Interim Decision #3162 

MATTER OF D-L- & A-MIn Exclusion Proceedings 

A-29595639 

A-29595640 

Decided by Board October 16, 1991 

Applicants for admission to the United States, who were not traveling in transit 

without visa status, are not excludable under section 212(a)(19) of the Immigration and 

Nationality Act, 8 U.S.C. § 1182(a)(19) (1988), where the applicants did not present or 

intend to present fraudulent visas or travel documents or documents containing willful 

misrepresentations to an authorized official of the United States Government at the 

time of their attempted entry. Matter of Shirdel, 19 l&N Dec. 33 (BIA 1984), 

distinguished. 

EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [8 U.S.C. § 1182(a)(19)]—Fraud or 

willful misrepresentation of a material fact (both 

applicants) 

Sec. 212(a)(20) [8 U.S.C. § 1182(a)(20)]—No valid 

immigrant visa (both applicants) 

ON BEHALF OF APPLICANTS: ON BEHALF OF SERVICE: 

Pro sel Hans Burgos 

General Attorney 

BY: Milhollan, Chairrnan; Dunn; Morris, and Vacca, Board Members. Concurring 

Opinion: Heilman, Board Member. 

In a decision dated March 23, 1990, an immigration judge found 

the applicants excludable as alleged, denied their applications for 

asylum and withholding of exclusion and deportation under sections 

208(a) and 243(h) of the Immigration and Nationality Act, 8 U.S.C. 

§§ 1158(a) and 1253(h) (1988), and ordered them excluded and 

deported from the United States. The applicants have appealed from 

1 The applicants' counsel filed a motion to withdraw as attorney of record. The motion 

indicates that the applicants no longer wish counsel to represent them. The applicants' 

last known address is indicated on the certificate of service accompanying the motion. 

We find the motion to conform to our requirements set forth in Matter of Rosales, 19 

I&N Dec. 655 (BIA 1988). Accordingly, the motion to withdraw is granted. 

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that decision. The appeal will be sustained in part and dismissed in 

part. 

The applicants, husband and wife, are natives and citizens of Cuba 

who arrived in the United States on April 11, 1989, by commercial 

flight from Spain. At their March 23, 1990, exclusion hearing, the 

applicants conceded excludability under section 212(a)(20) of the Act, 

8 U.S.C. § 1182(a)(20) (1988), but contested excludability under 

section 212(a)(19) of the Act.. The male applicant testified that, upon 

their arrival in Miami, he and his wife surrendered to immigration 

officials the photo-switched Spanish passport they had used to board 

the airplane in Spain, identified themselves as Cuban citizens, 

presented their Cuban birth certificates, and requested asylum in the 

United States. The immigration judge found the applicants excludable 

under both grounds. Although he found that the applicants had not 

attempted to use the fraudulent document to enter, the immigration 

judge based his finding of excludability under section 212(a)(19) of the 

Act on the fact that the applicants used the fraudulent Spanish 

passport in order to arrive in the United States and request asylum. 

Following the finding of excludability, the applicants applied for 

asylum and withholding of deportation. The female applicant's asylum 

application is based on the asylum claim of her husband_ 

Regarding his request for asylum and withholding of deportation, 

the male applicant stated in his Request for Asylum in the United 

States (Form 1-589) that he was arrested by the Cuban police in 1963 

for his activities with the National Liberation Movement ("NLM"), an 

organization that intended to overthrow the Castro government. The 

male applicant reported in his application that he held the rank of 

captain in the NLM and that he was arrested, along with 12,000 

others, for conspiring to prepare a landing site where weapons were to 

be dropped for use in an armed uprising against the Castro regime. 

At his exclusion hearing, the male applicant testified that, following 

his arrest, he was detained for 3 months without a trial and was 

tortured and raped while in jail. He stated that his father, arrested the 

same day for his own involvement with the NLM, was convicted of 

conspiring against the powers of the state and was sentenced to 5 years' 

imprisonment. He testified that his father was mistreated in prison 

and died 7 months after his release. The male applicant asserted that, 

following his arrest, the authorities forbade him from working at his 

former job because he was a counterrevolutionary. He related that he 

had no alternative but to harvest rice and tobacco on a small parcel of 

land which he owned. He explained that he was arrested on other 

occasions, questioned, and released. The most recent arrest, and the 

only arrest described specifically by the male applicant at his hearing, 

occurred in 1980, during the Martel boatlift, when he was held for 1 
Interim Decision #3162 

day and threatened that he would be tried for the same crimes as his 

father. 

The male applicant testified that he, his wife, and their son left 

Cuba for Spain in 1983, at which time he was forced to give all of his 

property to the Cuban Government in order to leave. On crossexamination, he explained that he and his family lived in Spain for 6 

years, although he had been attempting to obtain a visa to the United 

States since 1963; that he and his family were temporary residents in 

Spain; that the temporary residency was renewable annually; that he 

and his son sold cigars on the street while his wife worked as a cleaning 

woman; and that if he had obtained a work contract, his family's 

temporary residency in Spain could then have been made permanent. 

The immigration judge denied the male applicant's request for 

asylum and withholding of deportation on statutory grounds and went 

on to find that he also did not merit asylum as a matter of discretion. 

On appeal, the applicants argue that the immigration judge erred in 

finding them excludable under section 212(a)(19) of the Act based 

solely on the manner in which they arrived in the United States. The 

applicants also contend that the immigration judge erred in denying 

them asylum and withholding of deportation. They assert in this 

regard that the immigration judge failed to give proper weight to the 

male applicant's testimony regarding his torture, rape, and abuse 

during his imprisonment by the Castro regime in 1963, as well as the 

subsequent arrests and detentions that continued until he left Cuba. 

We will first examine the issue of the applicants' excludability under 

section 212(a)(19) of the Act. The burden in exclusion proceedings is 

upon an applicant for admission to establish that he is not inadmissible under any provision of the Immigration and Nationality Act. See 

section 291 of the Act, 8 U.S.C. § 1361 (1988); Matter of De La Nues, 

18 I&N Dec. 140 (BIA 1981); Matter of Healy and Goodchild, 17 I&N 

Dec. 22 (BIA 1979). Section 2I2(a)(19) of the Act renders excludable 

from admission 

[a]m,alien who, by fraud or willfully misrepresenting a material fact, seeks to 

procure, or has sought to procure or has procured, a visa, other documentation, or 

entry into the United States or other benefit provided under this Act. 

It is well established that fraud or willful misrepresentation of a 

material fact in the procurement or attempted procurement of a visa, 

or other documentation, must be made to an authorized official of the 

United States Government in order for excludability under section 

212(a)(19) of the Act to be found. See Matter of Shirdel, 19 I&N Dec. 

33 (BIA 1984); Matter of L-L-, 9 I&N Dec. 324 (BIA 1961). 

The case at hand, however, concerns the issue of when an alien is 

excludable for fraud or willful misrepresentation of a material fact in 
Interim Decision #3162 

seeking to procure entry into the United States. In Matter of Shirdel, 

supra, we found Afghan nationals arriving in the United States with 

fraudulent Turkish passports in order to submit applications for 

asylum to be excludable under section 212(a)(19) of the Act for seeking 

entry into the United States by fraud or material misrepresentation? 

However, the aliens in Shirdel were traveling under a special status 

known as transit without visa ("TRWOV"). 3In Shirdel, we did not 

reach the issue of when aliens other than those in the TRWOV status 

will be found excludable for seeking entry by fraud or misrepresentation.4We now hold that, outside of the TRWOV context addressed in 

Shirdel, an alien is not excludable under section 212(a)(19) of the Act 

for seeking entry by fraud or willful misrepresentation of a material 

fact where there is no evidence that the alien presented or intended to 

present fraudulent documents or documents containing material 

misrepresentations to an authorized official of the United States 

Government in an attempt to enter on those documents. 

In the instant case, the evidence shows that the applicants purchased a fraudulent Spanish passport bearing a nonimmigrant visa for 

the United States. Upon arrival in Miami, the applicants surrendered 

the false document to United States immigration officials, immediate2The aliens in Matter of Shirdel did not attempt to use the fraudulent documents to 

enter. We based our finding of fraud in Shirdel on the fact that the aliens' use of the 

fraudulent passports in order to avail themselves of the privilege of obtaining transit 

without visa status was an integral step in their scheme to eventually enter as refugees 

and therefore constituted "seeking to enter by fraud" under section 212(a)(19) of the 

Act. 

3TRWOV aliens are admitted under agreements with the transportation lines, which 

guarantee their immediate and continuous passage to a foreign country, and do not 

encounter United States officials until they arrive at a port of entry. See generally Matter 

ofPAA "Flight 896/10," 8 I&N Dec. 498 (BIA 1959). The TRWOV device is designed to 

facilitate international travel by permitting aliens traveling between foreign countries to 

make a stopover in the United States without presenting a passport or visa. See section 

212(d)(4)(C) of the Act. To avail himself of the TRWOV privilege, an alien must 

establish that he is admissible under the immigration laws; that he has confirmed and 

onward reservations to at least the next country beyond the United States; and that he 

will continue his journey and depart from this country within 8 hours after his arrival or 

on the next available transport. See 8 C.F.R. § 214.2(c) (1991). 

4We note that at the time Shirdel was decided, section 212(a)(19) of the Act rendered 

excludable from admission 

lainy alien who seeks to procure, or has sought to procure, or has procured a visa or 

other documentation, or seeks to enter the United States, by fraud, or by willfully 

misrepresenting a material fact. 

We find that the present version of section 212(a)(19) of the Act does not change the 

analysis or outcome of Matter of L.Ir, supra, or Matter of Shirdel, supra. The underlying 

intent of section 212(a)(19) continues to be to exclude those attempting to commit fraud 

or material misrepresentations in the presence of authorized officials of the United 

States Government. 
Interim Decision #3162 

ly revealed their true identity, and asked to apply for asylum. This 

action does not provide a basis for excludability under section 

212(a)(19) of the Act, as it does not involve fraud or misrepresentation 

to an authorized official of the United States Government. Therefore, 

we find that the applicants have shown they are not excludable under 

section 212(a)(19) of the Act. 

Next, we turn to the application for asylum and withholding of 

deportation. To be eligible for withholding of deportation, an alien 

must show a clear probability of persecution in the country designated 

for deportation, on account of race, religion, nationality, membership 

in a particular social group, or political opinion. INS v. Stevic, 467 U.S. 

407 (1984). This means that the alien must establish that it is more 

likely than not that he would be subject to persecution for one of the 

grounds specified. Id. 

An applicant for asylum must establish that he is unwilling or 

unable to return to his country because of persecution or a "wellfounded fear" of persecution on account of race, religion, nationality, 

membership in a particular social group, or political opinion. A "wellfounded fear" of persecution may be established upon a lesser showing 

than the clear probability of persecution required for withholding of 

deportation under section 243(h) of the Act. An applicant for asylum 

has established a "well-founded fear" of persecution if he shows that a 

reasonable person in his circumstances would fear persecution. See 

sections 101(a)(42)(A), 208(a) of the Act, 8 U.S.C. §§ 1101(a)(42)(A), 

1158(a) (1988); INS v. Carcioza-Fonseca, 480 U.S. 421 (1987); 

Guevara-Flores v. INS, 786 F.2d 1242 (5th Cir. 1986), cert. denied, 480 

U.S. 930 (1987); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). 

Where an alien has shown that he has been persecuted in the past on 

account of race, religion, nationality, membership in a particular social 

group, or political opinion, the likelihood of present persecution then 

becomes relevant as to the exercise of discretion, and asylum may be 

denied as a matter of discretion if there is little likelihood of present 

persecution. Matter of Chen, 20 INN Dec. 16 (BIA 1989). 

In this case, we find that the male applicant has failed to establish a 

well-founded fear of detention or harm upon returning to Cuba on 

account of his political opinion or other statutory grounds. First, the 

male applicant has not shown a well-founded fear of persecution on 

the basis of his arrest and 1-day detention in 1980. He has not shown 

that the circumstances of that brief detention and interrogation 

constituted persecution. See Zalega v. INS, 916 F.2d 1257 (7th Cir. 

1990). In addition, he continued to live and work in Cuba without 

incident for 3 years following his 1980 detention. 

Second, the male applicant has not established a well-founded fear 

of persecution based on his detention in 1963. As he was released after 

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3 months and continued to live and work in Cuba for 20 years 

thereafter, he has not shown that the Cuban Government maintains an 

interest in him now for his activities in 1963. Matter of Acosta, 19 I&N 

Dec. 211 (BIA 1985), modified on other grounds, Matter of Mogharrabi, supra. 

Third, the male applicant has not established a well-founded fear of 

persecution based on the refusal of Cuban Government officials to 

allow him to return to his job following his release from detention. The 

male applicant admitted he was able to make a living raising tobacco 

and rice on land that he owned. He therefore failed to show that the 

Cuban Government had placed him in a situation so severe as to 

deprive him of a livelihood. See Dunat v. ,Hurney, 297 F.2d 744, 753 

(3d Cir. 1961), on reargument (1962). 

Finally, we need not reach the issue of whether the male applicant's 

3-month detention in 1963 or the restriction on his employment 

following his release constituted past persecution because, even if it 

did, we find that asylum should be denied in the exercise of discretion. 

See Matter of Pula, 19 I&N Dec_ 467 (MA 1987). There is no evidence 

that the applicants have any family ties to the United States. 

Moreover, as noted above, there is little likelihood that the Cuban 

Government would take action against the male applicant now for the 

activities which led to his 1963 detention. Matter of Chen, supra. 

Further, the applicants lived and worked free from harm in Spain for 6 

years as lawful temporary residents with the option to become 

permanent residents of that country. Consequently, we find that the 

applicants were firmly resettled in Spain. See Matter of Soleimani, 20 

I&N Dec. 99 (BIA 1989). The applicants demonstrated no compelling 

countervailing equities which would warrant a discretionary grant of 

asylum despite their firm resettlement in a third country. Therefore, 

we will deny their asylum claim as a matter of discretion. Matter of 

Soleimani, supra; Matter of Pula, supra. 

Because the male applicant has failed to satisfy the lower burden of 

proof required for asylum, it follows that he has also failed to satisfy 

the clear probability standard of eligibility required for withholding of 

deportation. See, e.g., INS v. Cardoza-Fonseca, supra; Matter of 

Mogharrabi, supra. 

Inasmuch as the applicants have shown they are not excludable 

under section 212(a)(19) of the Act, the appeal of the immigration 

judge's finding of excludability under section 212(a)(19) of the Act will 

be sustained. Since the applicants have not met their burden of proof 

on their asylum and withholding of deportation claims, the appeal of 

the denial of those claims will be dismissed. 

ORDER: The appeal is sustained and the decision of the 

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immigration judge is reversed insofar as it finds the applicants 

excludable under section 212(a)(19) of the Immigration and Nationality Act. 

FURTHER ORDER: The appeal is dismissed and the decision of the immigration judge is affirmed insofar as it denies the 

applicants' applications for asylum and withholding of exclusion and 

deportation. 

CONCURRING OPINION: Michael J. Heilman, Board Member 

I respectfully concur. 

While I agree with the majority's ultimate conclusion regarding the 

claim of persecution, I believe that the majority's analysis is ambiguous and may be misleading. 

The applicant claims that he was persecuted and faces future 

persecution on account of his participation in Cuba in the "National 

Liberation Movement." Evidence that this organization existed is 

totally lacking from this record, and the immigration judge and the 

majority have accepted the applicant's testimony relating to the 

existence and activities of this organization at face value. According to 

the applicant's testimony, he was arrested in 1963, along with his 

father, the two of them being members of the "Organized Revolutionary Movement." They were plotting to overthrow the Cuban Government in an armed uprising. The applicant testified that he was a 

"captain" in this organization. Following his arrest, he was allegedly 

held for 3 months without trial, during which time he was supposedly 

tortured and raped. He was subsequently released and told he could 

not work at his former employment. Allegedly, his father was also 

arrested at the same time, but was sentenced to 5 years' imprisonment. 

The father died shortly after his release from prison. After the 

applicant was released, he returned to a family farm, where he raised 

various crops for sale. He was employed in this manner on his farm 

until 1983, when he left Cuba to live in Spain with his wife and 

children. 

The only other information about the applicant and the activities of 

the "National Liberation Movement," or "Organized Revolutionary 

Movement," as it is variously named in the record, is that found in the 

asylum application itself. There, in an attached supplementary statement by the applicant, the "National Liberation Movement" is 

described as an armed organization. It supposedly had a "national 

coordinator" and apparently had supporters all over Cuba. According 

to the supplementary statement, the arrest of the national coordinator 

had "far-reaching consequences as approximately 12,000 men were 

arrested for alleged participation in the conspiracy." If what the 

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Interim Decision #3162 

applicant states about this organization and the arrests is true, .one 

would think that some independent evidence of the existence of this 

organization and the events described would have been provided. 

This Board held in Matter of Dass, 20 I&N Dec. 120 (BIA 1989), 

that an applicant for asylum has the burden of proof in establishing 

eligibility for asylum. As we stated there, we did not agree that "the 

introduction of supporting evidence is purely an option with an 

asylum applicant in the ordinary case. Rather, the general rule is that 

such evidence should be presented where available." Id. at 7. We 

observed in this context that the more sweeping the claim of 

persecution, the more likely it was that corroborative evidence would 

be available. Surely, the arrest of 12,000 persons in one fell swoop in 

1963 falls within the category of verifiable events, as does the existence 

of the group whose activities form the basis for his claim. The lack of 

corroboration strikes me as a fundamental evidentiary failing. 

But even if one assumes for the sake of argument that the events 

related by the applicant did take place, it is not clear to me that a 

prima facie claim of persecution has been made. The applicant 

described his participation in a conspiracy to overthrow the Government of Cuba by force, some 2 years after the spectacular failure of the 

Bay of Pigs. It is generally understood that a conspiracy to overthrow a 

government by force is a criminal act. The record is completely silent 

on the nature and purpose of the organization in which the applicant 

participated. 

It has been this Board's position that a "legitimate and internationally recognized government" has the right to "defend itself from an 

armed rebellion." Matter of Izatula, 20 I&N Dec. 149, at 153 (BIA 

1990). We recognized an exception where citizens do not "have an 

opportunity to seek change in the political structure of the government 

via peaceful processes." Id. In that case, we considered and found 

persuasive evidence that citizens had 'neither the right nor the ability 

peacefully to change their government,"' a (quoting Committees on 

Foreign Relations and Foreign Affairs, 101st Cong., 1st Sess., Country 

Reports on Human Rights Practices for 1988 1273 (Joint Comm. Print 

1989)), and so concluded that the respondent had established that he 

was at risk of being punished for "political activities" even if those 

activities included armed rebellion. Id. 

It thus appears to me that an applicant for asylum who wishes to 

benefit from the exception outlined in Matter of Izatula, supra, must 

establish at a minimum two factors. The first thing he must do is 

establish by persuasive evidence the character of the government he 

was in rebellion against and, more particularly, the fact that citizens 

have no right to peacefully change their government. Secondly, once 

this is done, the applicant must establish the nature of his opposition 

416