Interim Decision #2847 

MATTER OP CASTELLON 

In Exclusion Proceedings 

A-24436419 

Decided by Board February 2, 1981 

(1) The Board of Immigration Appeals does not have authority to review the manner in 

which the District Directors exercise parole power. 

(2) Applicants for admission in exclusion proceedings do not ordinarily enjoy the same 

constitutional rights that are available to aliens who have made an entry into the 

United States. 

(3) A Cuban "refugee" who had been Paroled into the United States was properly found 

excludable, upon revocation of parole by the District Director, on the ground that he 

lacked documents as an immigrant, despite the failure of the Immigration and 

Naturalization Service to establish the companion ground of excludability, commission of a crime of moral turpitude, which had led to the institution of the proceedings. 

(4) An application for asylum under section 208, made after the institution of exclusion 

or deportation proceedings, may also be considered as a request for withholding of 

deportation under section 243(h). 

(5) The application for asylum of a Cuban "refugee" was denied where the application 

was based only on the alien's unsupported claim that his imprisonment for theft was a 

politically motivated entrapment, particularly in view of his having been cited on six 

occasions for exemplary performance in a government office. 

EXCLUDABLE: 

Order: Act of 1952—Sec. 212(a)(9) [8 U.S.C.1182(a)(9)]—Convicted of a crime involving 

moral turpitude 

Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant not in possession of valid unexpired immigrant visa or other valid entry 

document 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE 

Donald M. Chinnfa, Esquire Jim Tom Haynes, Esquire 

Atlanta Legal Aid Society, Inc. Appellate Trial Attorney 

302 E. Howard Avenue 

Decatur, Georgia 30030 

BY: Milhollan, Chairman; Maniatis, and Maguire, Board Members. Dissenting Opinion: 

Irving A. Appleman, Board Member 

In a decision dated July 23, 1980, an immigration judge found the 

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

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Interim Decision #2847 

Nationality Act, 8 U.S.C. 1182(a)(20), dismissed an additional charge of 

excludability under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9), 

denied a request from the applicant for political asylum, and ordered 

his exclusion and deportation from the United States. The applicant 

has appealed. The appeal will be dismissed. 

The applicant is a 29-year-old native and citizen of Cuba who was 

part of the recent exodus from that country. He arrived on May 8, 1980. 

at Key West, Florida, and was paroled into the United States 

temporarily under the provisions of section 212(d)(5) of the Act, 8 

1182(d)(5). On May 16, 1980, employees of the Immigration and 

Naturalization Service interviewed the applicant in the Spanish language and then prepared an affidavit and a Request for Asylum (Form 

1-589) for him in English, which he then submitted to a Service District 

Director. These documents state that the applicant was convicted in 

Cuba in 1976, for the crime of embezzlement and sentenced to 12 years 

in prison. On the basis of this information, the District Director 

terminated the applicant's parole, detained him pursuant to section 

235(b) of the Act, S U.S.C. 1225(b), and on June 9, 1980, charged him 

with being excludable from the United States under section 212(a)(9) 

of the Act on the ground that he had been convicted of a crime 

involving mural turpitude, and under section 212(a)(20) on the ground 

that he was not in possession of a valid, unexpired immigrant visa or 

other valid entry document. 

On May 28, 1980, the District Director requested an opinion from the 

Department of State concerning the applicant's asylum claim. A 

Deputy Assistant Secretary for Human Rights and Humanitarian 

Affairs, at the Department of State, replied that he believed that the 

applicant had commited a serious nonpolitical crime prior to his 

arrival in the United States and that he was therefore not eligible for 

asylum. On June 26, 1980, the District Director denied the applicant's 

asylum request on the ground that he had been arrested and convicted 

in Cuba of a serious nonpolitical crime. . 

On July 23, 1980, the applicant appeared before the immigration 

judge, with counsel, at an exclusion hearing. The applicant admitted 

that he did not have a visa, but he denied that he was excludable under 

either of the alleged charges. The applicant also renewed his application for asylum. • 

The applicant alleged in support of his asylum request that his 

criminal conviction was the result of politically motivated entrapment. 

According to his testimony, the following events led to the conviction. 

In 197G, while he was working at the Ministry of Transportation in 

Cuba, a fellow employee at the Ministry asked him to join the Communist Party. He refused to join, and because of that refusal, efforts 

were made to remove him from his position. These efforts were un- 
Interim Decision #2847 

sucessful, however, because he had been cited on six occasions for being 

an exemplary employee and no firm basis could be found for firing him. 

Subsequently, the employee who had asked him to join the Communist 

Party convinced him that she was planning to escape from Cuba with 

several other employees. She persuaded him to join the group and to 

assist them in stealing money from the Ministry to finance their 

escape. Sometime later, she told him during a dinner break that the 

money had been taken and that it was in his office. When he returned to 

his office, he found the money in a box under his desk. Several minutes 

later, policemen entered the office and arrested him. A trial was held, 

he was found guilty of some form of theft, and then he was sentenced to 

12 years in prison. After serving 4 years of that sentence, he was 

released to emigrate to the United States. 

The applicant also testified that the Cuban government had discriminated. against him because he was Catholic. He had to work 

longer hours and could not attend religious ceremonies. He admitted, 

however, that most Cubans were Catholics and that apparently they 

were all persecuted by the Cuban government because of their religious beliefs. He testified further that he was accused in 1974 of 

holding anti-government meetings in his home, but that the charge 

was never substantiated. 

Thd immigration judge found that the excludability charge under 

section 212(a)(9) of the Act could not be sustained. He found further, 

however, that the applicant was excludable under section 212(a)(20) as 

an immigrant who did not have a valid, unexpired immigrant visa or 

other valid entry document. Finally, he denied the applicant's application for asylum on the ground that the applicant had not established a 

significant probability that he would be singled out for persecution by 

the Cuban government if he returned to that country. 

In his appeal brief and during an oral argument before this Board, 

the applicant has contended that it is manifestly unjust to order his 

exclusion under section 212(a)(20) of the Act. The Service paroled him 

into the United States knowing that he did not have entry documents, 

and the only reason for separating him from thousands of other Cuban 

refugees who were paroled in without entry documents, was the suspicion that he might be excludable under section 212(a)(9) of the Act. 

Since the immigration judge has found that he is not excludable under 

that section of the Act, there is no longer any reason to deny him the 

parole status that his undocumented countrymen are enjoying. 

In response to a request from this Board to clarify the Service's 

position on the applicant's argument, the appellate trial attorney, who 

appeared for the Service at the oral argument, submitted the following 

memorandum on October 29, 1980. A copy of this memorandum was 

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Interim Decision #2847 

sent to the applicant. 

At oral argument in the above-referenced matter on October 21, 1980, the Board 

requested the Service's views on a policy question which was presented. That question 

is whether the Service intends to seek exclusion under Section 212(a)(20) of the At of 

a Cuban national such as the applicant herein after a charge under Section 212(a)(9) 

has not been sustained by the Immigration Judge. 

It is the present Service policy to pursue an exclusion order under Section 212(a)(20) 

in such circumstances. A separate determination will be made in such cases as to 

whether release from custody is warranted. 

Before addressing the applicant's argument, we will briefly summarize the procedures that ordinarily are followed by the Service 

when an alien seeks to enter the United States. In addition to any 

physical or mental examinations which might be required, the alien is 

inspected by an immigration officer pursuant to section 235(a) of the 

Act. If the immigration officer concludes that the alien appears to be 

clearly and beyond a doubt entitled to enter the United States, he is 

admitted. Otherwise, he is detained for an exclusion hearing before an 

immigration judge pursuant to section 225(b) of the Act. If the immigration judge finds that the alien is excludable and orders him 

excluded and deported from the United States, the alien may appeal 

the immigration judge's decision to this Board. 

In this case, the applicant and his countrymen arrived at Key West, 

Florida without entry documents and were taken into custody by the 

Service. In view of their extraordinary circumstances, the inspection 

process of section 235(a) was deferred and they were paroled into the 

United States by the District Director under section 212(d)(5) of the 

Act. It is important to note in this regard that under the terms of that 

section such parole did not constitute an admission of these aliens into 

the United States. Moreover, the section provides further that when 

such parole status is terminated, the paroled aliens shall forthwith 

return or be returned to the custody from which they were paroled, and 

thereafter they will be dealt with in the same manner as that of any 

other applicants for admission to the United States. Consequently, 

when the District Director subsequently acquired information which 

led him to believe that the applicant was excludable under section 

212(a)(9), and revoked his parole status on the basis of that information, he was returned to the custody of the Service and placed in 

exclusion proceedings. 

Turning now to the applicant's argument, we note first that our 

authority in this matter is limited. Although we agree with the applicant that there does not appear to be a sufficient justification for 

keeping him in exclusion proceedings, while thousands of other undocumented Cubans are enjoying parole status, we cannot reinstate 

his parole status. The Attorney General delegated the exercise of the 
Interim Decision #2847 

parole power under section 212(d)(5) exclusively to the District 

Directors, and this Board does not have authority to review the manner in which they exercise that power. Matter of .1fiayesh„ Interim 

Decision 2753 (BIA 1980): Matter of Lepofsky, 14 IN Dec. 718 (BIA 

1974); Matter of Conceiro,14 I&N Dec. 278 (BIA 1973), ord, Conceiro v. 

Marks, 360 F.Supp. 454 (S.D.N.Y. 1973). Our role in these proceedings is 

limited to reviewing the immigration judge's finding of excludability 

and his rejection of the 'applicant's asylum request. Moreoever, the 

scope of our review is limited further by the fact that applicants for 

admission in exclusion proceedings do not ordinarily enjoy the same 

constitutional rights that are available to aliens who have made an 

entry into the United States. Matter of Cenatice, et al..,16 I&N Dec. 162 

(BIA 1977).' 

Section 212(a) of the Act provides in pertinent part that aliens in the 

following class shall be excluded from admission into the United 

States: 

(20) Except as otherwise specifically provided in this Act, any immigrant who at the 

time of application for admission is nut in possession of a valid unexpired visa,... or 

other valid entry document required by this Act, and a valid unexpired passport, or 

other suitable travel document... 

The term "immigrant" in that section refers to all aliens who have not 

established that they are entitled to a "nonimmigrant" classification.. 

See section 214(b) of the Act, 8 U.S.C. 1184(b). 

The applicant has not established or even claimed entitlement to a 

"nonimmigrant" classification. Consequently, he is an "immigrant.' 

Secondly, we are not aware of any law or regulation which exempts 

immigrants in the applicant's situation from compliance with the 

documentary requirements of section 212(a)(20). Accordingly, since he 

does not have the documents required by that section, we find that he is 

excludable from the United States. 

The applicant also contends that political asylum should be granted 

to him because he will be persecuted in Cuba on account of his religious 

and political beliefs, and he will be returned to prison to serve the 

balance of the 12-year sentence for the trumped up theft charge. 

An application for political asylum under section 208 of the Act, 8 

U.S.C. 1158, made after the institution of exclusion or deportation 

proceedings, shall also be considered as a request for withholding of 

deportation under section 243(h) of the Act, 8 U.S.C. 1253(h). 8 C.F.R. 

208.3(b) (effective June 1, 1980). While we recognize that there may be 

` Compare Paktorovics v. Murff, 260 F.2d 610 (2 Cir. 1958), in which it was held that an 

alien had a constitutional right to duo proecoo oven though ho had not boon admitted to 

the United States. That case, however, involved special circumstances that are not 

present in these proceedings. See Ahrens v. Rojas, 292 F.2d 406 (5 Cir. 1961); Sui Fung 

Lick v. Rosenberg, 271 F.Supp. 485 (C.D. Cal. 1967). 

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Interim Decision #2847 

differences between "asylum" and "withholding of deportation" in 

another context, we will refer to both forms of relief by the term 

"asylum" in this case. An applicant for such relief must establish that, 

if deported, he would be subject to persecution based on his race, 

religion, nationality, membership in a particulai social group, or political opinion. Matter of McMullen, Interim Decision 2831 (BIA 1980). 

Accordingly, we will address the merits of the applicant's asylum 

request. The only significant allegation in the applicant's asylum claim 

is that his imprisonment was the result of politically motivated entrapment, and he has not supported that allegation with any evidence 

other than his own account of the events which led up to the imprisonment. Furthermore, we find it incredible that the Cuban government 

would orchestrate such a scheme because of the applicant's refusal to 

join the Communist Party or on account of unsubstantiated accusations that covert political meetings had been held at his home, especially in view of the fact that the applicant had been cited on six 

occasions for exemplary performance as an employee at a government 

office. We find, therefore, that he has not met his burden of establishing eligibility for asylum. 

We conclude that the decision of the immigration judge was correct. 

Accordingly, we will dismiss the applicant's appeal. 

ORDER: The appeal is dismissed. 

DISSENTING OPINION Irving A. Appleman, Board Member 

I respectfully dissent. 

The applicant arrived May 8, 1980, as part of the Cuban boat-lift. He 

was paroled, and was placed under exclusion proceedings on June 9, 

1980, charged with inadmissibility under section 212(a)(9) for commission of a crime, and section 212(a)(20) for lack of a valid visa. The 

majority decision sustains the immigration judge's decision rejecting 

the first, but finds him inadmissible on the second. Simultaneously, it 

denies his application for asylum under the Refugee Act of 1980, P.L. 

96-212, 94 Stat. 102, because of a failure to establish that he would be 

persecuted on return to Cuba. 

According to an Immigration and Naturalization Service press 

release of June 26, 1980, Cubans who arrived in the United States 

between April 21, 1980, and June 19, 1980, and were in Immigration and 

Naturalization Service proceedings as of the latter date, were to be 

granted extensions of parole to January 15, 1981. This was "in compliance with Presi dent Carter's previously announced policy to give Congress time in which to consider special legislation that would regularize the status of Cubans and Haitians known to be in the United 
Interim Decision #2847 

States prior to June 19.1" 

The policy referred to was set forth in a published statement of 

Victor H. Palmieri, U.S. Coordinator for Refugee Affairs on June 20, 

1980. This legislation [The Refugee Act of 1980] did not contemplate the kind of situation we face now, with a sudden massive influx, 

without overseas processing and valid documentation. . In order to 

redress this extraordinary situation yet maintain the integrity of our 

refugee laws for those applying for admission in the prescribed manner, the President has decided to seek special legislation regularizing 

the status of Cuban-Haitian entrants...." . 

The administration bill, S. 3013, was introduced on August 5, 1980. It 

created a special Caban/Haitian Entrant status for these Cubans who 

arrived after April 20 and before -June 20, 1980, and provided for 

adjustment of statues after 2 years. These admissions would not count 

against the numerical limitations of the Immigration and Nationality 

Act. In submitting the bill to the Congress, a spokesman for the 

Attorney General stated, "This special, one time only, legislation is 

necessary to meet problems nut contemplated by the Refugee Act of 

1980. The refugee provisions of the Act do not provide for the sudden 

and massive arrival of persons to the United States who did not 

undergo overseas processing_ . _ Additionally, many rif the Cubans and 

Haitians would not qualify under the strict standards for asylum." 

(Emphasis supplied.) See Congressional Record—Senate, August 5, 

1980, S. 10825 at S. 10827.2 

From the outset, these Cubans have been regarded as outside the 

asylum provisions of the Refugee Act of 1980. However, where there 

was reason to believe the alien was inadmissible for commission of a 

crime, the Service has instituted exclusion proceedings and has accepted and processed asylum applidations. Other Cubans who arrived 

during the specified period are not being placed in exclusion proceedings, nor are their asylum applications being processed. See oral argu- 

' See press release, quoted in American Council for Nationalities Service, Interpreter 

Releases, Vol. 57, No. 25, pp. 305-6, June 30, 1980. The implementing Immigration and 

Naturalization Service inctructions appear in a telegraphic message to field offices dated 

July 3, 1980, under file no. CO 242.1-P. The same treatment has now been authorized for 

Cubans who arrived between June 20,1980, and October 10, 1980, and who were in Service 

proceedings as of October 10,1980. Interpreter Releases, Vol. 57, No. 41, October 23, 1980. 

Immigration and Naturalization Service proceedings is interpreted as meaning any 

Cuban or Haitian who has appeared before an immigration officer and has been documented in some fashion." Service telegram of July 3, 1980, supra. 

"The Refugee Act did not intend to address a situation of this type or magnitude." 

Key Issues lecture by Peter W. Bodine, Jr., Chairman, Committee of the Judiciary, 

United States House of Representatives, November 12, 1980, reprinted in American 

Council for Nationalities Service Interpreter Releases, November 19, 1980, Vol. 57, No. 44, 

p. 535, at 542. 

622 
Interim Decision #2847 

ment p. 9. 

There is justification for treating a Cuban who may be excludable 

because of a criminal conviction, as excepted from the general policy 

and procedure. Only a relative few of the boat-lift Cubans have committed "serious nonpolitical crimes." If they are conceivably a danger 

to the community, or if, according to their past histories, there is 

reason to believe they are ineligible for, or unworthy of, gaining a 

foothold in this country, then they should be subject to the strictures of 

the Immigration and Nationality Act, just as much as, e.g., an alien 

who seeks to enter with subversive intent, 8 U.S.C. 1182(a)(29). The 

institution of exclusion proceedings against this special group is not 

unreasonable and we have had no hesitation in accepting jurisdiction 

over appeals from adverse rulings below. 

The appeals have presented dual aspects of excludability and 

"refugee" status. In passing on the appeals, we have regarded each 

asylum application under the Refugee Act, as embracing an application for a stay of deportation to Cuba under section 243(h) of the 

Immigration and Nationality Act, 8 U.S.C. 1253(h). Once excludability 

under 8 U.S.C.. 1182(a)(9) was established, we have passed on the 

section 243(h) application. However, we have declined, sub silentio, to 

rule on eligibility for asylum under the Refugee Act, since that question was awaiting legislative resolution at the request of the administration. In considering section 243(h) relief, we applied the requirements for that relief as now amended by the Refugee Act of 1980, 

including the bar for those who have committed a "serious nonpolitical 

crime." The persecution issue was reached as a part of the analysis of 

the possible political nature of the crime. See Matter of RodriguezPalma, Interim Decision 2815 (BIA 1980). 

It could be argued that consideration of the section 243(h) application should also have been deferred. We chose not to, because of our 

long-standing and established jurisdiction over this relief as a part of 

the Immigration and Nationality Act,3and the fact that, as a stay of 

deportation to a designated country, it was an inherent part of the 

appeal before us, distinguishable from a grant or denial of permanent 

residence to an asylee. "Asylum" applications for the "boat-lift" 

Cubans may or may not be under our jurisdiction when the matter is 

finally resolved by the Congress, and implemented by regulation. The 

requirements for "asylum" for the group, in whatever form that relief 

takes, are not even known to us at this writing. Hence, while the terms 

"asylum" and "refugee" have frequently been used interchangeably, 

3Although jurisdiction over the application in exclusion proceedings was extended to 

immigration judges and the Board only on May 10, 1979 (8 C.F.R. 2382), it has long been 

a part of deportation proceedings (S C.F.R. 242.17(e)). 
Interim Decision /12847 

and the Service itself uses one application form to cover both (see 8 

C.F.R. 108.1), up to now, this Board has not ruled upon Cuban asylum 

applications under the Refugee Act of 1980, although we have passed 

upon the same application insofar as it could be deemed a request for a 

stay of deportation under section 243(h) of the Act. 4 

This selectivity has now been abandoned. The majority has considered the asylum application on the merits under the Refugee Act. Of 

course the applicant cannot qualify. Very few of these Cubans can. 

Their ineligibility has been acknowledged publicly, yet their removal 

has not been sought. Rather, their paroles have been extended while 

legislation is pressed to take care of them, despite the lack of a visa and 

the inapplicability of the Refugee Act. 

The sole apparent reason the applicant was singled out for the 

initiation of exclusion proceedings, was because of a possible criminal 

basis for excludability under 8 U.S.C. 1182(a)(9). For the reasons noted, 

this was acceptable. The criminal ground of excludability has fallen by 

the wayside. Nevertheless, the Service insists that the case continue to 

be prosecuted and that the appeal be decided in all aspects, and the 

majority has acquiesced. This raises an issue whether the full sanction 

of the law should be applied, at this time, when the applicant has not 

been shown to be within any special category, but is excludable solely 

for grounds applicable to all of the other thousands of Cubans who 

came here when he did. 

The other "boatlift" Cubans are in a limbo where they are not 

subjected to exclusion proceedings, where no order of exclusion and 

deportation has been entered against them, where their asylum applications are neither denied nor approved, but are either not accepted, 

or, if accepted, are not processed. None of them have immigration 

documents and they are equally inadmissible for lack of them. It is 

doubtful if more than a handful could qualify technically under the 

Refugee Act. On the record before us, the applicant is now in like 

position, yet the majority has affirmed his inadmissibility for lack of a 

valid visa, has denied his asylum claim for lack of proof, and has 

ordered his exclusion and deportation. 

In my view, it is both absurd and improper for the Service to press 

forward with this case now that the exclusion charge based on a crime 

is no longer applicable. This Board acts as the surrogate of the Attorney General in those matters within our jurisdiction. This is obviously a policy area, but it is not one in which policy is unclear. I see no 

4Matter of Rnririguez-Polma., supra. For discussion of possible differences between a 

stay of deportation under section 243(h) and asylum, see Matter of McMullen, Interim 

Decision 2831 (BIA 1980). Cf. Matter of Duwar, 14 I&N Dec. 310 (BIA 1973), for comparison prior to Refugee Act. 

624 
Interim Decision #2847 

room for interpretation by us of the applicability of the statute to this 

applicant at this time. By ruling as it has, the Board has defeated the 

expressed desire of the executive branch of the Government, and 

anticipated adversely the as yet unexpressed will of the Congress. This 

I am unwilling to do. 

True, there is no immediate threat of removal from the United 

States. The Service is not presently deporting aliens to Cuba, so far as 

known. Nevertheless, many possibilities exist. The visa requirement 

which is the basis of the no-visa charge under 8 U.S.C. 1182(a)(20) may 

be waived legislatively as to this special group.' They may be relieved 

entirely of the asylum requirements of the Refugee Act, or be 

statutorily defined as "refugees," either within or outside of existing 

legislation, and regardless of proof of individual persecution. Admittedly, if, as, and when something of this sort takes place for other 

Cubans in like position, this applicant, if still here, may move to reopen 

these proceedings. On the other hand, he may not still be here, given 

the outstanding order, the variable status of relations with Cuba 

(under which Cuba might conceivably accept him back at some future 

date), the possibility that some other country may accept him, and the 

already demonstrated enthusiasm of the Service for continuing to 

move against 1tim despite the failure of the criminal charge. Ryan 

more importantly, the Board here sets a precedent under which the 

Service is free to impose the full sanction of the Immigration and 

Nationality Act on. any of the boat-lift Cubans, whetherin an excepqd 

group or not. 

I see no need to take these risks. No harm would be done in placing 

the applicant back with the others in like status, to be treated however 

they are ultimately treated, and under the same standards. I would 

therefore remand this case to the Service, without passing at this time 

on either inadmissibility under section 212(a)(20), 8 U.S.C. 1182(a)(20), 

or on his asylum application, leaving, it to the Service to take appropriate action as to parole. 

S. 8013, made paragraphs (14), (15), (20), (21), (25), and (32) of section 212(a) of the 

Immigration and Nationality Act inapplicable, and permitted the Attorney General to 

waive any other provision of section 212(a) except (27), (29), (33), and that part of (23) 

relating to traffic in narcotics. Congressional Record—Senate, S. 10825, August 5, 1980. 

The bill was still pending when. Congress adjourned and will undoubtedly be 

reintroduced.