Y-G

Interim Decision #3219




                              MA I I Kit OF Y-G-

                            In Exclusion Proceedings
                                     A-29380926

                       Decided by Board May 5, 1994

(1) In Matter of Shirdel, 

 (BIA 1984), the Board of Immigration
  Appeals stated that the factual basis for a possible finding of excludability under the
  first clause of section 212(a)(19) of the Immigration and Nationality Act, 

(a)(19) (1982), relating to fraud or misrepresentation in the procurement of
  documents, will be closely scrutinized since such a finding may perpetually bar an
  alien from admission.
(2) Following its amendment by section       6(a) of the Immigration Marriage Fraud
  Amendments of 1986, 

 Stat. 3537, 3543-44 (effective Nov. 10,
   1986), and later by section 601(a) of the Immigration Act of 1990, Pub. L. No. 101-
  649, 

, 5073-74 (effective Nov. 29, 1990), the exclusion provision
  currently at section 212(a)(6)(0(i) of the Act, 8 U.S.C. 6 1182(a)(6)(C)0) (Suno. IV
   1992), relating to fraud or misrepresentation in seeking entry into the United States,
  like the provision relating to fraud or misrepresentation in the procurement of
  documents, is now both prospective and retrospective; therefore, the factual basis for
  a possible finding of excludability under this provision will be closely scrutinized,
  since such a finding may perpetually bar an alien from admission.
(3) Applicant for admission to the United States is not excludable under section
  212(a)(6)(C)(i) of the Act as an alien who seeks or has sought to procure entry into the
  United States by fraud or the willful misrepresentation of a material fact where there
  is inadequate evidence that applicant presented or intended to present fraudulent
  documents to a United States Government official in an attempt to enter on those
  documents.
EXCLUDABLE; Act of 1952 — Sec. 212(a)(19)                     § 1182(a)(19)] —Fraud or
                                  willful misrepresentation of a material fact
                               Sec. 212(a)(20) [

(a)(20)I—No valid
                                 immigrant visa
ON BEHALF OF APPLICANT:                               ON BEHALF OF SERVICE:
  Candace L. Jean, Esquire                             Elena R. Stinson
  3050 Biscayne Boulevard, Suite 301                    General Attorney
  Miami, Florida 33137

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members


  In a decision dated March 13, 1991, an immigration judge found
the applicant excludable under sections 212(a)(19) and (20) of the

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Immigration and Nationality Act, 

(a)(19) and (20)
(1988),' and denied his applications for asylum and withholding of
exclusion and deportation. The applicant appealed. The appeal will be
sustained in part and dismissed in part. The applicant's request for
oral argument before the Board is denied. See 

(e) (1993).
   The applicant is a 26-year-old native and citizen of Haiti. He
arrived in the United States on December 3, 1990, aboard a flight
from Haiti. He boarded the flight by using a fraudulent, photoswitched passport. At a hearing on January 17, 1991, the applicant
answered in the affirmative when asked by the immigration judge
whether he presented a Haitian passport and temporary resident card
under the name of Bython Lacoste upon his arrival in the United
States on December 3, 1990. He further stated that Bython Lacoste is
not his true name and that he does not have a visa under his true name
to allow him to enter the United States legally. At his March 13, 1991,
hearing on the merits of his asylum application, the applicant
volunteered, "Well, I have to tell you that when I came here in the
States, the first thing I did was not lying. I gave my real name, and I
claimed that the documents that I have they were not good, and I gave
the address, my family would help me here."
   In his decision of March 13, 1991, the immigration judge stated that
the applicant conceded his excludability under sections 212(a)(19) and
(20) of the Act, and the immigration judge found him inadmissible
under these provisions. The applicant does not contest his excludability under section 212(a)(20) of the Act, and a full review of the record
indicates that the immigration judge properly found him excludable
under this section. However, there is no support in the record for the
immigration judge's finding that the applicant "conceded" excludability under section 212(a)(19) of the Act, and the applicant disputes his
inadmissibility under this section on appeal.
   An application for admission to the United States is continuous,
and admissibility is determined at the time the application is finally
considered. Matter of Kazetni, 

 (BIA 1984); see also
Matter of Ching and Chen, 

 (BIA 1984). Therefore,
we will utilize the current laws and regulations in evaluating the
applicant's alleged excludability for fraud or misrepresentation. 2

    These sections were revised and redesignated as sections 212(a)(6)(C)(i) and
(7)(A)(i)(1) of the Act, 8 U.S.C. §§ I 182(a)(6)(C)(i) and (7)(A)(i)(I) (Supp. IV 1992), by
section 601(a) of the Immigration Act of 1990, 

 Stat. 4978,
5073-74 (effective Nov. 29, 1990) ("1990 Act"). The amended grounds are applicable to
individuals seeking entry into the United States on or after June 1, 1991. See sectinn
601(e) of the Immigration Act of 1990, 104 Stat. at 5077.
  2 We note that the revision made to this exclusion ground by the 1990 Act was



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Interim Decision #3219

  Section 212(a)(6)(C)(i) of the Act, 

(a)(6)(C)(i)
(Supp. IV 1992), provides as follows:
   Any 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 is excludable.
   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)(6)(C)(i) of the Act to be found. See Matter of D-L- & A-M-, 

 (BIA 1991); Matter of Shirdel, 

 (BIA
1984); Matter of L-L•, 

 (BIA 1961). The record
contains no evidence that the applicant practiced fraud or made a
willful misrepresentation to a United States Government official in
procuring or in seeking to procure documentation. Accordingly, we
find that the issue at hand is whether the applicant is excludable for
fraud or willful misrepresentation of a material fact in seeking to
procure entry into the United States.
   Prior to its amendment by section 6(a) of the Immigration Marriage
Fraud Amendments of 1986, 

 Stat. 3537,
3543-44 (effective Nov. 10, 1986) ("1986 Amendments"), and later by
the Immigration Act of 1990, 

 Stat. 4978
("1990 Act"), section 212(a)(19) of the Act rendered excludable
   [ajny 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.
   Interpreting that version of the law, the Attorney General held that
the first clause of section 212(a)(19), relating to documents, was both
prospective and retrospective, but the second clause, relating to entry
into the United States, was prospective only - Matter of M , 6 I&N Dec.  -


752 (BIA 1955); Matter of M-, 

 (BIA, A.G. 1954); see
also Matter of Shirdel, supra, at 34-35. Consequently, an alien whose
fraud or material misrepresentations related to the procurement of
documents was forever barred from admission, unless a waiver was
obtained, while a fraud or misrepresentation which related to an
alien's entry invalidated only that entry and did not preclude a
subsequent entry that was otherwise regular. See Matter of Shirdel,
supra. Accordingly, in Matter of Shirdel this Board stated, "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

cosmetic in nature and that the result in this case is the same under both versions of the
law.

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entry documents since such a finding perpetually bars an alien from
admission." Id. at 35; see also Matter of ealy and Goodchild, 

 (BIA 1979).
   Since the fraud exclusion ground has been amended, an alien is now
excludable under section 212(a)(6)(C)(i) of the Act not only if he
"seeks" to procure but also if he "has sought to procure or has
procured" an entry into the United States by fraud or the willful
misrepresentation of a material fact. Accordingly, the provision
relating to seeking entry, like the provision relating to the procurement
of documents, is now both prospective and retrospective, and an alien
who is found excludable for seeking to procure entry by fraud or the
willful misrepresentation of a material fact is now forever barred from
admission to the United States unless a waiver is obtained. Therefore,
we will "closely scrutinize" the factual basis for a possible finding of
excludability under this provision, since such a finding may perpetually bar the applicant from admission. See Matter of Shirdel, supra.
   The burden in exclusion proceedings is upon the applicant to
establish that he is not inadmissible under any provision of the Act.
See section 291 of the Act, 

 (1988); Matter of D-L-
A-M-, supra. In the instant case, we conclude that the applicant has
met his burden and that a Finding of excludability under section
212(a)(6)(C)(i) of the Act cannot be sustained.
   In Matter of D-L- & A-M-, supra, we held that outside of the transit
without visa context, an alien is not excludable 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. The record in the case before us contains a
Form 1-110 signed by an immigration inspector, which states that the
applicant applied for admission as a temporary resident and that he
made an admission against interest "by stating his true name is Yvon
Guillaume and that the documents he presented as his own were in
fact obtained illegally and made to fit his likeness in an effort to
defraud the U.S. government." The immigration inspector did not
testify at the applicant's exclusion proceedings. The applicant conceded that he possessed a Haitian passport and a temporary resident card
bearing the name of Bython Lacoste. However, the applicant testified
that when he came to the United States, he did not lie, but instead gave
his real name, stated that the documents he possessed were not his
own, and gave the address of family members who would help him.
Having closely scrutinized the factual basis for excludability under
section 212(a)(6)(C)(i) of the Act, we find that the evidence does not
establish the applicant's excludability under section 212(a)(6)(C)(i) of
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Interim Decision #3219

the Act as an alien who seeks or has sought to procure entry into the
United States by fraud or the willful misrepresentation of a material
fact. See Matter of Shirdel, supra.
   The applicant also asserts on appeal that he was effectively denied
his right to counsel in the exclusion proceedings, not having validly
waived it, and was therefore denied a fair exclusion hearing. We
disagree. The applicant was first informed that he had a right to be
represented by counsel on December 3, 1990, when he was served with
a Notice to Applicant for Admission Detained for Hearing before
Immigration
        ration Judge (Form 1-122). At a hearing before an immigration
judge on January 3, 1991, the applicant was informed that he was
entitled to be represented by an attorney of his choice at no expense to
the government, and the applicant acknowledged that he had received
a list of lawyers who might be able to represent him for free. The
applicant was granted a 2-week continuance to allow him to obtain
counsel. The applicant appeared on January 17, 1991,         without
counsel, but he was accompanied by a clergyman. The proceedings
were continued to allow the applicant to file an asylum application,
and at a March 5, 1991, hearing, the applicant was granted a
continuance so that his family members could attend his hearing. The
applicant's exclusion hearing was held on March 13, 199 1, more than 3
months after he had been placed in exclusion proceedings.
   A waiver of the right to counsel need not always be express, but may
be inferred from the acts of the applicant. See Cobourne v. INS, 

 (11th Cir. 1986). In the instant case, after having been
informed of his right to counsel and given a list of attorneys who
represent aliens at little or no cost, the applicant appeared before the
immigration judge on three occasions without counsel. Although he
requested, and was granted, a continuance so that his family members
could attend his asylum hearing, he did not request another continuance to obtain counsel. We find that the applicant validly waived his
right to counsel.
   Additionally, we fmd that the applicant has not established that he
has been prejudiced by the lack of counsel. See Matter of Santos, 

 (BIA 1984). The applicant alleges that counsel would
have presented arguments to contest his excludability under section
212(a)(6)(C)(i) of the Act and would have been of great assistance in
preparing and presenting his asylum claim. However, we have found
that the applicant's excludability under section 212(a)(6)(C)(i) of the
Act has not been established. Moreover, the applicant has made no
arguments and presented no evidence on appeal to establish a valid
claim to asylum or withholding of exclusion and deportation.
   The applicant claims that he would have presented evidence that
returnees are subject to persecution in Haiti, and he has submitted
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several newspaper articles in support of this argument. These articles
indicate that on three occasions in May and June of 1990, charter
planeloads of deported aliens were held by police for questioning. The
articles state that in May 1990, approximately 43 returning Haitians
were held in the National Penitentiary for up to 10 days and that in
June 1990, 31 returning Haitians were detained for 1 day upon their
return. The articles further indicate that 15 of the Haitians detained in
May had been incarcerated in the United States for crimes committed
in this country, that deported Haitians are not traditionally locked up
upon arrival in their homeland, and that Haitian officials attributed
these actions to their need to investigate and dismantle a network set
up by those trafficking in false travel documents, although several
"boat people" had also been detained. See Matter of Acosta, 

 (BIA 1985), modified on other grounds, Matter of Mogharrabi, 

 (BIA 1987) (holding that prosecution for violation
of laws of general applicability is not persecution unless punishment is
imposed for invidious reasons). We find that this evidence fails to
establish that the applicant has a well-founded fear of persecution if he
is returned to Haiti based on his membership in a particular social
group, i.e., Haitians deported from the United States. See sections
101(a)(42)(A) and 208(a) of the Act, 

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

 (1987); Matter
of Mogharrabi, supra; 

(b)(2) (1993). Furthermore, we
note that the applicant submitted these articles in August 1991, and he
has provided no evidence that Haitian officials have continued to
detain returnees after June 1990.
   We also find that the testimony and evidence presented by the
applicant before the immigration judge do not establish past persecution or a well-founded fear of future persecution if he is returned to
Haiti. See sections 101(a)(42)(A) and 208(a) of the Act; INS v.

 Accordingly, the applicant also has failed to
satisfy the clear probability standard of eligibility required for
withholding of exclusion and deportation. See section 243(h) of the
Act, 

(h) (Supp. IV 1992); INS v. Stevie, 

(1984). The applicant reported that he fears returning to Haiti because,
between 1986 and 1988, he and a soldier had several altercations
which stemmed from their relationship with a girl. The applicant
conceded that he never had problems with anyone else in Haiti and
that he had no problems with the soldier in 1989 or 1990.
   Aliens fearing retribution over purely personal matters will not be
granted asylum on that basis. Matter of Pierre, 

 (BIA
1975). Such pascals may have well-founded fears of harm, but such
harm would not be on account of race, religion, nationality, membership in a particular social group, or political opinion. Id.; see also 8

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Interim Decision #

(b)(2) (1993). In the instant case, the applicant has not
shown that the soldier may wish to persecute him on account of any of
the five factors enumerated in section 101(a)(42)(A) of the Act.
   ORDER:         The appeal is sustained and the decision of the
immigration judge is reversed insofar as it finds the applicant
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 finds the
applicant excludable under section 212(a)(20) of the Act and denies
the applicant's applications for asylum and withholding of exclusion
and deportation.




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