Interim DeCision #2913 

MATTER OF PHELISNA 

In Exclusion Proceedings 

A-26006147 

Decided by Board July 8, 1982 

(1) An applicant in exclusion proceedings generally has the burden establishing that the 

exclusion proceedings are improper. 

(2) In order to prove that exclusion proceedings are improper, the applicant must establish 

that she made an entry into the United States. 

(3) Where an alien alleges that an "entry" without inspection has been made, the alien 

must establish that she actually and intentionally evaded inspection. 

(4) The fact that an alien knowingly comes to the United States without the requisite 

immigration documents does not, by itself, mean that the alien is attempting to evade 

inspection. 

Rxet.111"/ARIS:' At of 19c9—Cae 212(0(20) (8 U.S.C. 11132(3)(20)) No valid vim, 

ON BEHALF OF RESPONDENT: ON BEHALF OFSERVICE: 

S. Bernard Schwarz, Esquire Michael P. DiRaimondo 

299 Broadway, Suite 1010 General Attorney 

New York, New York 10007 

BY: Miihollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

In a decision dated December 1, 1981, 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), denied her application for asylum 

and withholding of deportation, and ordered that she be excluded and 

deported from the United States. The applicant has appealed. The appeal 

will be dismissed. 

The applicant is a 24-year-old female alien, a native and citizen of 

Haiti. She arrived in the United States at Miami, Florida, on July 5, 

1981, and was placed in exclusion proceedings. 

At her hearing, the applicant asserted that exclusion proceedings 

were improper. She stated that she knew a visa was required for entry, 

but that she had no document which would entitle her to be admitted to 

the United States. The applicant testified that she had traveled from 

Haiti to the United States on a boat which had transported approximately ZOO people. She further testified that the passengers (including 

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Interim Decision #2913' 

herself) had been apprehended when it was light, after they had disembarked from the boat and were on the beach, that she was not too far 

from the boat when apprehended, and that she did not know where she 

was. The immigration judge found that the applicant was properly in 

exclusion proceedings because she had not presented any evidence which 

would suggest that she had "entered" the United States. 

The applicant then submitted her application for asylum (Form 1-580) 

and the accompanying addendum which were received into evidence. In 

the addendum, the applicant states that she had been inspected. She 

clarified this response by stating "[w]hen we came to the beach in Miami, 

Florida, we met other Haitians who said that we should see the immigration officials. They called for us and we were taken to a camp where we 

stayed for a month." 

On appeal, the applicant reiterates her contention that she has made 

an entry into the United States and should be placed in deportation 

proceedings. She alleges that she was physically present in this country; 

that she had actually, constructively, or intentionally evaded inspection; 

and that she had been free from actual or constructive restraint. 

The Service contends that exclusion .proceedings are proper because 

the applicant has not effected an entry into the United States. Although 

it concedes that the applicant was physically present in the United 

States at the time of her arrest, the Service argues that the applicant 

has not shown that she actually and intentionally evaded inspection or 

that she had been free from restraint. 

An applicant in exclusion proceedings has the burden of establishing 

that the exclusion proceedings are improper. See section 291 of the Act; 

Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981). But cf. Matter 

ofSalazar, 17 I&N Dee. 167 (BIA 1979) (colorable claim to lawful permanent resident status). In order to proye that she is not subject to 

exclusion, the applicant must establish that she has made an entry into 

the United States. As defined in section 101(a)(13) of the Act, "Mlle 

term "entry" means any coming of an alien into the United Stites, from 

a foreign port or place or from an outlying possession. . . ." An "entry" 

involves (1) a crossing into the territorial limits of the United States, 

i.e., physical presence; plus (2) an inspection and admission by an inunigration officer, United States v. Vasilatos, 209 F.2d 195 (3 Cir. 1954); 

Lazarescu. v. United States, 199 F.2d 898 (4 Cir. 1952); or (3) actual and 

intentional evasion of inspection at the nearest inspection point, Meng 

v. INS, 534 F.2d 1018 (2 Cir. 1976); U.S. ex rel. Giacone v. Corsi, 64 

F.2d 18 (2 Cir. 1933); Morini v. United states, 21 F.2d 1004 (9 Cir. 

1927), cert. denied, 276 U.S. 623 (1928); Lew Moy v. United States, 237 

F. 50 (8 Cir. 1916); Matter of Estrada-Betancourt, 12 &N Dec. 191 

(BIA 1907); coupled with (4) freedom from restraint, United States v. 

Vasilatos, supra; Lazarescu v. United States, supra. See Matter of Lin, 

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18 I&N Dec. 219 (BIA 1982); Matter of Pierre, 14 I&N Dec. 467 (BIA 

1973). 

Because it is clear that the applicant had established physical presence in the United States, the issue in this proceeding is whether she 

actually and intentionally evaded inspection and, if so, whether she had 

been free from restraint. 

The applicant, submits that in Mutter of Yarn, 16 I&N Dec. 535 (BIA 

1978), the third element of an "entry" was discussed in the alternative, 

i.e., in terms of actual or intentional evasion of inspection. Consequently, 

she argues that intent need not be shown. We do not agree. Matter of 

Yarn, supra, did not specifically address this issue. Further, if we apply 

the applicant's rationale, the third element of an entry, actual evasion of 

inspection, is equivalent with the first element, physical presence. Such 

a construction is redundant. In addition, it is contrary to case law which 

requires ari alien intentionally to evade inspection. See Cheng v. MIS, 

supra; U.S. ex rel. Giacone v. Corsi, supra; Morini v. United States, 

supra; Lew Moy v. United States, supra. 

The applicant has failed to prove that she actually and intentionally 

evaded inspection.' Thg applicant submits that she actually and intentionally evaded inspection because she knowingly attempted to enter 

the United States without the required documents. We do not find this 

argument persuasive. The fact that an alien knowingly comes to the 

United States without the requisite immigration documentd does not 

necessarily mean that the alien is attempting to evade inspection, as the 

alien lawfully could be seeking asylum. The applicant in this proceeding 

has not established that she intentionally was endeavoring to violate the 

immigration laws of the United States by entering without inspection. 

In fact, our review of the record clearly would indicate otherwise, i.e., 

that she was looking for immigration officials to test her status. The 

applicant's own statement in the addendum to hex asylum application 

reflects that she voluntarily presented herself for inspection and, 

therefore, that she had not been attempting to evade inspection but had 

come to this country with the lawful intention of seeking asylum.' On 

appeal, the applicant raises the argument that she intended to evade 

inspection because she intended to meet a relative. The applicant's mere 

1 In view of our finding, we need not determine whether the applicant had been free 

from restraint. 

2 The immigration judge apparently did not believe the applicant's assertions regarding 

her intent. Based upon the record before us, we are not persuaded that the immigration 

judge's conclusion was incorrect. See generally Wing Ding Chan v. INS, 631 F.2d 978 

(D.C. Cir. 1980), cent denied, 450 U.S. 921(1981); Vasquez-Mondragon v. INS, 560 F.2d 

1225 (5 Or. 1977); Kokkinis v. District Director. 429 F.2d 938 (2 Cir. 1970); Maitr of 

Magana, 17 I&N Dec. 111 (BIN 1979); Matter of Teng, 15 I&N Dec. 516 (BIA 1 75); 

Matter of 7 I&N Dec. 417 (BIA 1957). 

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desire to meet a relatiye in the United States does not, without more, 

evince an intention to evade inspection. • 

Inasmuch as the applicant had neither "entered" the United States 

nor had any document which would entitle her to be admitted to this 

country, the immigration judge's finding that the applicant is excludable 

under section 212(a)(20) of the Act is correct. 

Although not raised on appeal, we note that the applicant has failed to 

establish her persecution claim, regardless of whether her case is assessed 

in terms of whether she has deponstrated a "clear probability," a "wellfounded fear," a "good reason," or a "realistic likelihood" that she will be 

persecuted within the contemplation of the Act if required to return to 

Haiti. See generally Stevie v. Sava, 678 F.2d 401 (2 Cir. 1982). 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

275