DEA

                                                               Interim Decision #2912




                                   MATTER OF DEA

                             In Exclusion Proceedings •
                                       A-26007015
                         Decided by Board July 14, 1982

(1) An alien makes a request for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. 1158, only by formally filing a Form 1-589, "Request for Asylum
  in the United•States."
(2) Where the alien applicant for admission to the United States filed a Form 1-589 asylum
  application after being placed in exclusion proceedings, jurisdiction over his asylum claim
  properlyliea only with the immigration judge; therefore, the immigrationjudge'a decision
  terminating exclusion proceedings for lack of jurisdiction is reversed, and the record is
  remanded for a determination of the applicant's asylum claitit and admissibility to the
  United States.
EXCLUDABLE: Act of 1952---Sec. '1.12(a)(ZU)18      11F.L(a)(21:)1 — inunigrant not in possession of valid immigrant visa
ON BEHALF OF APPLICANT:                                 ON BEHALF OF SERVICE:
 Wren Rivera, Esquire                                    William F. Jankun
  Banco de Ponce Building                                 Lolita J. Semidey
 Suite 00907                                              General Attorneys
  1250 Ponce de Leon Avenue
  Santruce, Puerto Rico 00907                             Gerald S. Hurwitz
                                                          Appellate Thal Attorney
By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

   In his decision of November 20, 1981, the immigration judge ordered
these exclusion proceedings terminated due to lack of jurisdiction. The
Immigration and Naturalization Service appeals. The appeal will be
sustained.
  The applicant is a 82-year-old native and citizen of Haiti who arrived
in the United States on July 8, 1981, by boat near Miami, Florida.
Having no apparent documents with which to enter the United States,
he was held in detention by the Service, and on July 27, 1981, he was
served with a Form 1-122, "Notice to Applicant for Admission Detained
for Hearing Before Immigration Judge," alleging that he was excludable
from admission to the United States under section 212(a)(20) of the
Immigration and Nationality Act, 8 U.S.C. 118Z(a)(2U), as an immigrant
not in possession of a valid immigrant visa. Service of the Form 1-122
placed the applicant under these exclusion proceedings.
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      The applicant's initial exclusion hearing on August 21, 1981,was apparently adjourned until September 9, 1981. On September 9 the hearing
   was continued in order to allow the applicant to prepare and file an
   application for asylum under section 208 of the Act, 8 U.S.C. 1158. The
   applicant formally filed a Form 1-589 "Request for Asylum" on October
   9, 1981. 1 Pursuant to federal regulations at S C.F.R. 208.7 and 208.10(b),
   that application was submitted to the United States Department of
   State; Bureau of Human Rights and Humanitarian Affairs (BHRHA),
   for its advisory opinion regarding the applicant's asylum claim. Upon
   receipt of the BHRHA response dated November 2, 1981, the hearing
   was resumed on November 20, with a new immigration judge now
   presiding. The applicant then for the first time challenged the immigration judge's jurisdiction to rule on his admissibility and adjudicate his
   asylum application, arguing that the District Director, by regulation,
   must first adjudicate his request for asylum.
      8 C.F.R. 208.1 provides as follows:
     Jurisdiction over any request for asylum made by au applicant for acluzioaion at a port of
     entry shall lie with the District Director having jurisdiction over that port of entry(,] .. .
     except that jurisdiction over an asylum request made by an alien after he has been
     placed under exclusion proceedings pursuant to 8 C.F.R. 236.2 . . . shall lie with the
     intrnigradion ju•ge.

   (Emphasis supplied). See also 8 C.F.R. 208.3(a)(2) and (b). 8 C.F.R.
   208.9 also specifies that, "Where an application for asylum is denied by
   the District Director; the applicant may renew his request for asylum
   before an immigration judge in exclusion . . . proceedings." .
     The immigration judge1 ruled that; the District Direetoi had been put
   on notice of a colorable claim to asylum by the applicant prior to placing
   him under exclusion proceedings, and therefore the District Director
   must first exercise jurisdiction over the applicant's asylum application
   as provided in 8 C.F.R. 208.1. Accordingly, the immigration judge held
   that he had no present jurisdiction over the matter, and he ordered the
   exclusion proceedings terminated. This was erroneous.
      8 C.F.R. 248.2•specifies that, "Applications for political asylum shall
   be made on Form 1-589, 'Request for Asylum in the United States.' "
   (Emphasis supplied.) Thus, the only recognized mechanism by which an
   alien can officially register his request for asylum is through the formal
   filing of a Form I-589. The filing of the Form 1-589 provides a "brightline" reference for determining when an asylum request is made. It also
   avoids the delays, inefficiencies, and practical difficulties involved in
   going behind the record to determine exactly what the alien may have


        8 C.F.R. 208.3(b) provides that the Ming of an application. for asylum made In exclu-
. siqn proceedings shall also be considered as a request for withholding of exclusion under
    section 243(h) of the Act, 8 U.S.C. 1253(h).

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told Service officers, and in reviewing the subjective judgment of the
District Director regarding what claims are "colorable" and what statements suffice to constitute "notice." Furthermore, the issue of asylum
jurisdiction does not, in any way, affect the substantive rights of the
alien, but concerns merely how procedurally he will obtain administrative assessment of his allegations of persecution, i.e., whether the District Director or the immigration judge will first adjudicate his asylum
claim. The above factors militate in favor of viewing the actual filing
date of the Form 1-589 application as being determinative of the time
 when an alien is considered to have made a request forasylum.
   In view of the foregoing, we hold that where an alien applicant for
admission to the United States files a Form 1-589 request for asylum
 after being placed in exclusion proceedings, jurisdiction over his asylum
claim properly lies only with the immigration judge. Here, the applicant
 was placed in exclusion proceedings by service of the Form 1-122 on July
27, 1981 , and he subsequently filed his Form 1-589 request for asylum on
September 9, 1981. Therefore, jurisdiction exists only with the immigration judge to adjudicate the applicant's asylum application as a part, of
these exclusion proceedings. Accordingly, the immigration judge's decision terminating these proceedings for lack of 'jurisdiction will be
reversed, and the record will be remanded for a determination of the
applicant's asylum claim and admissibility to the United States.
   ORDER: The appeal is sustained and the record is remanded to
 the immigration judge for further proceedings consistent with the foregoing opinion and entry of a new decision.




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