjoying parole status, we cannot reinstate
his parole status. The Attorney General delegated the exercise of the
Interim Decision #2847
parole power under section 212(d)(5) exclusively to the District
Directors, and this Board does not have authority to review the manner in which they exercise that power. Matter of .1fiayesh„ Interim
Decision 2753 (BIA 1980): Matter of Lepofsky, 14 IN Dec. 718 (BIA
1974); Matter of Conceiro,
14 I&N Dec. 278 (BIA 1973), ord, Conceiro v.
Marks,
360 F.Supp. 454 (S.D.N.Y. 1973). Our role in these proceedings is
limited to reviewing the immigration judge's finding of excludability
and his rejection of the 'applicant's asylum request. Moreoever, the
scope of our review is limited further by the fact that applicants for
admission in exclusion proceedings do not ordinarily enjoy the same
constitutional rights that are available to aliens who have made an
entry into the United States. Matter of Cenatice, et al..,
16 I&N Dec. 162
(BIA 1977).'
Section 212(a) of the Act provides in pertinent part that aliens in the
following class shall be excluded from admission into the United
States:
(20) Except as otherwise specifically provided in this Act, any immigrant who at the
time of application for admission is nut in possession of a valid unexpired visa,... or
other valid entry document required by this Act, and a valid unexpired passport, or
other suitable travel document...
The term "immigrant" in that section refers to all aliens who have not
established that they are entitled to a "nonimmigrant" classification..
See section 214(b) of the Act, 8 U.S.C. 1184(b).
The applicant has not established or even claimed entitlement to a
"nonimmigrant" classification. Consequently, he is an "immigrant.'
Secondly, we are not aware of any law or regulation which exempts
immigrants in the applicant's situation from compliance with the
documentary requirements of section 212(a)(20). Accordingly, since he
does not have the documents required by that section, we find that he is
excludable from the United States.
The applicant also contends that political asylum should be granted
to him because he will be persecuted in Cuba on account of his religious
and political beliefs, and he will be returned to prison to serve the
balance of the 12-year sentence for the trumped up theft charge.
An application for political asylum under section 208 of the Act, 8
U.S.C. 1158, made after the institution of exclusion or deportation
proceedings, shall also be considered as a request for withholding of
deportation under section 243(h) of the Act, 8 U.S.C. 1253(h). 8 C.F.R.
208.3(b) (effective June 1, 1980). While we recognize that there may be
` Compare Paktorovics v. Murff,
260 F.2d 610 (2 Cir. 1958), in which it was held that an
alien had a constitutional right to duo proecoo oven though ho had not boon admitted to
the United States. That case, however, involved special circumstances that are not
present in these proceedings. See Ahrens v. Rojas,
292 F.2d 406 (5 Cir. 1961); Sui Fung
Lick v. Rosenberg,
271 F.Supp. 485 (C.D. Cal. 1967).
620
Interim Decision #2847
differences between "asylum" and "withholding of deportation" in
another context, we will refer to both forms of relief by the term
"asylum" in this case. An applicant for such relief must establish that,
if deported, he would be subject to persecution based on his race,
religion, nationality, membership in a particulai social group, or political opinion. Matter of McMullen, Interim Decision 2831 (BIA 1980).
Accordingly, we will address the merits of the applicant's asylum
request. The only significant allegation in the applicant's asylum claim
is that his imprisonment was the result of politically motivated entrapment, and he has not supported that allegation with any evidence
other than his own account of the events which led up to the imprisonment. Furthermore, we find it incredible that the Cuban government
would orchestrate such a scheme because of the applicant's refusal to
join the Communist Party or on account of unsubstantiated accusations that covert political meetings had been held at his home, especially in view of the fact that the applicant had been cited on six
occasions for exemplary performance as an employee at a government
office. We find, therefore, that he has not met his burden of establishing eligibility for asylum.
We conclude that the decision of the immigration judge was correct.
Accordingly, we will dismiss the applicant's appeal.
ORDER: The appeal is dismissed.
DISSENTING OPINION Irving A. Appleman, Board Member
I respectfully dissent.
The applicant arrived May 8, 1980, as part of the Cuban boat-lift. He
was paroled, and was placed under exclusion proceedings on June 9,
1980, charged with inadmissibility under section 212(a)(9) for commission of a crime, and section 212(a)(20) for lack of a valid visa. The
majority decision sustains the immigration judge's decision rejecting
the first, but finds him inadmissible on the second. Simultaneously, it
denies his application for asylum under the Refugee Act of 1980, P.L.
96-212, 94 Stat. 102, because of a failure to establish that he would be
persecuted on return to Cuba.
According to an Immigration and Naturalization Service press
release of June 26, 1980, Cubans who arrived in the United States
between April 21, 1980, and June 19, 1980, and were in Immigration and
Naturalization Service proceedings as of the latter date, were to be
granted extensions of parole to January 15, 1981. This was "in compliance with Presi dent Carter's previously announced policy to give Congress time in which to consider special legislation that would regularize the status of Cubans and Haitians known to be in the United
Interim Decision #2847
States prior to June 19.1"
The policy referred to was set forth in a published statement of
Victor H. Palmieri, U.S. Coordinator for Refugee Affairs on June 20,
1980. This legislation [The Refugee Act of 1980] did not contemplate the kind of situation we face now, with a sudden massive influx,
without overseas processing and valid documentation. . In order to
redress this extraordinary situation yet maintain the integrity of our
refugee laws for those applying for admission in the prescribed manner, the President has decided to seek special legislation regularizing
the status of Cuban-Haitian entrants...." .
The administration bill, S. 3013, was introduced on August 5, 1980. It
created a special Caban/Haitian Entrant status for these Cubans who
arrived after April 20 and before - June 20, 1980, and provided for
adjustment of statues after 2 years. These admissions would not count
against the numerical limitations of the Immigration and Nationality
Act. In submitting the bill to the Congress, a spokesman for the
Attorney General stated, "This special, one time only, legislation is
necessary to meet problems nut contemplated by the Refugee Act of
1980. The refugee provisions of the Act do not provide for the sudden
and massive arrival of persons to the United States who did not
undergo overseas processing_ . _ Additionally, many rif the Cubans and
Haitians would not qualify under the strict standards for asylum."
(Emphasis supplied.) See Congressional Record—Senate, August 5,
1980, S. 10825 at S. 10827.2
From the outset, these Cubans have been regarded as outside the
asylum provisions of the Refugee Act of 1980. However, where there
was reason to believe the alien was inadmissible for commission of a
crime, the Service has instituted exclusion proceedings and has accepted and processed asylum applidations. Other Cubans who arrived
during the specified period are not being placed in exclusion proceedings, nor are their asylum applications being processed. See oral argu-
' See press release, quoted in American Council for Nationalities Service, Interpreter
Releases, Vol. 57, No. 25, pp. 305-6, June 30, 1980. The implementing Immigration and
Naturalization Service inctructions appear in a telegraphic message to field offices dated
July 3, 1980, under file no. CO 242.1-P. The same treatment has now been authorized for
Cubans who arrived between June 20,1980, and October 10, 1980, and who were in Service
proceedings as of October 10,1980. Interpreter Releases, Vol. 57, No. 41, October 23, 1980.
Immigration and Naturalization Service proceedings is interpreted as meaning any
Cuban or Haitian who has appeared before an immigration officer and has been documented in some fashion." Service telegram of July 3, 1980, supra.
"The Refugee Act did not intend to address a situation of this type or magnitude."
Key Issues lecture by Peter W. Bodine, Jr., Chairman, Committee of the Judiciary,
United States House of Representatives, November 12, 1980, reprinted in American
Council for Nationalities Service Interpreter Releases, November 19, 1980, Vol. 57, No. 44,
p. 535, at 542.
622
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ment p. 9.
There is justification for treating a Cuban who may be excludable
because of a criminal conviction, as excepted from the general policy
and procedure. Only a relative few of the boat-lift Cubans have committed "serious nonpolitical crimes." If they are conceivably a danger
to the community, or if, according to their past histories, there is
reason to believe they are ineligible for, or unworthy of, gaining a
foothold in this country, then they should be subject to the strictures of
the Immigration and Nationality Act, just as much as, e.g., an alien
who seeks to enter with subversive intent, 8 U.S.C. 1182(a)(29). The
institution of exclusion proceedings against this special group is not
unreasonable and we have had no hesitation in accepting jurisdiction
over appeals from adverse rulings below.
The appeals have presented dual aspects of excludability and
"refugee" status. In passing on the appeals, we have regarded each
asylum application under the Refugee Act, as embracing an application for a stay of deportation to Cuba under section 243(h) of the
Immigration and Nationality Act, 8 U.S.C. 1253(h). Once excludability
under 8 U.S.C.. 1182(a)(9) was established, we have passed on the
section 243(h) application. However, we have declined, sub silentio, to
rule on eligibility for asylum under the Refugee Act, since that question was awaiting legislative resolution at the request of the administration. In considering section 243(h) relief, we applied the requirements for that relief as now amended by the Refugee Act of 1980,
including the bar for those who have committed a "serious nonpolitical
crime." The persecution issue was reached as a part of the analysis of
the possible political nature of the crime. See Matter of RodriguezPalma, Interim Decision 2815 (BIA 1980).
It could be argued that consideration of the section 243(h) application should also have been deferred. We chose not to, because of our
long standing and established jurisdiction over this relief as a part of
-
the Immigration and Nationality Act,3 and the fact that, as a stay of
deportation to a designated country, it was an inherent part of the
appeal before us, distinguishable from a grant or denial of permanent
residence to an asylee. "Asylum" applications for the "boat-lift"
Cubans may or may not be under our jurisdiction when the matter is
finally resolved by the Congress, and implemented by regulation. The
requirements for "asylum" for the group, in whatever form that relief
takes, are not even known to us at this writing. Hence, while the terms
"asylum" and "refugee" have frequently been used interchangeably,
3 Although jurisdiction over the application in exclusion proceedings was extended to
immigration judges and the Board only on May 10, 1979 (8 C.F.R. 2382), it has long been
a part of deportation proceedings (S C.F.R. 242.17(e)).
Interim Decision /12847
and the Service itself uses one application form to cover both (see 8
C.F.R. 108.1), up to now, this Board has not ruled upon Cuban asylum
applications under the Refugee Act of 1980, although we have passed
upon the same application insofar as it could be deemed a request for a
stay of deportation under section 243(h) of the Act. 4
This selectivity has now been abandoned. The majority has considered the asylum application on the merits under the Refugee Act. Of
course the applicant cannot qualify. Very few of these Cubans can.
Their ineligibility has been acknowledged publicly, yet their removal
has not been sought. Rather, their paroles have been extended while
legislation is pressed to take care of them, despite the lack of a visa and
the inapplicability of the Refugee Act.
The sole apparent reason the applicant was singled out for the
initiation of exclusion proceedings, was because of a possible criminal
basis for excludability under 8 U.S.C. 1182(a)(9). For the reasons noted,
this was acceptable. The criminal ground of excludability has fallen by
the wayside. Nevertheless, the Service insists that the case continue to
be prosecuted and that the appeal be decided in all aspects, and the
majority has acquiesced. This raises an issue whether the full sanction
of the law should be applied, at this time, when the applicant has not
been shown to be within any special category, but is excludable solely
for grounds applicable to all of the other thousands of Cubans who
came here when he did.
The other "boatlift" Cubans are in a limbo where they are not
subjected to exclusion proceedings, where no order of exclusion and
deportation has been entered against them, where their asylum applications are neither denied nor approved, but are either not accepted,
or, if accepted, are not processed. None of them have immigration
documents and they are equally inadmissible for lack of them. It is
doubtful if more than a handful could qualify technically under the
Refugee Act. On the record before us, the applicant is now in like
position, yet the majority has affirmed his inadmissibility for lack of a
valid visa, has denied his asylum claim for lack of proof, and has
ordered his exclusion and deportation.
In my view, it is both absurd and improper for the Service to press
forward with this case now that the exclusion charge based on a crime
is no longer applicable. This Board acts as the surrogate of the Attorney General in those matters within our jurisdiction. This is obviously a policy area, but it is not one in which policy is unclear. I see no
4 Matter of Rnririguez-Polma., supra. For discussion of possible differences between a
stay of deportation under section 243(h) and asylum, see Matter of McMullen, Interim
Decision 2831 (BIA 1980). Cf. Matter of Duwar, 14 I&N Dec. 310 (BIA 1973), for comparison prior to Refugee Act.
624
Interim Decision #2847
room for interpretation by us of the applicability of the statute to this
applicant at this time. By ruling as it has, the Board has defeated the
expressed desire of the executive branch of the Government, and
anticipated adversely the as yet unexpressed will of the Congress. This
I am unwilling to do.
True, there is no immediate threat of removal from the United
States. The Service is not presently deporting aliens to Cuba, so far as
known. Nevertheless, many possibilities exist. The visa requirement
which is the basis of the no-visa charge under 8 U.S.C. 1182(a)(20) may
be waived legislatively as to this special group.' They may be relieved
entirely of the asylum requirements of the Refugee Act, or be
statutorily defined as "refugees," either within or outside of existing
legislation, and regardless of proof of individual persecution. Admittedly, if, as, and when something of this sort takes place for other
Cubans in like position, this applicant, if still here, may move to reopen
these proceedings. On the other hand, he may not still be here, given
the outstanding order, the variable status of relations with Cuba
(under which Cuba might conceivably accept him back at some future
date), the possibility that some other country may accept him, and the
already demonstrated enthusiasm of the Service for continuing to
move against 1tim despite the failure of the criminal charge. Ryan
more importantly, the Board here sets a precedent under which the
Service is free to impose the full sanction of the Immigration and
Nationality Act on. any of the boat-lift Cubans, whetherin an excepqd
group or not.
I see no need to take these risks. No harm would be done in placing
the applicant back with the others in like status, to be treated however
they are ultimately treated, and under the same standards. I would
therefore remand this case to the Service, without passing at this time
on either inadmissibility under section 212(a)(20), 8 U.S.C. 1182(a)(20),
or on his asylum application, leaving it to the Service to take appropri-
,
ate action as to parole.
S. 8013, made paragraphs (14), (15), (20), (21), (25), and (32) of section 212(a) of the
Immigration and Nationality Act inapplicable, and permitted the Attorney General to
waive any other provision of section 212(a) except (27), (29), (33), and that part of (23)
relating to traffic in narcotics. Congressional Record—Senate, S. 10825, August 5, 1980.
The bill was still pending when. Congress adjourned and will undoubtedly be
reintroduced.
