D-L- & A-M

                                                            Interim Decision #3162




                      MATTER OF D-L- & A-M-

                           In Exclusion Proceedings

                                    A-29595639
                                    A-29595640

                    Decided by Board October 16, 1991

  Applicants for admission to the United States, who were not traveling in transit
without visa status, are not excludable under section 212(a)(19) of the Immigration and
Nationality Act, 

(a)(19) (1988), where the applicants did not present or
intend to present fraudulent visas or travel documents or documents containing willful
misrepresentations to an authorized official of the United States Government at the
time of their attempted entry. Matter of Shirdel, 19 l&N Dec. 33 (BIA 1984),
distinguished.
EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [

(a)(19)]—Fraud or
                        willful misrepresentation of a material fact (both
                        applicants)

                               Sec. 212(a)(20) [

(a)(20)]—No valid
                                 immigrant visa (both applicants)

ON BEHALF OF APPLICANTS:                             ON BEHALF OF SERVICE:
 Pro sel                                              Hans Burgos
                                                      General Attorney

BY: Milhollan, Chairrnan; Dunn; Morris, and Vacca, Board Members. Concurring
     Opinion: Heilman, Board Member.



   In a decision dated March 23, 1990, an immigration judge found
the applicants excludable as alleged, denied their applications for
asylum and withholding of exclusion and deportation under sections
208(a) and 243(h) of the Immigration and Nationality Act, 

(a) and 1253(h) (1988), and ordered them excluded and
deported from the United States. The applicants have appealed from

  1 The applicants' counsel filed a motion to withdraw as attorney of record. The motion
indicates that the applicants no longer wish counsel to represent them. The applicants'
last known address is indicated on the certificate of service accompanying the motion.
We find the motion to conform to our requirements set forth in Matter of Rosales, 

 (BIA 1988). Accordingly, the motion to withdraw is granted.

                                          409
Interim Decision #3162

that decision. The appeal will be sustained in part and dismissed in
part.
   The applicants, husband and wife, are natives and citizens of Cuba
who arrived in the United States on April 11, 1989, by commercial
 flight from Spain. At their March 23, 1990, exclusion hearing, the
 applicants conceded excludability under section 212(a)(20) of the Act,
 

(a)(20) (1988), but contested excludability under
 section 212(a)(19) of the Act.. The male applicant testified that, upon
 their arrival in Miami, he and his wife surrendered to immigration
 officials the photo-switched Spanish passport they had used to board
the airplane in Spain, identified themselves as Cuban citizens,
presented their Cuban birth certificates, and requested asylum in the
United States. The immigration judge found the applicants excludable
under both grounds. Although he found that the applicants had not
attempted to use the fraudulent document to enter, the immigration
judge based his finding of excludability under section 212(a)(19) of the
Act on the fact that the applicants used the fraudulent Spanish
passport in order to arrive in the United States and request asylum.
Following the finding of excludability, the applicants applied for
asylum and withholding of deportation. The female applicant's asylum
application is based on the asylum claim of her husband_
   Regarding his request for asylum and withholding of deportation,
the male applicant stated in his Request for Asylum in the United
States (Form 1-589) that he was arrested by the Cuban police in 1963
for his activities with the National Liberation Movement ("NLM"), an
organization that intended to overthrow the Castro government. The
male applicant reported in his application that he held the rank of
captain in the NLM and that he was arrested, along with 12,000
others, for conspiring to prepare a landing site where weapons were to
be dropped for use in an armed uprising against the Castro regime.
   At his exclusion hearing, the male applicant testified that, following
his arrest, he was detained for 3 months without a trial and was
tortured and raped while in jail. He stated that his father, arrested the
same day for his own involvement with the NLM, was convicted of
conspiring against the powers of the state and was sentenced to 5 years'
imprisonment. He testified that his father was mistreated in prison
and died 7 months after his release. The male applicant asserted that,
following his arrest, the authorities forbade him from working at his
former job because he was a counterrevolutionary. He related that he
had no alternative but to harvest rice and tobacco on a small parcel of
land which he owned. He explained that he was arrested on other
occasions, questioned, and released. The most recent arrest, and the
only arrest described specifically by the male applicant at his hearing,
occurred in 1980, during the Martel boatlift, when he was held for 1
                                                        Interim Decision #3162

day and threatened that he would be tried for the same crimes as his
father.
   The male applicant testified that he, his wife, and their son left
Cuba for Spain in 1983, at which time he was forced to give all of his
property to the Cuban Government in order to leave. On crossexamination, he explained that he and his family lived in Spain for 6
years, although he had been attempting to obtain a visa to the United
States since 1963; that he and his family were temporary residents in
Spain; that the temporary residency was renewable annually; that he
and his son sold cigars on the street while his wife worked as a cleaning
woman; and that if he had obtained a work contract, his family's
temporary residency in Spain could then have been made permanent.
  The immigration judge denied the male applicant's request for
asylum and withholding of deportation on statutory grounds and went
on to find that he also did not merit asylum as a matter of discretion.
   On appeal, the applicants argue that the immigration judge erred in
finding them excludable under section 212(a)(19) of the Act based
solely on the manner in which they arrived in the United States. The
applicants also contend that the immigration judge erred in denying
them asylum and withholding of deportation. They assert in this
regard that the immigration judge failed to give proper weight to the
male applicant's testimony regarding his torture, rape, and abuse
during his imprisonment by the Castro regime in 1963, as well as the
subsequent arrests and detentions that continued until he left Cuba.
   We will first examine the issue of the applicants' excludability under
section 212(a)(19) of the Act. The burden in exclusion proceedings is
upon an 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, 

 (1988); Matter of De La Nues,

 (BIA 1981); Matter of Healy and Goodchild, 

 (BIA 1979). Section 2I2(a)(19) of the Act renders excludable
from admission
  [a]m, alien who, by fraud or willfully misrepresenting a material fact, seeks to
  procure, or has sought to procure or has procured, a visa, other documentation, or
  entry into the United States or other benefit provided under this Act.

   It is well established that fraud or willful misrepresentation of a
material fact in the procurement or attempted procurement of a visa,
or other documentation, must be made to an authorized official of the
United States Government in order for excludability under section
212(a)(19) of the Act to be found. See Matter of Shirdel, 

 (BIA 1984); Matter of L -L -, 

 (BIA 1961).
   The case at hand, however, concerns the issue of when an alien is
excludable for fraud or willful misrepresentation of a material fact in
Interim Decision #3162

seeking to procure entry into the United States. In Matter of Shirdel,
supra, we found Afghan nationals arriving in the United States with
fraudulent Turkish passports in order to submit applications for
asylum to be excludable under section 212(a)(19) of the Act for seeking
entry into the United States by fraud or material misrepresentation?
However, the aliens in Shirdel were traveling under a special status
known as transit without visa ("TRWOV"). 3 In Shirdel, we did not
reach the issue of when aliens other than those in the TRWOV status
will be found excludable for seeking entry by fraud or misrepresentation.4 We now hold that, outside of the TRWOV context addressed in
Shirdel, an alien is not excludable under section 212(a)(19) of the Act
for seeking entry by fraud or willful misrepresentation of a material
fact where there is no evidence that the alien presented or intended to
present fraudulent documents or documents containing material
misrepresentations to an authorized official of the United States
Government in an attempt to enter on those documents.
   In the instant case, the evidence shows that the applicants purchased a fraudulent Spanish passport bearing a nonimmigrant visa for
the United States. Upon arrival in Miami, the applicants surrendered
the false document to United States immigration officials, immediate-

   2 The aliens in Matter of Shirdel did not attempt to use the fraudulent documents to
 enter. We based our finding of fraud in Shirdel on the fact that the aliens' use of the
 fraudulent passports in order to avail themselves of the privilege of obtaining transit
without visa status was an integral step in their scheme to eventually enter as refugees
 and therefore constituted "seeking to enter by fraud" under section 212(a)(19) of the
Act.
   3 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
ofPAA "Flight 896/10," 

 (BIA 1959). The TRWOV device is designed to
facilitate international travel by permitting aliens traveling between foreign countries to
make a stopover in the United States without presenting a passport or visa. See section
212(d)(4)(C) of the Act. 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 from this country within 8 hours after his arrival or
on the next available transport. See 

(c) (1991).
   4 We note that at the time Shirdel was decided, section 212(a)(19) of the Act rendered
excludable from admission
   lainy 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.
We find that the present version of section 212(a)(19) of the Act does not change the
analysis or outcome of Matter of L.Ir, supra, or Matter of Shirdel, supra. The underlying
intent of section 212(a)(19) continues to be to exclude those attempting to commit fraud
or material misrepresentations in the presence of authorized officials of the United
States Government.
                                                   Interim Decision #3162

ly revealed their true identity, and asked to apply for asylum. This
action does not provide a basis for excludability under section
212(a)(19) of the Act, as it does not involve fraud or misrepresentation
to an authorized official of the United States Government. Therefore,
we find that the applicants have shown they are not excludable under
section 212(a)(19) of the Act.
   Next, we turn to the application for asylum and withholding of
deportation. To be eligible for withholding of deportation, an alien
must show a clear probability of persecution in the country designated
for deportation, on account of race, religion, nationality, membership
in a particular social group, or political opinion. INS v. Stevic, 

 (1984). This means that the alien must establish that it is more
likely than not that he would be subject to persecution for one of the
grounds specified. 

   An applicant for asylum must establish that he is unwilling or
unable to return to his country because of persecution or a "well-founded fear" of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion. A "well-founded fear" of persecution may be established upon a lesser showing
than the clear probability of persecution required for withholding of
deportation under section 243(h) of the Act. An applicant for asylum
has established a "well founded fear" of persecution if he shows that a
                        -


reasonable person in his circumstances would fear persecution. See
sections 101(a)(42)(A), 208(a) of the Act, 

(a)(42)(A),
1158(a) (1988); INS v. Carcioza-Fonseca, 

 (1987);
Guevara-Flores v. INS, 

 (5th Cir. 1986), cert. denied, 

 (1987); Matter of Mogharrabi, 

 (BIA 1987).
   Where an alien has shown that he has been persecuted in the past on
account of race, religion, nationality, membership in a particular social
group, or political opinion, the likelihood of present persecution then
becomes relevant as to the exercise of discretion, and asylum may be
denied as a matter of discretion if there is little likelihood of present
persecution. Matter of Chen, 20 INN Dec. 16 (BIA 1989).
   In this case, we find that the male applicant has failed to establish a
well-founded fear of detention or harm upon returning to Cuba on
account of his political opinion or other statutory grounds. First, the
male applicant has not shown a well-founded fear of persecution on
the basis of his arrest and 1-day detention in 1980. He has not shown
that the circumstances of that brief detention and interrogation
constituted persecution. See Zalega v. INS, 

 (7th Cir.
1990). In addition, he continued to live and work in Cuba without
incident for 3 years following his 1980 detention.
   Second, the male applicant has not established a well-founded fear
of persecution based on his detention in 1963. As he was released after
                                   413
Interim Decision #3162

3 months and continued to live and work in Cuba for 20 years
thereafter, he has not shown that the Cuban Government maintains an
interest in him now for his activities in 1963. Matter of Acosta, 

 (BIA 1985), modified on other grounds, Matter of Mogharrabi, supra.
   Third, the male applicant has not established a well-founded fear of
persecution based on the refusal of Cuban Government officials to
allow him to return to his job following his release from detention. The
male applicant admitted he was able to make a living raising tobacco
and rice on land that he owned. He therefore failed to show that the
Cuban Government had placed him in a situation so severe as to
deprive him of a livelihood. See Dunat v. ,Hurney, 

(3d Cir. 1961), on reargument (1962).
   Finally, we need not reach the issue of whether the male applicant's
3-month detention in 1963 or the restriction on his employment
following his release constituted past persecution because, even if it
did, we find that asylum should be denied in the exercise of discretion.
See Matter of Pula, 19 I&N Dec_ 467 (MA 1987). There is no evidence
that the applicants have any family ties to the United States.
Moreover, as noted above, there is little likelihood that the Cuban
Government would take action against the male applicant now for the
activities which led to his 1963 detention. Matter of Chen, supra.
Further, the applicants lived and worked free from harm in Spain for 6
years as lawful temporary residents with the option to become
permanent residents of that country. Consequently, we find that the
applicants were firmly resettled in Spain. See Matter of Soleimani, 

 (BIA 1989). The applicants demonstrated no compelling
countervailing equities which would warrant a discretionary grant of
asylum despite their firm resettlement in a third country. Therefore,
we will deny their asylum claim as a matter of discretion. Matter of
Soleimani, supra; Matter of Pula, supra.
   Because the male applicant has failed to satisfy the lower burden of
proof required for asylum, it follows that he has also failed to satisfy
the clear probability standard of eligibility required for withholding of
deportation. See, e.g., INS v. 

 Matter of
Mogharrabi, supra.
   Inasmuch as the applicants have shown they are not excludable
under section 212(a)(19) of the Act, the appeal of the immigration
judge's finding of excludability under section 212(a)(19) of the Act will
be sustained. Since the applicants have not met their burden of proof
on their asylum and withholding of deportation claims, the appeal of
the denial of those claims will be dismissed.
   ORDER:          The appeal is sustained and the decision of the

                                  414
                                                 Interim Decision #3162

immigration judge is reversed insofar as it finds the applicants
excludable under section 212(a)(19) of the Immigration and Nationality Act.
   FURTHER ORDER:               The appeal is dismissed and the decision of the immigration judge is affirmed insofar as it denies the
applicants' applications for asylum and withholding of exclusion and
deportation.
CONCURRING OPINION: Michael J. Heilman, Board Member

   I respectfully concur.
   While I agree with the majority's ultimate conclusion regarding the
claim of persecution, I believe that the majority's analysis is ambiguous and may be misleading.
   The applicant claims that he was persecuted and faces future
persecution on account of his participation in Cuba in the "National
Liberation Movement." Evidence that this organization existed is
totally lacking from this record, and the immigration judge and the
majority have accepted the applicant's testimony relating to the
existence and activities of this organization at face value. According to
the applicant's testimony, he was arrested in 1963, along with his
father, the two of them being members of the "Organized Revolutionary Movement." They were plotting to overthrow the Cuban Government in an armed uprising. The applicant testified that he was a
"captain" in this organization. Following his arrest, he was allegedly
held for 3 months without trial, during which time he was supposedly
tortured and raped. He was subsequently released and told he could
not work at his former employment. Allegedly, his father was also
arrested at the same time, but was sentenced to 5 years' imprisonment.
The father died shortly after his release from prison. After the
applicant was released, he returned to a family farm, where he raised
various crops for sale. He was employed in this manner on his farm
until 1983, when he left Cuba to live in Spain with his wife and
children.
   The only other information about the applicant and the activities of
the "National Liberation Movement," or "Organized Revolutionary
Movement," as it is variously named in the record, is that found in the
asylum application itself. There, in an attached supplementary statement by the applicant, the "National Liberation Movement" is
described as an armed organization. It supposedly had a "national
coordinator" and apparently had supporters all over Cuba. According
to the supplementary statement, the arrest of the national coordinator
had "far-reaching consequences as approximately 12,000 men were
arrested for alleged participation in the conspiracy." If what the

                                  415
Interim Decision #3162

applicant states about this organization and the arrests is true, .one
would think that some independent evidence of the existence of this
organization and the events described would have been provided.
  This Board held in Matter of Dass, 

 (BIA 1989),
that an applicant for asylum has the burden of proof in establishing
eligibility for asylum. As we stated there, we did not agree that "the
introduction of supporting evidence is purely an option with an
asylum applicant in the ordinary case. Rather, the general rule is that
such evidence should be presented where available." Id. at 7. We
observed in this context that the more sweeping the claim of
persecution, the more likely it was that corroborative evidence would
be available. Surely, the arrest of 12,000 persons in one fell swoop in
1963 falls within the category of verifiable events, as does the existence
of the group whose activities form the basis for his claim. The lack of
corroboration strikes me as a fundamental evidentiary failing.
   But even if one assumes for the sake of argument that the events
related by the applicant did take place, it is not clear to me that a
prima facie claim of persecution has been made. The applicant
described his participation in a conspiracy to overthrow the Government of Cuba by force, some 2 years after the spectacular failure of the
Bay of Pigs. It is generally understood that a conspiracy to overthrow a
government by force is a criminal act. The record is completely silent
on the nature and purpose of the organization in which the applicant
participated.
   It has been this Board's position that a "legitimate and internationally recognized government" has the right to "defend itself from an
armed rebellion." Matter of Izatula, 

 (BIA
1990). We recognized an exception where citizens do not "have an
opportunity to seek change in the political structure of the government
via peaceful processes." 

 In that case, we considered and found
persuasive evidence that citizens had 'neither the right nor the ability
peacefully to change their government,"' a (quoting Committees on
Foreign Relations and Foreign Affairs, 101st Cong., 1st Sess., Country
Reports on Human Rights Practices for 1988 1273 (Joint Comm. Print
1989)), and so concluded that the respondent had established that he
was at risk of being punished for "political activities" even if those
activities included armed rebellion. 

   It thus appears to me that an applicant for asylum who wishes to
benefit from the exception outlined in Matter of Izatula, supra, must
establish at a minimum two factors. The first thing he must do is
establish by persuasive evidence the character of the government he
was in rebellion against and, more particularly, the fact that citizens
have no right to peacefully change their government. Secondly, once
this is done, the applicant must establish the nature of his opposition

                                   416