Interim Decision #2533 

MATTER OF LOULOS 

In Exclusion Proceedings 

A-22126158 

Decided by Board September 16, 1976 

(1) Applicant, a native and citizen of Greece, entered the United States as a crewman in 

1970 and remained unlawfully until May 1976 when he departed for Costa Rica in order 

to obtain an immigrant visa at an American Consulate. Subsequently he was deported 

to the United States by the Costa Rican authorities. He was not brought to this country 

by agents of the United States nor did the United States authorities expressly or 

impliedly consent to his deportation from Costa Mica to this country. He arrived on 

August 18 or 19, 1976, without a visa, passport or other travel document authorizing his 

entry into this country. Although he possessed the financial means to leave the United 

States when he arrived, he did not choose to do so. Following deferred inspection and a 

hearing, applicant was found excludable under section 212(a)(20) of the Immigration and 

Nationality Act as an immigrant who was not in possession of a valid immigrant visa. 

(2) Tinder the circumstances, an exclusion prneeecliug was the proper forum for this case 

because applicant failed to meet his burden under section 214(6) of the Act; applicant 

was not brought to the United States against his will by agents of the United States or 

with the consent of the United States Government; and applicant's past actions with 

respect to remaining in the United States indicated that he was in fact an applicant for 

admission. 

EXCLUDABLE: 

Act of 1952--Section 212(a)(20) [S U.S. C. 1182(a)(20)]--Immigrant not in possession of 

valid immigrant visa 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Jack Wasserman, Esquire George Indelicato 

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

Washington, D. C. 20006 

The applicant is a 24-year-old alien, a native and citizen of Greece. He 

last arrived in the United States on August 18 or 19, 1976, at New York 

City. Inspection was deferred pursuant to section 235(b) of the Immigration and Nationality Act. A notice of hearing (Form 1-122) (Ex. 1) 

was delivered to the applicant by the trial attorney on August 24, 1976. 

An exclusion hearing was held on August 24, 1976. Subsequent to that 

hearing, the immigration judge found the applicant excludable under 

section 212(a)(20) of the Act as an immigrant who was not in possession 

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Interim Decision #2533 

of a valid immigrant visa. The applicant has appealed from that decision. 

The appeal will be dismissed. 

On August 19, 1976, the applicant made a sworn statement to the 

Service (Ex. 2). In his affidavit, the applicant stated that he was a 

native and citizen of Greece who was "not in possession of any visa for 

the U.S."; that he last entered the United States in January,of 1970 as a 

crewman; that he remained in the United States until May of 1976; and 

that he then departed for Costa Rica. He indicated that he went to 

Costa Rica in order to obtain "an immigrant visa from an American 

consulate abroad"; and that after two and one-half months in Costa Rica, 

the Government of Costa Rica deported him to the United States. The 

applicant further stated that he arrived in the United States on a Pan 

American flight without a visa; and that the carrier desired that he 

proceed from the United States to Greece as an alien in tran sit without a 

visa. He indicated that he could not go to Greece because his passport 

had expired; but that he would have proceeded to Greece if he had a 

valid travel document. 

At the hearing, the trial attorney and the applicant (through counsel) 

stipulated that the applicant last arrived in the United States at John F. 

Kennedy Airport located in New York City on August 18 or 19, 1976, as 

a passenger aboard Pan American Flight 542 after having boarded at 

San Jose, Costa Rica; and that the applicant was not admitted to the 

United States. The parties also stipulated that the applicant was born in 

Greece on April 15, 1952; that he is a citizen of Greece; that neither of his 

parents was ever a citizen of the United States; that the applicant had 

never been admitted to the United States as a permanent resident alien; 

and that at the time of his last arrival, the applicant did not present a 

visa, passport or travel document. Both parties further agreed that the 

applicant was deported from Costa Rica to the United States; and that 

the applicant has no close family ties in the United States. The immigration judge noted that, upon arrival in the United States, the applicant 

indicated that he had a $1,000 bank check made out to his order. Upon 

the request of the trial attorney and counsel for the applicant, the 

immigration judge announced that he would not consider the allegation 

contained in the notice of hearing (Ex. 1) to the effect that the applicant 

is likely to become a public charge. 

Counsel contended at the hearing that the applicant was brought to 

the United States involuntarily by virtue of his deportation by the 

Government of Costa Rica; and that the applicant is not now applying for 

admission to the United States, The immigration judge noted that 

counsel for the applicant specifically declined to apply for a waiver of 

entry documentation, visa and passport. Counsel further contends that 

au alien who is involuntarily brought to the United States should be 

released from custody and be allowed to depart the T.Tnited States 

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Interim Decision #2533 

voluntarily. At oral argument, counsel maintained that the applicant did 

not make an entry into the United States; that the applicant was not 

applying for admission to the United States; that he was brought to the 

United States involuntarily; and that an exclusion proceeding is inappropriate. Counsel submits that the applicant must be given the opportunity to depart the United States voluntarily, and if he fails to do so, 

then it would be appropriate for the Government to commence deportation proceedings. 

Counsel contends that the applicant did not effect an entry into the 

United States within the meaning of section 101(a)(13) of the Act. An 

alien does not effect an entry into the United States unless, while free 

from actual or constructive restraint, he crosses into the territorial 

limits of the United States and is inspected and admitted by an immigration officer or actually or intentionally evades inspection at the 

nearest inspection point. Matter of Pierre et al., Interim Decision 2238 

(BIA 1973). In this case, the applicant's entry into the United States 

(upon his arrival in New York City) was thwarted during an inspection 

by an immigration officer when the applicant was unable to produce a 

valid unexpired immigrant visa. We find that the applicant was not 

admitted, and, therefore, did not effect an "entry""into this country. 

In support of his contention that the applicant must be given the 

opportunity to voluntarily depart from the United States, counsel cites 

Un.ited States ex ?el. Bradley v. Watkins, 163 F.2d 328 (2 Cir. 1947); 

United States ex rel. Paetau v. Watkins, 164 F.2d 457 (2 Cir. 1947); and 

United States ex rel. Sommerkamp v. Zimmerman, 178 F.2d 645 (3 

Cir. 1949). In the Bradley case (a habeas corpus proceeding), the court 

held that an alien seized by the United States Navy in Greenland, 

brought to the United States against his will, and interned as an alien 

enemy for security reasons could not be deported as an "immigrant"—at 

lemaAt, not before he had been afforded an opportunity to depart voluntarily. The theory of the Bradley decision is that an alien brought here 

by agents of the United States against his will is not an "immigrant" 

within the meaning of the immigration laws. In the Sommerkamp case, 

the facts related to an alien who was seized by the United States Army 

in Guatemala at the outbreak of World War II, and brought to the 

United States against his will and interned for security reasons. The 

alien's internment was subsequently terminated, and he was given the 

opportunity to depart voluntarily but he did not do so. In a habeas 

corpus proceeding, the court held that the subsequent presence of the 

alieln in the United States was "voluntary," and therefore he had made 

an "entry" and was subject to deportation as an immigrant. In the 

Pa.etau case (also a habeas corpus proceeding), the facts related to an 

a:Nan who was deported to Germany by Guatemalan authorities and 

placed on an airplane bound for the United States. The Guatemalan 

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Interim Decision #2533 

Government had requested other countries to permit the alien's passage 

to Germany. The alien, who applied for admission to the United States, 

was detained and ultimately held in deportation proceedings as an 

immigrant who had made an illegal entry. The court applied the rationale of the Bradley ease, and held that it made no difference whether an 

alien is forcibly brought into this country directly by the United States 

authorities or whether such action is accomplished by a foreign government with the consent of the United States. The court was of the opinion 

that the United States authorities accepted the deportation of the alien 

from Guatemala, and supported that action when they took steps 

against the alien for his asserted illegal entry in order to insure his 

return to Germany_ The deportation order was reversed, the writ was 

sustained, and the alien was released from the custody of the Service. 

The rationale that has been consistently expressed by the courts is 

that an alien who is involuntarily brought to this country by agents of 

the United States is not considered to be an "immigrant" within the 

meaning of section 101(a)(15) of the Act. See also United States ex rel. 

Ludwig v. Watkins, 164 F.2d 456 (2 Cir. 1947). This rationale has been 

held to be applicable not only to a situation in which agents of the United 

States directly bring an alien into the United States against his will, but 

also to a situation in which United States authorities consent to such an 

action by a foreign government. See United States ex rel. Paetau v. 

Watkins, supra. It is apparent that the holdings of these cases are 

predicated upon the direct participation of United States authorities in 

effecting the removal of an alien from another country to the United 

States against his will or upon the consent of United States authcrities 

to such action by the government of a foreign country. We find that the 

ease at hand is factually distinguishable from the above cited cases. The 

applicant was not brought to this country by agents of the United States 

against his will. Further, United States authorities did not expressly or 

impliedly consent to his deportation to the United States by the Government of Costa Rica. We therefore conclude that the cases cited by 

counsel are inapplicable to this case. 

Counsel's contention that Vassilios Loulos is not an applicant for 

admission is without merit. It is clearly implied in the applicant's present and past conduct that he is seeking admission to the United States. 

We find that the applicant resided in the United States unlawfully for 

more than six years before he voluntarily departed this country for 

Costa Rica in a improvident attempt to legalize his status by obtaining 

an immigrant visa. Further, we find that upon his arrival in the United 

States following his deportation from Costa Rica, the applicant had the 

freedom and the financial means to arrange for his transportation to 

Greece, his native country, but chose not to do so. Instead, he decided to 

remain in the United States. His statement that he did not go on to 

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Interim Decision #2533 

Greece because he did not possess an unexpired passport is curious since 

he also did not have proper documentation to enter the United States. 

Section 214(b) of the Act provides that every alien shall be presumed 

to be an immigrant until he establishes to the satisfaction of the Service, 

at the time of application for admission, that he is entitled to nonimmigrant status. 

At the time of his inspection, the applicant did not present any 

documentation which would entitle him to enter the United States. We 

conclude that an exclusion proceeding was the proper forum in this case. 

We further conclude that the applicant failed to sustain his burden 

under section 214(b) of the Act. Therefore, he must be presumed to be 

an immigrant and is excludable under section 212(a)(20). Accordingly, 

the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

Participating . Members: Milhollan, Wilson, and Maniatis. 

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