SHIRDEL

                                                        Interim Decision #2958




                       MATTER OF SHIItDEL, et ed.

                           In Exclusion Proceedings

                                   A-26166161
                                   A-26166168
                                   A-26166164
                                   A-26166165

                    Decided by Board February 21, 1984

(1) Afghan nationals who arrived in the United States with fraudule,nt Turkish passports as transit without visa ("TRWOV") aliens in order to submit applications for
   asylum are excludable under the second clause of section 212(aX19) of the Immigration and Nationality Act, 

(a)(19) (1982), for attempting to enter
   the United States by fraud or material misrepresentation.
(2) The use of fraudulent Turkish passports by Afghan nationals in order to avail
   themselves of the TRWOV privilege was an integral part of their material misrepresentation in attempting to enter the United States.
(3) Afghan nationals who came here from a foreign port in order to submit applications for asylum attempted an "entry" into the United States within the meaning
  of section 101(a)(13) of the Act, 

(aX13) (1982).
(4) An alien who circumvents the orderly procedures for obtaining refugee status
  abroad will ha denied the discretionary relief of asylum in the absence of strong
  countervailing equities to overcome this serious adverse factor.
(5) Whether or not an applicant in exclusion proceedings is excludable under section
  212(aX19) of the Act is not determinative as to the issue of the discretionary relief
  of asylum. Maiter of Sulini, 

 (BIA 1982), olariffed.

EXCLUDABLE: Act of 1952—Sec. 212(aX19) [

(aX19)]—Procured visa
                         by fraud or willful misrepresentation of a material
                         fact
                               Sec. 212(020) [

(aX20)]—No valid immigrant visa
ON BEHALF OF APPLICANT:                            ON BEHALF OF SERVICE:
 Stephen M. Perlitsh, Esquire                       Guadalupe Gonzalez
 Cohen & Tucker                                     Appellate Trial Attorney
 1501 Broadway
 New York, New York 10036


BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

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Interim Decision # 2958

  The applicants appeal from the May 17, 1983, decision of the immigration judge. finding them excludable under section 212(a)(19) of
the Immigration and Nationality Act, 

(a)(19) (1982),
denying their application for asylum pursuant to section 208 of the
Act, 8 U.S.O. § 1158 (1982), and granting them temporary withholding of deportation to Afghanistan pursuant to section 243(h) of the
Act, 

(h) (1982). The appeal will be dismissed.
  The applicants' additional excludability under section 212(a)(20)
of the Act, 

(a)(20) (1982), for lack of a valid immigrant or nonimmigrant visa is not at issue and was conceded at the
exclusion hearing. They are natives and citizens of Afghanistan
who arrived in the United States without documentation and submitted applications for asylum and 243(h) relief. They contend that
the immigration judge erred in denying their applications for
asylum as a matter of discretion. They also contend that the immigration judge erred in finding them excludable under section
212(a)(19), merely because they arrived in the United States posing
as transit without visa ("TRWOV") aliens using fraudulently obtained Turkish passports and airplane tickets issued in others'
names. See Matter of Salim, 

 (BIA. 1982). We disagree with both of the applicants' contentions.
  The burden in exclusion proceedings is upon the applicant for admission to establish that he is not inadmissible under any provision
of the Immigration and Nationality Act. See section 291 of the Act,

 (1982); Matter of Ramirez-Rivero, 

(BIA 1981); Matter of Doural, 

 (BIA 1981); Matter of
Healy and Goodchild, 

 (BIA 1979). Section 212(a)(19)
renders excludable from admission-
 (ra)ny alien who seeks to procure, or has sought to procure, or has procured a visa
 or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact.
   The Attorney General has held that the first clause of section
212(a)(19), relating to documents, is both prospective and retrospective, but the second clause of the statute, relating to seeking entry
into the United States, is prospective only. Matter of M-, 

 (BIA 1955); Matter of M-, 

 (BIA, A.G. 1954).
Consequently, an alien whose fraud or material misrepresentations
relate to the procurement of documents is forever barred from admission, unless he obtains a waiver) , On the other hand, a fraud or
misrepresentation in connection with an entry not related to the

  1   See section 241(0(1) of the Act, 8        § 1251(0(1) (1982), as amended by section
8 of the Immigration and Nationality Act Amendments of 1981, 

 Stat. 1611.

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                                             Interim Decision #2958

procurement of documents will invalidate only that entry and will
not preclude a subsequent entry otherwise regular. We must examine the facts of this case for excludability under both clauses of the
statute, since the immigration judge did not specify under which
clause of section 212(a)(19) his finding was based.
  The applicants contend that they are not excludable under section 212(a)(19) because they did not commit any fraud or willful
misrepresentation to a United States official to cause the issuance
of a visa or documentation. See Matter of Kai Hing Hui, 

 (BIA 1975); Matter of Sarkissian, 

 (BIA
1962); Matter of Box, 

 (BIA 1962); Matter of L-L-, 

 (BIA 1961). We closely scrutinize the factual basis for
a possible finding of excludability under the first clause of section
212(a)(19) for fraud in the procurement of entry documents since
such a finding perpetually bars an alien from admission. Matter of
Healy and Goodchild, supra; compare Matter of M-, 

(BIA 1955).
   We conclude that a finding of excludability under the first clause
of section 212(a)(19) of the Act cannot be sustained. The applicants'
intentional misstatements to airline officials concerning their
intent to proceed through the United States to Canada and their
fraudulent use of Turkish passports procured to obtain passage to
this country as TRWOV aliens were material misrepresentations
within the meaning of section 212(a)(19) of the Act. See Matter of
S- and B-C-, 

 (BIA 1960; A.G. 1961); cf. Suite v.
INS, 

 (3d Cir. 1979). Yet, their use of the passport and
statements to airline officials were not made in connection with
the procurement of a visa or their documentation and did not involve misrepresentation before officials of the United States Government. See Matter of Hai Hing Hui, supra; Matter of Sarkissian,
supra; Matter of Box, supra; Matter of L L , supra. Similarly, there
                                         -   -


is no evidence that the applicants made material misrepresentations or committed fraud in connection with their applications for
refugee status. See United States v. Fedorenko, 

 (1981).
Consequently, we fmd that the applicants are not excludable under
the first clause of section 212(aX19) of the Act as aliens, who sought
to procure or who have procured a visa or other documentation by
fraud or by willful misrepresentation of a material fact.
   However, we find the applicants excludable under the second
clause of section 212(a)(19) for seeking to enter the United States by
fraud or a material misrepresentation. See Matter of M-, 

 (BIA 1955); Matter of M-, 

 (BIA, A.G. 1954).
Our decisions in Matter of Box, supra; Matter of L-L-, supra;
Matter of Sarkissian, supra,-   and Matter of Kai Ring Hui, supra,
Interim Decision #2958

are inapplicable since they dealt with cases in which excludability
was charged based on the procurement of documents by fraud or
material misrepresentation. Such is not the case here, where the
fraud was their flying to the United States posing as TRWOV
aliens in order to submit applications for asylum. TRWOV aliens
are admitted under agreements with the transportation lines,
which guarantee their immediate and continuous passage to a foreign country, and do not encounter United States officials until
they arrive at a port of entry. See generally Matter of PAA "Flight
896/10'; 

 (BIA 1959); 1 C. Gordon & H. Rosenfield,
Immigration Law and Procedure § 2.9a (rev. ed. 1982); 2 C. Gordon
& H. Rosenfield, supra, at § 9.20c. Until May of 1979 neither immigration judges nor this Board addressed asylum claims in exclusion
proceedings. Matter of Salim, supra; Matter of Lam, 

(BIA 1981). Consequently, the question of what constitutes fraud or
material misrepresentation in seeking to enter the United States
as an applicant for asylum is an issue of first impression before
this Board. 2
  In United States v. Kavazanjian, 

 (1st Cir. 1980), the
court held that if an alien adopts the TRWOV device solely for the
purpose of reaching the United States and submitting an asylum
application without any intention of pursuing the remainder of the
journey, it constitutes a fraud on the United States. The TRWOV
device is designed to facilitate international travel by permitting
aliens travelling between foreign countries to make a stopover in
the United States without presenting a passport or visa. See section
212(d)(4)(C), 

(d)(4)(C) (1982). To avail himself of the
TRWOV privilege an alien must establish that he is admissible
under the immigration laws; that he has confirmed and onward
reservations to at least the next country beyond the United States;
and that he will continue his journey and depart this country
within 8 hours after his arrival or on the next available transport.
See 

(c) (1984); 

 (1984).
  Pursuant to section 101(a)(15)(C) of the Act, 

(a)(15)(C) (1982), and 

(e) (1984), TRWOV aliens
are exempt from the passport and visa requirements if they are in
possession of travel documents establishing their identity, nationality, and ability to enter some other country. However, 

(e)(3) (1984) specifies that the TRWOV privilege is unavailable to citizens or nationals of Mghanistan, Cuba, Iraq, or Iran.
The basis for that restriction imposed on Afghans is their abuse of

  2 We did not need to address this question in Salim because excludability under

section 212(aX19) was conceded at the exclusion hearing.

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                                                        Interim Decision #2958

the TRWOV device in order to submit applications for asylum as
refugees. See 

, 8005 (1982). It is clear that the applicants committed fraud upon the United States in order to arrive
in this country by posing as Turkish citizens.
   The applicants clearly intended to enter the United States. This
was their ultimate goal. They chose not to wait abroad for a refugee visa. Instead, their first step for eventually entering this country as refugees was to apply for asylum when they arrived in the
United States on February 5, 1983. They needed to be physically
present in this country in order to submit such an application. Yet,
they could not fly here legally because they did not have visas and
were precluded from obtaining TRWOV status as Afghan nationals. They avoided the 

(e)(3) (1983) restriction on
TRWOV status for Afghans by fraud. The four Turkish passports
they fraudulently purchased for $8,000 included airline tickets
issued to the same names listed in the passports. 3 Turkish nationals are not precluded from obtaining TRWOV status pursuant to 

(e)(3) (1983). Posing as Turkish nationals the applicants were able to apply for asylum in New York, circumventing
the orderly procedures for applying for refugee status abroad.
  Section 101(a)(13) of the Act, 

(aX13) (1982), states,
in part, that "[tjhe term 'entry' means any coming of an alien into
the United States from a foreign port or place. . . ." The applicants came here from such a foreign port in order to submit an application for asylum. Consequently, the immigration judge properly
found the applicants excludable under section 212(a)(19) for attempting to enter the United States by fraud. The fraud was an integral step in their scheme to eventually enter as refugees . 4
  We also agree with the immigration judge's denial of their application for asylum as a matter of discretion, even though he found
that they had a well-founded fear of persecution in their native Af-

    Only the sons' passports and airline tickets were made part of the record since
the father's passport included his wife and daughter who proceeded to Colorado
without being detained. The father had a similar Turkish passport and airline
ticket.
  * The dictum in United States v. 

, states that a
TRWOV is not attempting to enter because he is precluded from adjustment of
status by section 245(cX3) of the Act, 

(cX3) (1982), and therefore, his
status is similar to that of a parolee. However, section 209 of the Act, 

 (1982), is the applicable adjustment provision for asylees, not section 245. Section 245(cX3) is applicable only to adjustment applications pursuant to section 245.
Moreover, unlike a parolee, an asylee is not subject to certain gruuuds of excludability and has available more waivers of excludability than a mere parolee. See section
209(c) of the Act. Pursuant to section 101(aX13) of the Act, any coming from abroad,
with limited exceptions, constitutes an "entry."

                                          37
Interim Decision #2958

ghanistan for purposes of 243(h) relief. The applicants erroneously
contend that the immigration judge's discretionary denial was an
abuse of discretion. They also erroneously assume that the finding
of exclu ,14)ility u-ni-Lcr .9crtinn 919()( 1 A) is ri.tArruinctivg, in thPir
case. Even if they had not been found excludable under that section, it does not follow that asylum would have been granted.
   An asylum applicant seeks the favorable exercise of discretion.
Consequently, as Vvith all such discretionary            wA LL applicant has the burden to establish that the favorable exercise of discretion is warranted. Matter of Salim, supra; Matter of Seda, 

 (BIA 1980); Matter of Salmon, 

 (BIA
1978); Matter of Rojas, 

 (BIA 1975); Matter of Arai,

 (BIA 1970). The critical factor for denying the applications for asylum is that by using fraudulent passports they improperly bypassed the orderly procedures prescribed for obtaining
refugee status abroad. The record reflects that the applicants were
sold the airplane tickets and documents which they used to board
an airplane bound for the United States by an organized ring of
smugglers. We have in the past considered it a strong negative
factor to enter the United States with the aid of a professional
smuggler because of the threat it presents to the enforcement of
our immigration laws. Matter of Rojas, supra.
   The number of Afghan refugees admitted into the United States
must .fall within the ceiling of 5,000 allocated by- the President to
Middle East refugees. Therefore, the State Department, Bureau of
Human Rights and Humanitarian Affairs, recommended in its advisory letter that the asylum applications be denied for policy considerations since the applicants misused our immigration laws to
gain an advantage over all other similarly situated Afghan refugees who are following the established procedures for legally immigrating to the United States.
   We have weighed all the equities and conclude that the applications for asylum were properly denied in the exercise of discretion.
Walai v. INS, 

 (S.D.N.Y. 1982); Matter of Salim,
supra. To grant asylum to someone who reaches our shores aided
by            sulugglers, after he Iltnri            escapea from
                                                                va,u
                                                                    the ,ri*,-as
try where he reasonably feared persecution, would only encourage
others to likewise bypass the orderly procedures prescribed for immigrating as a refugee. The applicants should not be placed ahead
of ther ,th=q- citucterl Afghan refu gees The,. ^ray r.lctives in this country are other applicants for asylum. Their contention that being denied asylum could result in an unjust result because the mother and daughter are not in detention and are also
applicants for asylum is illogical. If the mother and daughter

                                      38
                                                       Interim Decision #2958

obtain asylum on their own in their separate applications, then the
applicants could still receive derivative refugee status pursuant to

(e) (1984), and subsequent adjustment of status pursuant to 

(a)(3) (1984). Consequently, the applicants
would not be unduly prejudiced by their asylum application having
been denied. 5
  Finally, the applicants erroneously contend that they cannot be
deported to Pakistan unless Pakistan agrees to their resettlement
there. See Walai v. INS, supra. Under section 7 of the Immigration
and Nationality Act Amendments of 1981, 

Stat. 1611, the applicants can ultimately be deported to any country which will accept them. See Walai v. INS, supra; Matter of
Salim, supra, n.1.
   ORDER: The appeal is dismissed.




   5 Since their excludability derives from the second clause of section 212(aX19), it
would not preclude a subsequent entry otherwise regular in an adjustment application as derivative refugees. See Matter of M-, 

 (B1A. 1955); Matter of
M-, 6 MN Dec. 149 (BTA, A.G. 1954); see also supra note 4.

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