H

                                                        Interim Decision #3193




                              MATTER OF H-
                            In Exclusion Proceedings
                                  A-71537966
                 Decided by Board November 10, 1992

  Proceedings against an alien who has been refused admission under the Visa Waiver
Pilot Program and who has applied for asylum in the United States must be commenced
with a Notice to Applicant for Admission Detained for Hearing before Immigration
Judge (Form 1-122).
EXCLUDABLE: Refused admission pursuant to section 217 of the Act
ON BEHALF OF APPLICANT:                           ON BEHALF OF SERVICE:
  Jules E. Coven, Esquire                            David M. Dixon
  Lebenkoff & Coven                                  Appellate Counsel
  505 Fifth Avenue
  New York, New York 10017

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



   In an oral decision dated March 6, 1992, the immigration judge
terminated the applicant's proceedings and certified his decision to
this Board pursuant to 

(c) (1992). The decision of the
immigration judge will be affirmed.
   The record reflects that the applicant arrived in the United States
on January 13, 1992, and sought entry pursuant to the Visa Waiver
Pilot Program provisions found at section 217 of the Immigration and
Nationality Act, 

 (1988), and 

-.6
(1992).
   The applicant is an 18 year old citizen and national of the People's
                              -    -


Republic of China. Upon his arrival in this country, he presented a
Japanese passport bearing his picture to an Immigration and Naturalization Service inspector. He was referred to secondary inspection for
a closer examination of his passport. The Service inspectors in
secondary inspection determined that the original photograph in the
passport had been replaced by the applicant's photograph; that the
applicant was not the person to whom the passport had been issued;
and that the applicant was a citizen of the People's Republic of China,
not Japan. When the applicant requested asylum in the United States,
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Interim Decision #3193

the Service brought him before an immigration judge for a determination of his eligibility for asylum.
   The applicant appeared before the immigration judge on February
25, 1992. In his oral decision dated March 6, 1992, the immigration
judge noted the absence of a charging document in the record,
terminated proceedings, and then certified his decision to this Board
for review.'
   On appeal, the Service states that the immigration. judge's decision
should be affirmed and that the case should be remanded for the
issuance of a Notice to Applicant for Admission Detained for Hearing
before Immigration Judge (Form 1-122). The applicant has submitted
no brief on appeal.
   Section 217 of the Act provides for a Visa Waiver Pilot Program
under which visitors to the United States from specified countries may
stay in the United States for up to 90 days without a visa. 2 Section
217(b) states that
   Lain alien may not be provided a waiver under the pilot program unless the alien has
   waived any right
       (1) to review or appeal under this Act of an immigration officer's determination
   as to the admissibility of the alien at the port of entry into the United States, or
       (2) to contest, other than on the basis of an application for asylum, any action for
   deportation against the alien.
   Subsequent to the enactment of section 217 of the Act, the Service
promulgated regulations implementing the Visa Waiver Pilot Program. In Matter of L-, 

 (BIA 1992), we held that,
pursuant to the regulatory provisions regarding deportability determinations under section 217 of the Act, proceedings against an alien
admitted under the Visa Waiver Pilot Program who has applied for
asylum in the United States must be commenced with an Order to
Show Cause. The case at hand requires us to interpret the regulatory
provisions regarding admissibility determinations for aliens who apply
for admission under section 217 of the Act, are found inadmissible at
the port of entry, and then apply for asylum.
    The record reflects that on April 20, 1992, the applicant filed a motion to change
venue with the Office of the Immigration Judge in Miami. Since the immigration judge
had certified his decision to this Board on March 6, 1992, he no longer retained
jurisdiction over the applicant's case when the motion was filed Given the fact that we
will affirm the immigration judge's termination of proceedings for lack of jurisdiction in
this case, we need not address the applicant's request for a change of venue.
  2 To date, the following countries have been designated as Visa Waiver Pilot Program
countries based on the criteria set forth at sections 217(a)(2)(A) and (c) of the Act: the
United Kingdom, Japan, France, Switzerland, Germany, Sweden, Italy, the Netherlands,
Andorra, Austria, Belgium, Denmark, Finland, Iceland, Liechtenstein, Luxembourg,
Monaco, New Zealand, Norway, San Marino, and Spain. See 

(a) (1992).

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  The current regulatory provisions regarding admissibility determinations are set forth in 

(b) and 236.9 (1992). The
regulation at 

(b)(1) (1992) provides:
   An alien who applies for admission under the provisions of section 217 of the Act,
   who is determined by an immigration officer not to be eligible for admission under
   that section or to be excludable from the United States under one or more of the
   grounds of excludability listed in section 212 of the Act (other than for lack of visa),
   or who is in possession of and presents fraudulent or counterfeit travel documents,
   will be refused admission into the United States and removed. Such refusal and
   removal ... shall be effected without referral of the alien to an immigration judge
   for further inquiry, examination, or hearing, except that an alien who presents himself
   or herself as an applicant for admission under section 217 of the Act, who applies for
   asylum in the United States must be referred to an immigration judge for further
   inquiry. (Emphasis added.)
In relevant part, 

 (1992) provides:
   Pursuant to section 217(b)(4)(A) [sic] of the Act, 3 an alien who applies for admission
   to the United States under the provisions of that section must waive any right to
   review or appeal an immigration officer's determination as to the admissibility of the
   alien at a port of entry, other than on the basis of an application for asylum. An alien
   applicant for athrilbsiun under sectiun 217 of the Act shall be removed from the
   United States upon a determination by an immigration officer ... that the alien is
   inadmissible in accordance with procedures in § 217.4(b) of this chapter except that
   such an alien who applies for asylum in the United States shall be referred to an
   Immigration fudge for fiirri:er inquiry as provided in section 25S of the Act and
   § 236.3 of this part. (Emphasis added.)
   Section 235(b) of the Act, 

(b) (1988), the mechanism through which the Service places aliens into exclusion proceedings before an immigration judge, provides in relevant part:
   Every alien ... who may not appear to the examining immigration officer at the
   port of arrival to be clearly and beyond a doubt entitled to land shall be detained for
   further inquiry to be conducted by [an immigration judge].
   Additionally, the regulations at 

(a) (1992) provide:
   If, in accordance with the provisions of section 235(b) of the Act, the examining
   immigration officer detains an alien for further inquiry before an immigration judge,
   he shall immediately sign and deliver to the alien a Notice to Alien Detained for
   Hearing by an Immigration Judge (Form 1-122).
  Finally, the regulations provide that "[j]urisdiction vests and
proceedings before an Immigration Judge commence when a charging
document is filed with the Office of the Immigration Judge." See 

 (1992).
  In accordance with the regulations cited above, a Service officer
must refer a Visa Waiver Pilot Program applicant who applies for

  3 We note that section 217(b)(4)(A) of the Act was redesignated as section 217(b)(1) by
section 201(a)(5)(B) of the Immigration Act of 1990, 

 Stat. 4978,
5013 (effective Nov. 29, 1990).

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asylum "to an immigration judge for further inquiry as provided in
section 235 of the Act." See 

 (1992). Inasmuch as
section 235 of the Act contains no separate provisions regarding Visa
Waiver Pilot Program applicants, we conclude that the exclusion
proceedings of a Visa Waiver Pilot Program applicant who has applied
for asylum commence when a Form 1-122 has been filed with the
Office of the Immigration Judge. See section 235(b) of the Act; 

, 235.6(a) (1992).
   In this case, the applicant attempted to enter the United States
under the Visa Waiver Pilot Program. He was refused admission by
the Service officer and then applied for asylum. Inasmuch as the
Service has not filed a Form 1-122 with the Office of the Immigration
Judge, we find that proceedings before the immigration judge have not
commenced. Consequently, we will affirm the immigration judge's
decision terminating proceedings in this case based on his determination that he lacked jurisdiction to conduct the applicant's hearing.
   ORDER          The immigration judge's decision is affirmed.




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