Interim Decision #2900
MATTER OF LIN
In Exclusion Proceedings
A-24396'728
Decided by Board May 6, 1982
(1) An alien who absconds from an Immigration and Naturalization Service detention
facility while awaiting exclusion proceedings does not make an entry into the United
States as defined in section 101(a)(13) of the Immigration and Nationality Act, 8 U.S.C.
1101(a)(1S), and, therefore, was properly placed in exclusion proceedings: Matter of A ,
-
9 I&N Iy ec. 356 (BIA 1961); and Matter of A-T-, 3 I&N Dec. 178 (BIA 1948), distinguished.
(2) An ahem who escapes from Service detention does not acquire the same status as
an alien who evades Service inspection by entering the United States surreptitiously
and, hence, may not be accorded the procedural benefits of deportation proceedings.
EXCLUDABLE:
Order: Act of 1952—Sec. 212(a)(19) (8 1182(a)(19))—Sought entry by fraud or
material misrepresentation
Sec. 212(a)(20) i8 TJ.S.C. 1182(aX20)}— Not in possession of a valid
unexpired visa or other valid entry document
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Stephen singer, Esquire Steven R. Abrams
• Barst & lfulcamal General Attorney
127 John Street
New York, New York 10038 Gerald S. Hurwitz
Appellate Trial Attorney
BIr; Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
This case was last before no on October 6, 1981, when we dismissed a
Service appeal from the immigration judge's termination of the exclusion proceedings against the applicant. We agreed with his conclusion
that the applicant had entered the United States without inspection and
was therefore, subject to deportation proceedings instead of exclusion
proceedings. The Service has submitted a motion to reconsider our
October 16, 1981, decision on this case. The Service motion to reconsider
will be granted and the appeal will be sustained.
The applicant is a native and citizen of China who applied for admission to the United States as a nonimmigrant visitor for pleasure on
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Interim Decision #2900
August 22, 1980. At the inspection, he was in possession of a passport
which he had purchased in Hong Kong and which bore the name of
another person. He was detained by the Service and placed in exclusion
proceedings because of alleged excludability under sections 212(a)(19)
and 212(a)(20) of .the Immigration and Nationality Act, 8 U.S.C.
1182(a.)(19) and 1182(a)(20), for attempting entry by fraud or material
misrepresentation and lacking a valid immigrant visa. However, prior
to the exclusion hearing he absconded from the Service detention facility in St. Paul, Minnesota, until apprehended two days later on September 6, 1980, in New York City. Consequently, the immigration judge
. terminated the exclusion proceedings, concluding that the applicant had
made an "entry" into the United States.
Our October 6, 1981, decision applied a four element test prescribed
in Matter of Pierre, 14 I&N Dec. 467 (BIA 1973), for determining when
an alien has made an "entry" into the United States and is therefore
subject to deportation and not exclusion proceedings. We then stated
that the term "entry'," is defined in section 101(a)(13) of the Art, 8
U.S.C. 1101(a)(13), as ". . . any coming of an alien into the United States,
from a foreign port or place or from an outlying possession. . . ." A
survey of the many eases which have treated this subject over the years
leads to the following conclusions. An "entry involves (1) a crossing into
the territorial limits of the United States, i.e. physical presence; plus . '
(2) inspection and admission by an immigration officer, United States v.
Vasilatos, 209 F.2d 195 (3 Cir. 1954); Lazarescu v. United States,
199
F.2d 898, 900 (4 Cir. 1952); or (3) actual and intentional evasion of
inspection at the nearest inspection point, U.S. ex rel. Giacone v. Corsi,
64 F.2d 18 (2 Cir. 1933); Morini v. United States,
221 F.2d 1004 (9 Cir.
1927), cert. denied, 276 U.S. 623 (1928); Low Moy v. United States,
237
Fed. 50, 52 (8 Cir. 1916); Matter of Estrada-Betan,caurt,
12 I&N Dec.
191, 193-4 (BIA 1967); coupled with (4) freedom from restraint, United
States v. Vasilatos, supra; Lazarescu v. United States, supra.
The applicant physically crossed the United States border at St. Paul
where he was detained. He later reached New York City by absconding
for two days from a Service detention facility. In Matter of A-, 9 I&N
Dec. 356 (BIA 1961), and Matter co f A-T-, 3 I&N Dee. 178 MIA 1948),
we had concluded that escaping from Service detention while awaiting
exclusion proceedings constituted an entry which required deportation
proceedings instead. We reached the same conclusion in this case applying the Pierre test. We concluded that when the applicant absconded, he
temporarily achieved freedom from Service restraint, and had made an
entry into this country since he was already physically present here. We
distinguished two cases cited by the Service in support of its position
- because there the aliens in question had been paroled into the United
States. See Vitale v. INS, 463 F.2d 579 (7 Cir. 1972); Klapholz v.
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Interim Decision #2900
Esperdy, 201 F.Supp. 294 (S.D.N.Y. 19611, aff 'd, 302F.2d 928 (2 Cir.
1962).
However, in its motion to reconsider, the Service has submitted additional arguments which we find convincing. The Service initially contends that the test prescribed in Matter of ierre, supra, is not met here
because the applicant did not evade inspection but rather, was inspected
and detained pending exclusion proceedings pursuant to section 235 and
236 of the Act, 8 U.S.C. 1225 and 1226. He.was served with a Notice to
Alien Detained for Hearing by an Immigration Judge (Form 1-122) as
prescribed by 8 C.F.R. 235.6(a).
The Service also directs our attention.to the case of Lak v. Rosenberg,
409 F:2d 5 (9 Cir. 1969), where an alien had been found excludable,
paioled into this country and had absconded for three years. After he
was located, his parole was revoked. The court concluded that the alien
did not make an "entry" when his parole was revoked, despite his managing to remain for several years after the parole revocation. Congress
did not intend to improve such an alien's status, from that of an applicant Seeking admission, to that of an alien who has entered the United
States and is subject only to deportation proceedings in.order to be
removed from this country. Luck v. Rosenberg, supra at 558. 1
The Service also points out -distinguishing factors in the two cases we
previously cited in support of our October 6, 1981, decision, Matter of
A-, supra; and Matter of A-T-, supra. In Matter of A-T-, the applicant
had been notified of an exclusion hearing when he first applied for entry.
He returned later that day, applied again for entry and was admitted.
Consequently, there had been two separate applications for entry and
his successful second attempt clearly constituted an "entry" since he had
been admitted into this country. In Matter of A , the alien had been
-
'detained on board a ship as a stowaway pursuant to section 273(d) of the
Act, 8 U. S.C. 1323(d). When he escaped and managed to land, his status
was similar to that of any alien who surreptitiously crosses our border
and enters the United States without inspection.
It is well settled that when an alien is paroled into the United States
pursuant to section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), and 8
C.F.R. 212.5, pending exclusion proceedings in accordance with sections 235 and 236 of the Act and 8 C.F.R. 235 and 236, he does not gain
the additional protections prescribed for deportation proceedings. Lung
May Ma. v. Barber, 357 U.S. 185 (1958); Rogers v. ChM.,
357 U.S. 193
(1958); United States ex rel. Sellas v. Esperdy,
366 F.2d 266 (2 Cir.
1966); United.States ex rel. Lam Hai Cheung,
345 F.2d 989 (2 Cir.
1 A n alien in deportation proceedings has avenues of relief from expulsion unavailable in
exclusion proceedings, e.g.. suspension of deportation and voluntary departure pursuant to
section 244 of the Act, 8 U.S. C. 1254. He also can request a bond redetermination hearing
with a right to appeal to this Board pursuant to 8 C.F.R: 242.2(b).
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Interim Decision #2900
1965); Wong Hing Fun v. Esperdy, 335 656 (2 Cir. 1964); Wong Hing
Goon v. Brownell, 264 F.2d 52 (9 Cir. 1959); Lima-Gomez v. Pilliod,.
193 F.Supp. 577, 579-580 (N.D. III. 1960); United States as rel. Tom We
Shung v. Murff,
176 F.Supp. 253, 256 (S.D.N.Y. 1959); In re Milanovic's
Petition,
162 F.Supp. 890, 894 (S.D.N.Y. 1957), affd
253 F.2d 941 (2
Cir. 1958); and Luk v. Rosenberg, supra.
We reach the same result when, instead of being paroled, the alien is
placed in detention within the United States territory, pursuant to 8
C.F.R. 233.1 and 235.3 and manages to abscond from detention while
awaiting his exclusion hearing. The service of the Form 1-122 after
inspection, vests upon the immigration judge the authority to conduct
the exclusion proceedings in order to determine the applicant's admis-
' sibility. Whether the applidant is then paroled into the United States or
instead kept in detention at a Service facility is not determinative. His
escaping from Service detention does not place him in the same status as
an alien who manages to evade inspection by entering the United States
surreptitiously. He has been inspected but not admitted. We therefore,
do not choose to extend our decision in Matter of A- to aliens physically
in this country, who are detained pending exclusion proceedings, and
who manage to escape from detention. The motion to reconsider will be
granted, the Service appeal will be sustained, and the record remanded
to the immigration judge for resumption of the exclusion proceedings. It
is so ordered.
ORDER: The motion to reconsider is granted and the appeal is
sustained.
FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing opinion
and the entry of a new decision_
