Interim Decision #2753 

MATTER OF NIAYESH 

In Exclusion Proceedings 

A-23097591 

Decided by Board January 16, 1980 

(I) The immigration judge did not abuse his discretion in finding the nonimmigrant 

student excludable under section 212(a)(20) of the Immigration and Nationality Act, 8 

U.S.C. 1182(a)(20), where the applicant attempted to enter the United States and 

return to full-time employment by presenting a student visa. 

(2) The District Director has exclusive jurisdiction to parole an alien into the United 

States pursuant to 8 C.F.R. 212.5(a). 

(3) An alien who is paroled into the United States is not subject to a deportation 

proceeding. 

(4) Pursuant to 8 C.F.R. 108.1, the American Consul has exclusive authority to review an 

asylum request made by an alien seeking entry a.t a land border port. 

EXCLUDABLE: 

Order. Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant—no valid 

immigrant visa 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Steven D. Karp, Esquire Harold J. Neubauer 

8034 Wilshire Blvd., #730 Trial Attorney 

Beverly Hills, California 90211 

BY: Milhollan, Chairman; Maniatis, Appleman,Ind Maguire, Board Members. Dissenting Opinion, Farb, Board Member 

In a decision dated August 29, 1979, the immigration judge found the 

applicant excludable under section 212(a)(20) of the Immigration and 

Nationality Act, 8 U.S.C. 1182(a)(20), as an immigrant who at the time 

of application for admission was not in possession of a valid unexpired 

immigrant visa. The applicant was ordered excluded and deported 

from the United States. The applicant has appealed. The appeal will be 

dismissed. 

The applicant is a 20-year-old native and citizen of Iran. He was 

admitted to the United States on March 2,4, 1978, as a nonimmigrant 

student to attend the University of Tennessee. On or about January 5, 

1979, the applicant moved from Tennessee to Los Angeles, California, 

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and accepted full-time employment as a machinist. He allegedly only 

moved and became employed because he was no longer able to receive 

money from Iran to attend college (Tr. p. 7). Further, he stated that the 

state colleges in California could not place him until the spring of 1980 

(Tr. p. 11). 

On August 12, 1979, the applicant and some friends visited Tijuana, 

Mexico. In attempting to return to the United States, the applicant was 

refused admission by an immigration officer in San Ysidro, California, 

for presenting a student visa when employed full time as a machinist. 

The immigration officer cancelled the applicant's student visa, finding 

that he was no longer a bona fide nonimmigrant student' The applicant testified that he was told to go back to the American Consulate in 

Mexico and obtain another visa (Tr. p. 16). Apparently, the Consul 

refused the applicant's request. An exclusion hearing was held on 

August 29, 1979, in San Ysidro, California. 

On appeal, the applicant, through his attorney of record, argues that 

1) the decision of the immigration judge, denying the applicant entry 

into the United States and finding him excludable and deportable, was 

arbitrary and capricious in that the applicant was admissible and 

entry should have been granted by the immigration judge in exercise 

of his administrative discretion; 2) should there have been a question 

as to the applicant's student visa, the applicant should have been 

paroled into the United States and set up for a deportation proceeding 

in that the applicant's departure was brief, innocent, and casual under 

Rosenberg v. Fleuti, 374 U.S. 449 (1963); 3) the applicant should have 

been paroled into the United States in order to apply for political 

asylum in that the applicant would be willing to demonstrate his 

unwillingness to return to Iran because of the current unsettled conditions there; and 4) the applicant should have been allowed to submit an 

application for political asylum at the exclusion proceeding as provided in the new amendments to the Code of Federal Regulations. 

An immigration judge's authority in exclusion proceedings in set 

forth as follows in 8 C.F.R. 236.1: 

In determining cases referred for further inquiry as provided in section 235 of the 

Act, immigration judges shall have the powers and authority conferred upon them by 

the Act and this chapter. Subject to any specific limitation prescribed by the Act and 

this chapter, immigration judges shall also exercise the discretion and authority 

conferred upon the Attorney General by the Act as is appropriate and necessary for 

the disposition of such cases. (Emphasis added.) 

A "nonimmigrant student" is defined by the Act as an alien having a 

' This statement was striken from the applicant's Notice of Visa Cancellation/Border 

Crossing Card, Form 1-276, for the purpose of the applicant's exclusion hearing. The 

applicant had requested the individual who prepared the form to appear at the hearing 

for cross-examination and he was unable to do so. 

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residence in a foreign country which he has no intention of abandoning, who is a bona fide student, and who is coming temporarily to 

the United States to study. Section 101(a)(15)(F) of the Act, 8 U.S.C. 

1101(a)(15)(F). 

Pursuant to 8 C.F.R. 3.1(b)(1), the Board may consider an appeal 

from an immigration judge in an exclusion proceeding. 

At the time the applicant applied for admission to return to the 

United. States, he was working full time in Los Angeles (Tr. p. 10). He 

testified at the exclusion proceeding that although he never intended to 

leave school, he did so in order to support himself as of January 1, 1979, 

when he failed to receive money from Iran (Tr. p. 17,18). He admitted 

that he never went to the Service to seek permission to work at any 

time ('Tr. p. 7). On August 12, 1979, he attempted to return to the 

United States to a full-time job by presenting a student visa. Inasmuch 

as the applicant was without a valid visa as required by section 

212(a)(20), the immigration officer cancelled the visa pursuant to the 

applicant's withdrawal of his application for admission.' 22 C.F.R. 

41.122(e)(3). We are convinced that the applicant was excludable under 

section 212(a)(20), and the immigration judge did not abuse his discretion in so finding. 

Insofar as the applicant's contention that the immigration judge 

failed to comply with Commissioner Castillo's memorandum of March 

1, 1979, instructing all field offices to give sympathetic consideration to 

all Iranian students, we find that the instruction does not preclude the 

immigration judge from disposing of an exclusion case in a manner 

which he feels is appropriate.' 

In response to the applicant's second argument, the District 

Director has exclusive jurisdiction to parole an alien into the United 

States pursuant to 8 C.F.R. 212.5(a). Both the immigration judge and 

the Board lack jurisdiction to exercise parole power. Matter of Lepofsky, 14 I&N Dec. 718 (BIA 1974); Matter of Coneeiro,14 I&N Dec. 278 

(BIA 1973), afd, Conceiro v. Marks, 360 F.Supp. 454 (S.D.N.Y. 1973). 

In the alternative, even if the applicant had been paroled, he would 

not necessarily have been "set up for a deportation hearing" or admissible under the "Fleuti doctrine", as the applicant would have us 

believe. An alien may be paroled into the United States temporarily 

pending a final determination of admissibility in accordance with 

The applicant, through his attorney of record, alleged at the exclusion hearing that 

the applicant withdrew his application for admission unintelligently and in response to 

coercion and duress exerted by the Service (Tr. p. 3). On appeal, however, the applicant 

hoe failed to raise the issue. Consequently, it would he inappropriate to discuss the 

propriety of such action on the part of the Service or its effect on the proceedings at this 

time. 

' In a -wire dated November 13, 1979, the memorandum was with drawn. 

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sections 235 and 236 of the Act, 8 U.S.C. 1225 and 1226. See generally, 8 

C.F.R. '212.5(a). Further, being "set up for a deportation proceeding" 

would not have guaranteed the applicant relief from deportation. 

The applicant, a nonimmigrant student returning from a two-hour 

visit in Mexico, was mot an alien lawfully admitted for permanent 

residence returning to an unrelinquished domicile, or a person whose 

deportation would have resulted in extreme hardship to himself, his 

spouse, or child who is a citizen of the "United States. See generally 

Roienberg v. Pleuti, supra; Wadman v. INS, 329 F.2d 812 (9 Cir. 1964). 

In response to the applicant's third and fourth arguments, 8 C.F.R. 

108.1 clearly provides that the American Consul has exclusive authority to review an asylum request made by an alien seeking entry at a 

land border port. Consequently, the immigration judge in an exclusion 

proceeding in San Ysidro, California, has no authority to review an 

applicant's asylum claim, whether or not the applicant is in possession 

of a visa. See generally 44 Fed. Reg. 21253 (1979). 

We are in complete agreement with the immigration judge's findings. Accordingly, the appeal will be dismissed. 

ORDER, The appeal is dismissed. 

DISSENTING OPINION: Ralph Farb, Board Member 

I dissent from so much of the Board's decision as holds that the 

applicant may not prosecute his application for political asylum in this 

exclusion proceeding. I agree that he is not adngissible as a returning 

nonimmigrant student following his two-hour departure to Mexico 

because he lost that status by dropping out of school and by taking 

unauthorized employment in the United States. Accordingly, it is 

correct to declare him excludable as an immigrant without an immigrant visa. 

8 C.F.R. 108.1 states, both before and after its amendment effective 

May 10, 1979, that an applicant for asylum who appears at a land 

border port is to be referred to the nearest American Consul. New in 

this version of the regulation, and in new section 236.3, promulgated at 

the same time, is a direction that aliens entitled to exclusion hearings 

under Part 236 who apply for admission at airports or seaports will 

have any concomitant asylum application considered by the immigration judge during the exclusion hearing process. New 8 C.F.R. 

236.3(a)(2) states an exception for the alien seeking admission to the 

United States at the land border. He is not to be processed by the 

immigration judge as to his asylum request; instead he is to he 

processed as prescribed by section 108.1; i.e., by referral to the nearest 

American Consul. 44 Fed. Reg. 21259; April 10, 1979 (effective May 10, 

1979). 

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It is ray opinion that the literal application of the rule regarding 

asylum requesters applying for admission at the land border was never 

intended for and should not be applied to a citizen of an Asian country 

who has gone from the United States to Mexico for 2 hours and has no 

privilege to sojourn longer in Mexico (especially after his difficulties 

with United States immigration authorities become known). This 

would not happen at the Canadian border. Under Section III, B, 2 of the 

Reciprocal Arrangement of 1949, as amended (INS Operations Instructions, Appendix to O.I. 243.1(c)(2)), the Canadian authorities would 

formally order the the alien excluded and deported to the United 

States, the United States Government would be obliged to let the alien 

come back under a parole order, and he then would have section 236 

exclusion proceedings as the forum where he could prosecute his 

asylum request 8 C.F.R. 108.1. It never can have been intended thus to 

discriminate against an alien who is not a citizen or resident of Mexico, 

who strayed momentarily across the United States border into Mexico, 

and who has no right to remain there while presenting an asylum 

application to the American Consul. 

The regulations have not been interpreted reasonably and correctly 

in accordance with fairness and their, to me, manifest purpose. I would 

remand this case to the immigration judge with a direction to entertain an asylum application. 

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