Interim Decision #2206 

MATTER OF ACCARDI 

In Exclusion Proceedings 

A-5170719 

Decided by Board June 4, .1973 

(1) An alien brought involuntarily to the United States under authority of a 

Presidential warrant issued in connection with extradition proceedings and 

paroled under section 212(dX5) of the Immigration and Nationality Act for 

prosecution, was properly held for exclusion proceedings where, upon release 

from prison, he indicated unwillingness to return to the country whence he 

came and an interest in admission to the United States. 

(2) While 8 CFR 212.5 authorizes the District Director to parole an alien into the 

United States pursuant to the provisions of section 212(dX5) of the Act, the 

regulation does not limit such parole authority solely to the District Director. 

(3) A grant of parole "indefinitely" is not in contravention of a grant of parole 

"temporarily" within the contemplation of section 212(dX5) of the Act. 

EXCLUDABLE: Act of 1952—Section 212(aX23) [8 U.S.C. 1182(a)(23)]—Convicted of 

a violation of law relating to the illicit possession 

of or traffic in narcotic drugs, prior to entry. 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Jack Wasserman, Esquire David L. Milhollan 

1707 "H" Street, N.W. Appellate Trial Attorney 

Washington, D.C. 20006 

This is an appeal from an order of an immigration judge dated 

September 19, 1972, finding the applicant excludable under the 

provisions of seetion 212(aX22) of the Immigration and Nationality 

Act. The appeal will be dismissed. 

Applicant is a 70-year-old married male alien, a native of Italy. 

He became a naturalized citizen of the United States in 1945. He 

was denaturalized in 1953. It has been verified that the applicant 

is now stateless (Ex. 12). 

• In a decision dated August 18, 1955, the applicant was found 

deportable pursuant to section 241(a)(4) of the Act, as an alien who 

had been convicted of a Crime involving moral turpitude within 

five years after entry. On August 18, 1955, the Board dismissed the 

appeal from this derision. A snit. for a deelaratory judgment was 

filed in the United States District Court, District of Columbia, on 

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August 23, 1955, which suit was dismissed by stipulation. Applicant was arrested on the basis of an indictment filed on August 18, 

1955 with the United States District Court, Southern District of 

New York, charging him with the sale and possession of narcotics 

and conspiring to sell narcotics. On September 28, 1955, applicant 

failed to appear for trial, his bail bond of $75,000 was forfeited, and 

a bench warrant was ordered. His immigration bond of $5,000 was 

declared breached on October 12, 1955. A warrant for his deportation was issued by the Service on May 10, 1956. However, applicant 

was located in Sicily, having left the United States by boat on 

March 1, 1956. 

Under authority of a Presidential warrant issued in connection 

with extradition proceedings, applicant arrived in the United 

States on November 12, 1963, by air, in the custody of United 

States narcotic agents. The Immigration Service prepared a Form 

1-94, which states: "Paroled INDEFINITELY Per Authority of 

NERO to custody of Geo BELK, US Narcotics, NY." On August 24, 

1964, after trial, he was convicted in the United States District 

Court for the Southern District of New York of sale and possession 

of narcotics and conspiring to sell narcotics. He was sentenced to 

five years on each of three counts running consecutively and fined 

$16,000. The Service detainer notice to the Federal House of 

Detention, New York, dated September 3, 1964, reads, "alien 

paroled into United States for prosecution section 212(dX5)." On 

April 4, 1972, applicant was released from his imprisonment at the 

Federal penitentiary, Atlanta, Georgia. On April 14, 1972, he was 

paroled for the purpose of reporting to the Service at Newark, 

New Jersey and was served with Form 1-122, notifying him that 

he was being detained for a hearing before an immigration judge 

pursuant to the provisions of section 235(b) of the Act because it 

appeared that he might be excludable under section 212(a)(23) of 

the Act. On the same date, he was reparoled indefinitely pending 

conclusion of the hearing in exclusion proceedings. 

We reject counsel's contention that the Attorney General is 

authorized to parole only those who are applicants for admission. 

The power of Congress to determine the conditions under which 

aliens may enter and remain in the United States is beyond 

question, Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953); 

U.S. ex rel. ;'):nctuff v. Shaughnessy, 338 U.S. 537 (1950); Siu Fung 

Lute v. Rosenberg, 409 F.2d 555 (C.A. 9, 1969). The legislative 

history of the parole provisions of section 212(d)(5) of the Act 

reveals that they were enacted in compliance with a recommendation by the Attorney General that he be given the necessary 

authority to parole aliens for purposes which are in the public 

interest. Among the latter was "purposes of prosecution" (S. Rept. 

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No. 1137, 82d Cong., 2d sess., pp. 12-13) — the very purpose for 

which parole was here used. See Matter of K—, 9 I. & N. Dec. 143 

(BIA, 1959; A.G. 1961). 

The applicant, in .departing from the United States to Italy on 

March 1, 1956 while a deportation order was still outstanding, 

deported himself; section 101(g) of the Act. There is no dispute over 

the fact that the applicant returned to the United States involuntarily on November 12, 1963, pursuant to a Presidential warrant of 

arrest. At the time he arrived in the United States, he was not an 

applicant for admission. However, as it is empowered, the Service 

paroled the applicant for the purpose of prosecution and since he 

has never been free from restraint, he has never accomplished an 

entry into the United States, In re Dubbiosi, 191 F. Supp. 65 (E.D. 

Va., 1961); United States v. Vasilatos, 209 F.2d 195 (C.A. 3, 1954). 

During the lengthy prison term served by the applicant, there 

was no necessity to serve him with a Form 1-122 to detain him for 

an exclusion hearing. He was here in the United States against his 

will. However, upon his release from prison, it was determined, 

through counsel and from the applicant himself, that he did not 

wish to return to Italy. This clearly indicated that the applicant 

was interested in admission to the United States. It was then that 

this case was set down for exclusion proceedings. Consistent with 

the Congressional mandate, the administrative concept of parole, 

and the decisions of the courts, he is, in theory of law, on the 

threshold of initial entry, U.S. ex rel. Tom We Shung v. Murff, 176 

F. Supp. 253 (S.D. N.Y., 1959), affirmed per euriam U.S. ex rel. We 

Shung v. Murff, 274 F.2d 667 (CA. 2, 1960); Leng May Ma v. Barber, 

357 U.S. 185 (1958). Parole status is not an admission of an alien to 

the United States. The delay in setting up the exclusion hearing 

did not accomplish an entry. We are satisfied that when the 

Service did detain the applicant for exclusion proceedings, he was 

an applicant for admission and this was a matter properly subject 

to exclusion, rather than expulsion, proceedings. 

Counsel claims that section 212.5 of the regulations gives authority only to the District Director in charge of the port of entry 

to parole under the provisions of section 212(dX5) of the Act. This is 

not so. Although this regulation permits the District Director to 

parole under section 212(dX5), it does not limit this authority solely 

to the District Director. 

The concept of parole referred to by counsel, on appeal, relates 

to release from prison, confinement or custody under penal law 

and has no relationship to the concept of parole under the 

immigration laws. It is counsel's contention that a grant of parole 

"indefinitely" is in contravention of the meaning of a grant of 

parole "temporarily" contemplated by section 212(dX5). We do not 

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Interim yecision rzzuo 

agree. The only meaning we ascribe to the use of the word 

"temporarily" in this portion of the statute is that the parole 

would not be permanent. In view of the intention of Congress in 

providing for parole for "purposes of prosecution," we are satisfied 

that what the Service meant by use of the word "indefinitely" was 

that parole was being granted for an unspecified amount of time 

and certainly did not imply permanent parole. 

On appeal, counsel implies that since the applicant was brought 

into the United States in the custody of United States narcotic 

agents and was permitted to pass through the Immigration 

Service without detention by the Service for exclusion proceedings, he entered the United States and was not subject to exclusion. The only case which suggests that the bringing of an alien to 

this country by authorities other than the Immigration Service 

constitutes an entry for exclusion purposes is Blumen v. Haff, 78 

F.2d 833 (C.A. 9, 1935), cert. denied 296 U.S. 644 (1935), which was 

specifically disapproved in U.S. ex rel. Bradley v. Watkins, 163 F.2d 

328 (C.A. 2, 1947), and impliedly disapproved in U.S. ex rel. Ling 

Yee Suey v. Spar, 149 F.2d 881 (CA. 2, 1945). 

Counsel asserts that since Italy, the country whence the applicant came, will not accept him, applicant's status should be 

changed from an excludee to that of an expellee so as to entitle 

him to a variety of alternative countries to which he may be 

deported under section 243(a). There is no merit to this contention. 

Section 237(a) of the Act provides for the immediate deportation of 

an excluded alien only "to the country whence he came." It does 

not require the consent of the country to which deportation is 

ordered. Unlike section 243(a) which pertains solely to deportation 

proceedings, section 237(a) does not list a variety of alternative 

countries to which deportation may be proper. Interpretation of 

the restrictive language of section 237(a) leaves us no option but to 

apply its terms as long as they stand, Merton v. Esperdy, 413 F.2d 

644 (CA. 2, 1969); U.S. ex rel. Milanovie v. Murff, 253 F.2d 941 (C.A. 

2, 1958). 

In Klapholz v. Esperdy, 201 F. Supp. 294 (S.D. N.Y., 1961), 

affirmed 302 F.2d 928 (1962), cert. denied 371 U.S. 891 (1962), the 

court held that a conviction of an alien of a crime involving moral 

turpitude while on parole within the country WAR a ground for 

exclusion. Accordingly, we find that the conviction of the applicant 

while on parole was a proper ground for excluding him. 

Hence, the applicant's appeal is without merit and the following 

order will accordingly be entered. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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