Z

                                                             Interim Decision #3208




                                MATTER OF Z-

                            In Exclusion Proceedings
                                     A-72969131

                     Decided by Board October 5, 1993

(1) Under the precedent decisions of the Board of Immigration Appeals, an "entry" into
   the United States under section 101(a)(13) of the Immigration and Nationality Act, 8
   U.S.0 § 1101(a)(13) (1988), requires: (1) a crossing into the territorial limits of the
   United States, i.e., physical presence; (2) (a) inspection and admission by an
   immigration officer, or (b) actual and intentional evasion of inspection at the nearest
   inspection point; and (3) freedom from official restraint.
(2) In exclusion proceedings where the alien has no colorable claim to lawful permanent
   resident status, the burden of proof is upon the alien to show that he has effected an
   entry and that exclusion proceedings are therefore improper.
(3) The Board found that the alien had made an entry into the United States when he
   debarked from his vessel at a place not designated as a port of entry and fled into the
   interior undetected, with every apparent intention of evading immigration inspection.
(4) The mere fact that the applicant entered an area which was under federal jurisdiction
   for reasons unrelated to immigration processing does not establish that he was under
   "official restraint" and does not render his movement something less than an entry.

EXCLUDABLE: Act of 1952—Sec. 212(a)(7)(A)(i)(I) [8 U.S.0 § 1182(a)(7)(A)(i)(I)j-
                         No valid immigrant visa
ON BEHALF OF APPLICANT:                               ON BEHALF OF SERVICE:
 Cathy H. Tao, Esquire                                   Elena Kusicy
 261 South Figueroa Street, Suite 205                    General Attorney
  Los Angeles, California 90012

BY: Milhollan, Chairman; Dunne, Morris, vacca, and Heilman, Buard Members


   In a decision dated July 19, 1993, an immigration judge found that
the applicant was not properly in exclusion proceedings under section
235(b) of the Immigration and Nationality Act, 

(b)
(1988), and he therefore terminated the proceedings. The Immigration
and Naturalization Service appealed. The appeal will be dismissed
   The applicant is a male native and citizen of the People's Republic
of China. He arrived at the shores of the United States in the early
morning hours of May 24, 1993, on a cargo ship with about 200
compatriots. He came ashore with no proper entry documents and was
apprehended later in the morning of the same day somewhere in the
vicinity of Fort Point, the Presidio, and the Golden Gate National
Interim Decision #3208

Recreation Area in San Francisco, California. The Service issued him
a Notice to Applicant For Admission Detained for Hearing Before
Immigration Judge (Form 1-122), alleging that he was excludable
under section 212(a)(7)(A)(i)(I)          of the Act, 

(a)(7)(A)(i)(1) (Supp. IV 1992).
   During the proceedings below, the applicant, through counsel,
moved for termination of the exclusion proceedings on the ground that
he had made an entry into the United States, and that exclusion
proceedings were therefore improper. The immigration judge granted
the motion, and the Service appealed.
   The sole issue on appeal is whether the applicant made an "entry"
into the United States, as that term is interpreted under the Immigration and Nationality Act. If he did so, exclusion proceedings, which are
instituted to prevent or control such entry, are not authorized and
must be terminated.
   Section 101(a)(13) of the Act, 

(a)(13) (1988),
defines "entry" for immigration purposes, in relevant part, as "any
coming of an alien into the United States, from a foreign port or place
or from an outlying possession, whether voluntary or otherwise." This
Board, in addressing the more specific questions of whether a given
case involves an "entry," has formulated a more precise definition of
this term. Under our precedent decisions, an "entry" requires: (1) a
crossing into the territorial limits of the United States, i.e., physical
presence; (2) (a) inspection and admission by an immigration officer,
or (b) actual and intentional evasion of inspection at the nearest
inspection point; and (3) freedom from official restraint. Matter of
Patel, 

 (BIA 1991), and cases cited therein.
  In the instant case, the Service contends that no entry has been
shown. The Service argues, first, that the alien's intent to evade
inspection at the nearest inspection point has not been established,
and second, that the applicant was, at all relevant times prior to
debarkation and thereafter, under official restraint. We disagree.
   The circumstances of the applicant's arrival in the United States are
established by the documents submitted by both the applicant and the
Service. The applicant himself did not testify.
   The applicant came to the shores of the United States aboard a
vessel known as the Pai Sheng, a cargo ship under the Honduran flag
with a crew of 10 and a "cargo" of passengers numbering about 200.
At around midnight on the night of May 23, 1993, the Pai Sheng took
an irregular course outside of normal lanes of shipping and slipped
beneath the Golden Gate Bridge in San Francisco, California. As the
vessel made its unauthorized approach, it was radar-monitored by an
officer of the United States Coast Guard. The officer observed that the
vessel was behaving in a suspicious manner and notified other federal
                                  7n5
                                                            Interim Decision #3208

agencies in an attempt to get an investigation underway. Meanwhile,
the Pai Sheng apparently moored at the first available dock inside the
bay, a dock at Fort Point which was no longer in general use.
   The passengers on board the Pai Sheng disembarked at the dock at
approximately 1 a.m. on Wednesday, May 24, 1993. At the time of
debarkation there were no officers of the Service nor officers of any
other enforcement agency on hand at the dock. Thus, the applicant's
debarkation went unwitnessed by any United States official. Upon
debarkation, the aliens entered the Golden Gate National Recreation
Area, Fort Point, and the Presidio, a military base area abutting the
Golden Gate Bridge. At this time the area was closed to the public, as
it typically was from dusk until after dawn.
    At about 1:18 a.m., information from a Coast Guard officer
regarding the Pai Sheng was relayed to an officer of the United States
Department of the Interior Park Police. The Coast Guard officer
advised that the vessel was suspicious and had docked at or near the
Old Coast Guard Station on the south side of San Francisco Bay, close
to the Golden Gate Bridge.' However, when the Park Police officer
arrived, the vessel was already outbound, passing under the Bridge. No
one was at or near the dock.
    A short time later, between 1:18 a m. and 1:45 a.m., United States
Military Police from the Presidio stopped a pickup truck at a
considerable distance from the docks to investigate a vehicle equipment violation. In the truck were either seven or nine undocumented
Chinese immigrants. According to the Park Police report, the driver of
the truck indicated that he had picked up the aliens a mile or 2 back,
by prearrangement, because he had been promised payment in
exchange for delivering them to a location in downtown San Francisco.
    At approximately 2 a.m., a Park Police officer observed 50 to 150
more suspected undocumented aliens in a Fort Point parking lot. They
were entering a dozen or so private vehicles. Upon the officer's
approach, the subjects fled the vehicles and scattered into the nearby
woods and hills, while most of the drivers sped away. Four of the
vehicles remained and apparently were abandoned. The officer called
for assistance, and a coordinated enforcement operation began.
   The record reflects that by 10 am. on May 24, 1993, officers of the
United States Park Service Police, the Golden Gate Bridge Police,
Military Police from the Presidio military base, and security officers
from a local United States Veterans Administration Hospital had
placed in custody 170 of the former passengers of the Pai Sheng.
   The record further reflects that the aliens apprehended during the

  I Evidently, no one was certain whether the vessel had docked at the Old Coast Guard
Station or at the nearby abandoned dock at Fort Point.

                                          7(19
Interim Decision #3208

foregoing operation were not all apprehended in the same place, but
were broadly dispersed. A United States Department of the Interior
Park Police Incident Report, which was submitted for the record by
both parties, states that the "subjects were rounded up from as far
away as the Great Meadow, Lincoln Park, Clement St. and the Golden
Gate Bridge." Further, 12 aliens from the Pal Sheng were apprehended
by the San Francisco Police Department after people in residential
areas of the city had complained of aliens in their back yards. Another
Pai Sheng passenger was apprehended at a coffee shop in San
Francisco three blocks south of the boundary of the Presidio.
   The applicant and the other former passengers of the Pal Sheng
were taken to a building beneath the Golden Gate Bridge to be held
until the Immigration and Naturalization Service could effect their
immigration processing. The Service issued the applicant a Form I-
122, thus commencing these exclusion proceedings. The applicant was
alleged to be excludable as an intending immigrant without proper
entry papers, in violation of section 212(aX7)(A)(i)(I) of the Act.
   Later the same day, the Coast Guard intercepted the Pal Sheng
about 45 miles from San Francisco. The vessel returned to the Bay.
According to the affidavit of a Service officer submitted for the record,
the vessel's crew were questioned, and some of them agreed to give
statements. These statements, and the circumstances under which the
ship had operated, indicated to the officer that the Pai Slung was
involved in an organized smuggling operation in which 200 or more
Chinese immigrants were brought to the United States and delivered
without immigration papers, in a manner similar to that of other
smuggling operations in the officer's recent experience.
   On the basis of the foregoing, the immigration judge found that the
applicant had actually and intentionally evaded inspection, had
proceeded into the United States free from official restraint, and had
thereby effected an entry. The immigration judge therefore terminated
the exclusion proceedings.
   On appeal, the Service correctly points out that the burden of proof
to show that the exclusion proceedings are not proper is upon the
applicant. See section 291 of the Act, 

 (1988); Matter
of Matelot, 18 l&N Dec. 334, 335 (BIA 1982) (holding that absent a
colorable claim to lawful permanent resident status, the relevant
burden is upon the alien). In this case, therefore, the applicant must
bear the burden of showing the three elements necessary for establishing an entry, namely, (1) physical presence, (2) actual and intentional
evasion of inspection at the nearest inspection station, and (3) freedom
from official restraint. Matter of Patel, supra, at 4; Matter of Pierre, 

 (BIA 1973).
   The Service then argues that the applicant cannot have satisfied that
                                   710
                                                  Interim Decision #3208

 burden in this case for two reasons. First, the Service argues, the
 evidence in the record is insufficient to establish that the applicant
 actually and intentionally evaded inspection. The Service suggests that
 mere flight or hiding does not establish such intent. The Service
 suggests that the applicant may, for example, have intended to present
himself at the nearest inspection station, and that he may have been
acting furtively in the meantime in order to evade the smugglers who
 ran the illegal operation. While such a scenario is not beyond the realm
 of the theoretically possible, we find, as did the immigration judge,
that the documents in the record establish by a preponderance of the
evidence that the applicant was not attempting to proceed to the
nearest inspection station, but actually and intentionally evaded
 inspection.
    In determining the alien's intent in this context, we are not bound to
find that no relevant intent has been established simply because the
applicant has remained silent, as the Service seems to suggest.
Evidence of intent may be established not only by the applicant's own
statements, but also by other evidence in the record, even in the face of
an applicant's contrary testimony. Cheng v. INS, 

(2d Cir. 1976) (holding that crossing the border from Canada in a
smuggler's van at night without headlights, and turning away from the
newest inspection station, provided "overwhelming" evidence of
actual and intentional evasion of inspection); see also Giacone v. Corsi,

 (2d Cir. 1933); Matter of Estrada-Betancourt, 

 (BIA 1967) (finding that an entry was effected when the
aliens did not proceed by the ordinary route to the nearest inspection
station).
    In the instant case, the unrebutted documentary evidence is most
persuasive that the applicant intended to enter the United States
illegally. For example, the applicant came to the United States on the
Pai Sheng in cooperation with a smuggling operation and without
travel documents. While the record is silent as to the applicant's own
specific arrangements, other passengers of the Pai Sheng paid substantial sums to be illegally smuggled to the United States, and there is no
reason to believe the applicant was an exception. Further, the
applicant, having debarked in San Francisco at night at an abandoned
dock, did not seek out United States officials or wait for their arrival.
Nor, apparently, did he go to them when they appeared on the scene.
In fact, the record appears to reflect that not a single passenger did so.
Instead, they all fled the dock area so quickly that, about a quarter of
an hour later, when the first enforcement officer arrived to investigate,
there was no one left at the docks. Further, when other passengers of
the applicant's -vessel—and possibly the applicant—saw uniformed
officers, they did not request information, ask for asylum, or otherwise
                                   ' 1 1
Interim Decision #3208

act consistently with a desire to submit themselves for immigration
inspection at the earliest opportunity. Instead, they scattered.
   Finally, the applicants who were apprehended were relatively
broadly dispersed and clearly trying to evade the authorities. Others
evaded the authorities successfully and were not apprehended in the
enforcement sweeps described above. There is no evidence in the
record that a single alien from the Pai Sheng at any time deliberately
surrendered himself to the authorities for any reason. These circumstances are markedly different from those in the cases upon which the
Service relies for support. See Matter of Phelisna, 18 UN Dec. 272,
273 (BIA 1982), remanded, 5 

 (E.D.N.Y. 1982), appeal
dismissed, 

 (2d Cir. 1983) (Board finding no evasion
where the applicant was apprehended near the beach and indicated she
was seeking immigration officials); Pierre v. Rivkind, 

(S.D. Fla. 1986), rev'd on other grounds, 

 (11th Cir.
1987) (finding no evasion where the petitioner landed and hid in a
mangrove swamp, but came out and did not run away when
authorities called to her).
   We find on the basis of the foregoing, and particularly in the
absence of any evidence to the contrary, that the evidence here
establishes that the applicant, who was a passenger on the Pai Sheng,
actually and intentionally evaded inspection at the nearest inspection
station. The documentary evidence in support of this inference is more
than sufficient to overcome the Service's speculations in rebuttal that
the applicant could theoretically have had other intentions. The
Service's first argument is without merit.
   The Service's second argument focuses upon the issue of official
restraint. The Service argues that the applicant cannot have satisfied
his burden of showing an entry because from the time his vessel
entered San Francisco Bay to the time he was apprehended, he was
never free from official restraint The Service contends that the radar
surveillance of the applicant's vessel, the restricted nature of the
federal area into which he debarked and fled, and the establishment of
a perimeter around that area by federal law enforcement officials
means that the applicant's presence in the United States was at all
times under official, albeit sometimes "constructive," restraint.
   The Service further suggests that the applicant's situation is similar
to that of an alien in an airport who attempts to evade immigration or
customs officials by hiding in a restroom area, and who does not
thereby effect an "entry."
   The Service points out that San Francisco's Presidio area, Fort
Point, and the Golden Gate National Recreation Area are federally
controlled areas under the jurisdiction of the United States armed
services and the United States Department of the Interior. These areas
                                   71 2
                                                 Interim Decision #3208

were closed to the public while the applicant was present within them..
The officers who apprehended the aliens of the Pai Sheng were, for the
most part, officers of the United States Park Police, Military Police,
and officers of the Immigration and Naturalization Service. Therefore,
the Service urges, the applicant and his fellow passengers from the Pai
Sheng should be regarded as having been under "constructive restraint" at all times after debarkation.
    In support of this argument, the Service submits that under Matter
of Pierre, supra, an alien has not entered the United States unless he is
free from both actual and constructive restraint. Id. at 469. Constructive restraint, the Service observes, may in appropriate circumstances
consist of mere surveillance. Id. Further, such restraint need not be
restraint by officers of the Service. Matter of Patel, supra, at 374
(quoting Correa v. Thornburgh, 

 (2d Cir. 1990));
Matter of Yam, 

 (BIA 1978). Finally, the Service
points out, there has been no entry as long as the alien remains in a
"restricted area" where "access and egress (are] controlled," and where
the alien lacks the freedom "to go at large and mix with the
population." Correa v. 

; see also Matter of
Patel, supra, at 371 72, 374; Matter of Pierre, supra, at 469.
                     -


   In the instant case, the Service argues that the applicant was at all
times under surveillance or in a restricted area or both, and so he was
at all times under constructive restraint and cannot have entered the
United States within the meaning of the Act.
   We are not persuaded by the Service's characterization of the facts
as showing circumstances of "constructive restraint." As noted above,
the record establishes that the applicant's fellow passengers, and
evidently the applicant as well, planned in advance to evade inunigration and customs authorities. Pursuant to these plans, they entered
onto dry land within the territorial boundaries of the United States at
an area not designated as a port of entry. The applicant, once
debarked, did not meet any customs or immigration officials waiting
to process his application for admission. Nor did he proceed directly
to the nearest inspection station. Instead, he proceeded freely into the
United States and fled for some distance into the interior, where he
remained for some time. He was under no official constraints or
surveillance. Indeed, although there were grounds for suspicion, and
although military police discovered a few aliens within a half hour
while investigating something else, no United States official knew with
any degree of certainty that a large number of aliens were even present
until about an hour after they had debarked.
   Moreover, the applicant here was free, at the time he debarked and
for anywhere from a half hour to 9 hours afterward, to leave the area of
Fort Point, the Presidio, and the National Recreation Area, and to
                                  713
Interim Decision #3208

mingle with the general population of San Francisco. Whether this
applicant actually did so is of no consequence. As we stated in Matter
of Patel, supra, "[Ole critical point in such cases is that freedom from
official restraint exists, not that such freedom has been exercised." Id.
at 9; see also, e.g., United States v. Martin Plascencia, 

                                            -



(9th Ch.), cert. denied, 

 (1976) (finding that an alien at a
port of entry effected an entry when he evaded inspectors and fled 50
yards into San Ysidro, California).
   In this case, the record establishes that the applicant could have
exercised such freedom to move beyond the boundaries of the federal
park and military base areas, and that nearly a quarter of his fellow
                  ,


passengers from the Pai Sheng actually did so. The Service's own
evidence establishes that more than a dozen former passengers of the
vessel were apprehended in various parts of the city of San Francisco,
after having moved beyond the boundaries of the federal areas
mentioned above. About 30 more apparently escaped apprehension
altogether and were still at large when the enforcement sweeps ended
on May 24, 1993.
   in view of the foregoing, we find that the argument that the
applicant's situation is analogous to that of an alien hiding in an
airport, or awaiting final processing there as in Matter of Patel, supra,
is entirely unpersuasive. The applicant here landed surreptitiously,
fled into the interior, and remained there until he was apprehended.
He did not arrive at a port of entry and attempt to hide before normal
processing, nor was he apprehended while awaiting final processing in
a customs enclosure. He instead avoided processing altogether and fled
into a National Recreation Area. The Service's analogy between these
two sets of circumstances does not hold.
  We find, in short, that the applicant here made an entry into the
United States when he debarked from his vessel at a place other than a
port of entry and fled into the interior undetected, with every apparent
intention of evading immigration inspection. The mere fact that he
entered an area which was under federal jurisdiction for reasons
unrelated to immigration processing does not render his movement
something less than an entry. Since we conclude that the applicant
entered the United States prior to his arrest, he can now be removed
from the United States only through properly instituted deportation
proceedings under section 242(b) of the Act, 

(b) (Supp.
IV 1992).
   In view of the foregoing, the decision of the immigration judge will
be upheld, the appeal by the Immigration and Naturalization Service
will be dismissed, and the exclusion proceedings will be terminated.
   ORDER:         The appeal by the Immigration and Naturalization
Service is dismissed.

                                  714