Interim Decision #2653 

MATTER OF YAM 

In Deportation Proceedings 

A-15950259 

Decided by Board May 30, 197:8 

(1) An alien does not effect an entry into the United States unless, while free from actual 

or constructive restraint, he crosses into the territory of the United States and is 

inspected and admitted by an immigration officer, or actually or intentionally evades 

inspection at the nearest inspection point. 

(2) An alien found floating in Niagara River, and brought by police while unconscious to a 

hospital in the United States where he was turned over to the Border Patrol, did not 

effect an entry. 

Deportation proceedings ordered terminated as to alien fomnd in Niagara River and 

brought into the United States while unconscious, since exclusion was the proper 

procedure. 

CHARGES: 

Order. Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1--Entered without inspection 

Lodged: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)I—At time of entry, within 

one or more classes of aliens excludable by the law existing at 

the time of such entry, to wit, aliens who have been arrested 

and deported, consent to apply or reapply for admission not 

having been granted by the prope=r authority under section 

212(a)(17) of the Act 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Jules E. Coven, Esquire George Masterton 

Lebenkoff & Coven Appellate Trial Attorney 

One East 42nd Street 

New York, New York 10017 

BY: Maguire, Acting Chairman; Maniatis, Appleman, and Farb, Board Members 

This case presents an appeal from a decision of the immigration judge 

on September 29, 1977, finding the respondent deportable and ordering 

his deportation to Hong Kong on the charge contained in the Order to 

Show Cause and the charge contained in the Additional Charges. The 

appeal will be sustained. 

The respondent is a. native and citizen of Chins, who last entered the 

United States in August 1977, allegedly without inspection by an immi535 
Interim Decision #2653 

gration officer. He had previously been deported from this country in 

1965, 1969, and, following denial of his motion to reopen these proceedings in order to apply for -withholding of deportation, again in June 1977. 

lie failed to obtain permission from the proper authority last August to 

reapply for admission to this country after his third deportation two 

months earlier. 

About nine or ten o'clock on the evening of August 23, 1977, two 

fishermen discovered the respondent floating after dark in the Niagara 

River, near Lewiston, New York. They pulled him into their boat about 

100 feet off the American shoreline. One of the fishermen, Kenneth 

Dunkin, testified that he did not know the exact location of the International Boundary Line, but that the respondent was then unconscious 

(Tr. p. 7). The two fishermen radioed ashore for assistance and were 

met at the dock by the Lewiston Chief of Police, who likewise did not 

know the exact location of the International Border (Tr. p. 17). The 

latter testified that the respondent was then semiconscious and being 

administered oxygen. He followed the ambulance to Mount St. Mary's 

Hospital, calling en route for a Border Patrol Agent to meet him there 

because he was suspicious of an illegal entry (Tr. p. 14). The Chief of 

Police also testified that he took custody of a black garbage bag that the 

alien had in his possession when rescued (Tr. p. 12). It contained inter 

alia a Hong Kong passport, driver's licenses from New York and New 

Jersey, and a "multitude of pia-sires" (Tr_ p. l2). The Police Chief and 

the Senior Inspector first interviewed the respondent after he had been 

x-rayed and treated in the hospital's emergency room. The respondent 

allegedly was given the Miranda warning by the Senior Inspector (Tr. 

pp. 16, 19). 

The immigration judge, noting that the respondent refused to testify 

at the hearing on constitutional grounds, found that he was deportable 

on all the charges. In the absence of an application by counsel for any 

form of discretionary relief (Tr. p. 22), the immigration judge ordered 

that the respondent be deported to Hong Kong. The main thrust of 

counsel's contentions on appeal is that the respondent did not make an 

entry into the United States on August 23, 1977, and that the proper 

procedure herein should have been exclusion proceedings, rather than 

deportation proceedings. 

In the unusual circumstances of this case, we find that counsel's 

reliance upon our decision in Matter of Pierre, 14 I. & N. Dec. 467 (MA 

1973) was well-placed since there is a strong similarity in the facts of 

both cases. An alien does not effect an entry into the United States 

unless, while free from actual or constructive restraint, he crosses into 

the territory of the United States and is inspected and admitted by an 

immigration officer, or actually nr intentionally evades inspection at the 

nearest inspection point. See Matter of Laulos, Interim Decision 25= 

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Interim Decision #2653 

(BIA 1976); Matter of Pierre, supra, and cases cited therein. Freedom 

from official restraint must be added to physical presence before entry is 

accomplished. See United States v. Vasilatos, 209 F.2d 195 (3 Cir. 

1954); United States v. Lazareseu, 199 F.2d 898 (4 Cir. 1952). It can 

hardly be said that the respondent was free from official restraint when 

taken into custody since one witness testified that he was unconscious_ 

Another witness stated that he was semiconscious and being administered oxygen. The respondent was in fact the victim of constructive 

restraint. Nor did the respondent consciously achieve physical presence 

within the geographical boundaries of the United States when he was 

the fortunate beneficiary of a humanitarian gesture by the two fishermen. The courts have also held, as pointed out at page 469 in Pierre, 

supra, that "no entry is made when the alien is taken into custody upon 

his arrival at an American port . . . ." See Klapholz v. Esperdy, 302 

F.2d 928 (2 Cir. 1962), cert. denied 371 U.S. 891 (1962). 

The respondent has shown a blatant disregard for our immigration 

laws over a long period of time. Nevertheless, his rights in this instance 

must be protected even though his true intention may have been to 

enter the United States surreptitiously. His unproven motive for being 

in the Niagara River in the "pitch dark" (Tr. p. 9), therefore, can have 

no bearing on the issue of his physical condition at the moment he was 

taken into custody. We find that the respondent did not make an "entry" 

into this country, within the purview of section 101(a)(13) of the Immigration and Nationality Act, as amended. 

We agree with the contentions of counsel that these proceedings 

should have been held in exclusion. In view of the foregoing, we must 

conclude that the immigration judge was without jurisdiction to determine the issue of deportability. Accordingly, the appeal will be sustained and these proceedings ordered terminated. 

ORDER: The deportation proceedings are terminated. 

537