Interim Decision 40725 

MATTER of ESITADA-BETAZTOMMT 

In Exclusion Proceedings 

A-17251270 

A-17251272 

A-14326873 

Decided by Board April 10, .1987 

Since an alien who does not arrive in the United States at a designated port 

of entry is still in the act of entering this country only if the circumstances 

at the time of his interception are consistent with his having proceeded directly from the border to the nearest such port for inspection, an entry 

into the United States has been made by appellants, natives and citizens 

of Cuba, who arrived at other than a designated port (about 20 miles east 

of Brownsville, Texas) and proceeded 10 miles inland by automobile to the 

airport at Harlingen, Texas where they were taken into custody by Service officers, having been in this country about 3 hours and allegedly en route 

to Miami, Florida where they intended to present themselves for inspection 

as political refugees: consequently, expulsion, and not exclusion, proceedings are the proper forum for consideration of their cases. 

ExOLODABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 11823—Immigrant, no 

visa (all). 

ON BEHALF OF Simms: Robert A. Vielhaber 

Appellate Trial Attorney 

(Oral argument) 

Bernabe Q. Maldonado 

Trial Attorney 

(Brief filed) 

The record relates to three male aliens, natives and citizens of 

Cuba, who, on December 12, 1966, crossed to the United States from 

Mexico by boat at a point near the mouth of the Rio Grande, about 

20 miles east of Brownsville, Texas. They then proceeded by automobile to the airport at Harlingen, Texas, which is approximately 

20 miles northwest of Brownsville and 10 miles inland from the international boundry. They were there taken into custody by Service officers, at which time they had been on United States soil nearly 

three hours. 

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The subjects stated that they were en route to Miami, Florida, 

and that they intended to present themselves for immigration inspection as political refugees at that place, because: "" * that is 

where all other Cubans are living now and being helped * *". 

They were, however, transported to Brownsville for further interrogation. Subsequently, they were referred to a special inquiry officer for a hearing in exclusion proceedings, pursuant to sections 235 

and 236 of the Immigration and Nationality Act (8 U.S.C. 1225 

and 1226). 

The special inquiry officer ordered those proceedings terminated, 

concluding that expulsion proceedings were required as to these aliens, 

under section 242 of the Immigration and Nationality Act (8 U.S.C. 

1252). He then certified the case to this Board for review and final 

decision. 

The Service strenuously urges that the special inquiry officer erred 

in ruling that exclusion proceedings were improper in this instance. 

It argues that the aliens were still in the act of entering the United 

States until they reached their interior destination, to wit, Miami, 

Florida. It would have us give full faith and credit to the testimony 

of the aliens that they intended to be inspected at that point. 

The case of Brazil v. Ahrenal involved a group of Haitian aliens 

who arrived in the United States on a vessel which had to be towed 

into a port in Florida by a Coast Guard boat. They, too, apparently 

desired to be admitted to the United States as political refugees; they 

were paroled into the United States pursuant to section 212(d) (5) of 

the Immigration and Nationality Act (8 U.S.C. 1182) ; and they were 

subsequently referred to a. special inquiry officer for a hearing in exclusion proceedings. In the course thereof, it developed that they had 

never been lawfully admitted to the United States for permanent residence; that they desired to remain in the United States indefinitely; 

and that they were not in possession of appropriate documents to permit them to do so. In rejecting their claim that they were entitled to 

an expulsion proceeding rather than an exclusion proceeding, the court 

held : 

The controlling question in determining whether Petitioners were entitled to a 

deportation proceeding rather than an exclusion proceeding is the issue of 

whether they bad in fact made an "entry" within the meaning of that word as 

it is used in the Immigration and Nationality Act. 

That is the test which must be applied in determining whether exclusion or deportation proceedings are proper in the case now before us 

2LY.S.D.43., S.D., Fla., No 63-883 Civ.-OF, 12/24/63. 

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for consideration. The question of whether that "entry" is legal or 

illegal is immaterial (Lam Fo Sang v. Esperdy, 210 F. Supp. 786). 

The case of United States v. In Toy (198 U.S. 2E), involved a person of the Chinese race detained aboard a ship for deportation to 

China pursuant to an administrative decision that he was not a United 

States citizen. In denying his petition for habeas corpus, seeking a 

judicial trial on the issue of his citizenship, the Supreme Court of the 

United States pointed to the well-established principle that all persons 

attempting to enter the United States are subject to inspeotion by immigration officers for determination of their right to enter, regardless 

of the ground on which their claim to that right is based (p. 262) . Accordingly, it is clear that the aliens in this case were subject to immigration inspection. 

Section 241(a) (2) of the Immigration and Nationality Act (8 

U.S.C. 1251) provides that: "Any alien in the United States * * * 

shall, upon the order of the Attorney General, be deported who— * * * 

entered the United States without inspection at any time or place other 

than as designated by the Attorney General * * *.". Under the law, 

then, expulsion proceedings are required as to any alien who has entered the United States at other than a designated "port of entry." 

The case of Thaok v. Zurbriek (51 F. 2d 634), involved an alien previously admitted to the United States for permanent residence who 

was returning to this country from a visit to Poland, by way of 

Canada. He proceeded by train to the last Canadian station before 

reaching the Vermont border, where he sought advice from the American consular agent as to how he should get to his home in Massachusetts.' He was advised to go to the immigrant inspector at Newport, 

Vermont, six miles south of the border, and got a ride there but found 

the Immigration Office closed. He then stayed at a hotel in Newport 

overnight, and appeared at the Immigration Office as soon as it opened 

the following morning. He was thereupon made the subject of expulsion proceedings, on the ground that he had entered the United States 

without inspection. In ruling that the case was improperly in expulsion proceedings, in that the facts recited did not constitute an "entry 

without inspection," the court said : 

• Such entry cannot be, in all cases, completed by that technical entry 

which occurs when the international line is crossed. If such crossing were not in 

connection with or merged into an actual inspection at the appropriate place, 

"entered" might have this technical meaning, but if the alien merely follows the 

ordinary path from the international line to the nearest inspection point and 

presents himself for inspection, his action in so doing cannot be an offense for 

' He had apparently been unable to get a visa or reentry permit because of inability to obtain a passport. 

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which Congress intended be should be sent to his former foreign residence and 

forbidden return to this country. • • • 

We cannot agree with the Serviee that the aliens involved in this case, 

who did not arrive in the United States at a "designated port of entry" 

did not have to "follow the ordinary path from the international line 

to the nearest inspection point," because they actually intended to be 

inspected at some other port, to wit, Miami, Florida. The language of 

the court in question is clear and unequivocal. It permits no other reasonable interpretation than the one we have placed upon it. 

That aliens who do not cross the border at a "designated port of 

entry" must proceed directly to the nearest such port for inspection is, 

we think, made clear by the decision in Giaooni v. Corsi (64 F.2d 18). 

Therein, a resident alien returning from a short visit in Canada was 

arrested by a Customs border patrolman about one-half mile beyond 

the Customs and Immigration Office and charged in expulsion proceedings with entry without inspection and a crime prior to entry. The 

alien claimed that he intended to be inspected, but could not find the 

inspection station. The court, in upholding the propriety of expulsion 

proceedings, ruled that the inspector was not obliged to accept the 

alien's claim as to his intention where the circumstances of his presence 

beyond the inspection point (nearest) contradicted his claims. In that 

case they did, the alien having six fur coats and other dutiable items 

in his car. 

To the 'same effect is the ease of Natali v. Day (45 F.2d In). Therein, 

a resident alien went to Montreal to assist another alien to enter the 

United States. They paid a taxi driver to convey them to the St. 

Lawrence River, and an Indian to row them across the river. They 

crossed the border without inspection and were apprehended by a 

United States officer shortly thereafter. Under those circumstances, 

the court held that Natali was properly ordered deported for "entry 

without inspection"—at other than a designated port of entry—in 

expulsion proceedings. 

We think the foregoing authorities clearly call for the conclusion 

that these aliens, who did not arrive in the United States at a "designated port of entry," were required to proceed by the ordinary route 

to the nearest such port for their inspection. According to the list of 

such "ports" for these aliens who arrived in the United States by other 

than aircraft, Brownsville, Texas, was that "port" (section 151(c) 

(2)*.) We hold that when they evaded inspection at that place their 

"entry" was effected and they were thereafter properly the subject of 

expulsion proceedings for having "entered without inspection." We do 

• Statement of Organisation_ 

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not think that the judicial decisions relied on by the Service, infra, call 

for a contrary conclusion. 

Two of the cited cases (Era parte Chow Chok, 161 F. 627; U.S. v. 

Yuen Pale Sane, 183 F. 260) involved Chinese aliens who were under 

continuous observation while still in Canada; while crossing the international boundary; and thereafter while proceeding to a point in the 

United States quite proximate to the "line," where it became evident 

that they did not intend to be inspected at the "nearest port of entry." 

The court held that those aliens were properly the subject of exclusion 

proceedings because they never enjoyed any freedom from official restraint. That, obviously, is not true in the present case. 

The third case quoted by the Service (Jew Lee v. Brough,, 16 F.2d 

492) related to Chinese aliens first observed by inspectors in an automobile three miles south of the Canadian border. They were taken into 

custody one and a half miles further south, at which time they had been 

in the United States about ten minutes. The court therein found proper 

the subsequent administrative proceedings which resulted in an order 

for their deportation (expulsion), on the following grounds : (1) they 

were not in possession of immigration visas; (2) they had entered the 

United States at other than a designated port of entry; (8) they were 

likely to become public charges; and (4) they were found in the United 

States not in possession of certificates of residence required of Chinese 

laborers. On such facts, we fail to see how that case supports a conclusion that exclusion proceedings are proper herein. Actually, it supports the contrary conclusion we have reached. The only additional 

comment required in this connection is that the portion of the court's 

opinion on which the Service seizes was concerned with the quite 

diverse question of whether the aliens were entitled to a judicial trial 

on the issue of their citizenship, under the Chinese Exclusion Acts 

which have long since been repealed. Obviously, no ruling on that 

point could have any bearing on the present problem. 

The last Chinese case referred to by the Service (Leto Hoy v. United 

States, 237 F. 50) involved an indictment for "a conspiracy to commit 

an offense against the United States (•enal Code, s. 37) by knowingly 

bringing and causing to be brought from Mexico by land into the 

United States persons not lawfully entitled to enter or to remain in 

the latter country, and by aiding and abetting therein (23 Stat. 117, 

a. 11)." It was expressly averred, inter alga, that the aliens were to be 

taken to Rock Springs, Wyoming, and elsewhere in this country. The 

argument was advanced that the trial court erred in admitting evidence 

of acts subsequent to that of bringing the aliens across the "line" between Mexico and the United States. The Service attaches great weight 

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to the following language of the Court of Appeals in rejecting that 

argument: 

Successfully to consummate the unlawful introduction of the prohibited aliens 

required more than the mere bringing of them across the line. It was necessary 

to evade the immigration officials by transporting them into the interior and 

concealing their identity. 

We find the case not pertinent here, because of the following additional 

statement of the court on this point t 

The subsequent assistance by defendants to that end may well have been an 

-essential part of the unlawful project It is not necessary that each conspirator 

participate in each step or stage of the common general design. 

Obviously, in view of this language, the court was not concerned with 

tho fact of entry (it apparently conceded it), but with ants subsequent 

thereto and related to helping the aliens to remain in this country, as 

charged in the indictment. In other words, the indictment charged a 

conspiracy consisting of two parts, to wit, introducing aliens into the 

United.States, and assisting them to remain herein. The language 

under reference was concerned solely with the latter point. 

We find no support for the Service view in the fact that under present-day travel conditions aliens can 'proceed by aircraft non -stop from 

foreign places to cities hundreds of miles inland in this country. We 

see no valid reason why they, too, would not be deportable once it be-

-comes evident they did not intend to be inspected at the proper place. 

The inhdrent weakness in the Service position on this point is that it 

cannot he limited by time or distance and, accordingly, would result 

in the loss of controllable primary inspection. But this is precisely 

-what the Attorney General sought to maintain when he published a 

separate and distinct list of "ports of entry" for aliens arriving in the 

United States via aircraft (section 1.51(c) (a)) 

The deferred inspection of aliens at those "ports" is permitted because of adequate control assured by sanctions against carriers, private or commercial, spelled out in the law and the related regulations.° 

Obviously, only utter chaos in enforcement of the immigration laws 

could result from permitting aliens to proceed to inspection points 

they believe will best suit their own interests. The Service action in 

-conducting these aliens to Brownsville for inspection despite their 

testimony (which the Service asserts it believes) that they would be 

inspected in Miami, speaks for itself on this point. 

We find it to be of no material significance here that section 287(a) 

(2) of the Immigration and Nationality Act (8 U.S.C. 1557) author- 

•Statement of Organization. 

a Sections 237, 238, 239;271, 272 and 273. 

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izes Service officers to arrest without warrant aliens entering or 

attempting to enter the United States in their presence or view, in 

violation of law. The reason is that the same statute also authorizes the 

arrest without warrant of aliens in the United States in violation of 

law, if it appears that they are likely to escape before a warrant 

can be obtained. Thus, obviously, the statute provides for the arrest 

without warrant of two classes of aliens: (1) those entering or attempting to enter the United Stites; and (2) those who have already 

entered the United States, if they are likely to abscond. Accordingly, 

the fact that these particular aliens were arrested without warrant 

still leaves open the question of whether they were entering or had 

already entered the United States. 

By the same token, it is of no consequence that subsection (3) of 

section 287(a) of the Act authorizes Service officers patrolling the 

border to prevent the illegal entry of aliens into the United States 

to make "transportation checks" within a "reasonable distance" (defined by 8 CFR 2872 as 100 air miles) from the external boundaries 

of the United States, and gives said officers access to private lands 

within a distance of 25 miles from such external boundaries. The right 

of immigration officers to patrol the border, and while so doing to 

arrest aliens without warrant, is an issue separate and distinct from 

the question of whether aliens have entered the United States. The 

latter is the only problem confronting us here. 

8 CFR 287.8 does, as the Service points out, authorize Service officers "on the scene" to make a determination as to whether exclusion 

or expulsion proceedings shall be instituted in a given case, depending 

upon whether there is prima facie evidence of an actual or attempted 

entry into the United States. But the regulation does not make that 

initial administrative decision binding on this Board, and our jurisdiction to review the question (8 CFR 3 a mg.) would be otherwise 

rendered nugatory. The facts of this case, viewed in the light of the 

law and the controlling precedents, convinces us' that the original 

"local" judgment on the point was incorrect. 

We find it completely irrelevant that Mexico might be willing to 

accept these aliens as excludees, but would definitely be unwilling to 

accept them as deportees and that, therefore, our decision will place 

the Service in the position of having on its hands aliens whom it 

cannot deport, because of the political situation in which the United 

States presently finds itself vis-a-vis Cuba. In the first place, it is so 

well recognized as to obviate further discussion that mere convenience 

of enforcement does not justify construction of a statute not warranted 

by the language thereof, or the facts involved. Second, the situation 

thus outlined is not substantially different from that of countless aliens 

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found in the United States after many years for whom no country of 

deportation can be found, solely because of the passage of time. The 

peculiar situations thus created by the law are problems with which 

the Service must contend 6therwise. They certainly do not justify 

this administrative tribunal in. reaching a result unwarranted by the 

facts of this case applied in the light of the law and the dispositive 

interpretations thereof. 

Finally, we agree with the Service that it was improper for the 

special inquiry officer to take administrative notice of the fact that 

the Service does not always institute exclusion proceedings against 

Mexican aliens apprehended as close to the border as these aliens were. 

It may well be, as the Service urges, that in the Mexican cases referred 

to the evidence was clear that the aliens involved had already "made 

good" their entry into the United States. But the Important point is 

that the answer to the problem presented depends upon the facts 

peculiar to this case and to it alone. By the same token

, 

we also think 

that the special inquiry officer improperly referred in his decision to 

cases involving other Cuban nationals, as evidence of the employment 

of double standards by the Service in determining whether exclusion 

or expulsion proceedings are proper in any given instance. Nevertheless, for the reasons hereinbefore set forth, we conclude that his decision 

must be approved. 

ORDER: It is ordered that the special inquiry officer's decision of 

January,17, 1967, directing that the exclusion proceedings in this case 

be terminated be and the same is hereby affirmed. 

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