1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-24-1995

Yi Yang v Maugans

Precedential or Non-Precedential:

Docket 95-7316

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Recommended Citation

"Yi Yang v Maugans" (1995). 1995 Decisions. Paper 279.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

Nos. 95-7316, 7317, 7318, 

7319, 7320 and 7321 

 

YOU YI YANG; BONG WON YEE; GUANG FENG LI; CHU-SU CHEN; PIN LIN; 

YONG ZHONG PAN, a/k/a Pu Wing Chun; SO GEE DONG; CHANG CHUN LU; 

XIN-FEI ZHANG, a/k/a Xin-Fuei Zarang; TONG WAI ZHANG; DAI MIN LU; 

SHI CHUN ZHENG; CHUN HUA LIN; XING CHEN; SHUIDI ZHENG; 

GUO ZHEN XIE; LI YUN-YOU; MING LONG LIN; DEK FUN LIN; 

ZHONG CHEN; WANG CHAO LIN; NAN REN LIN; YENG MING LIN; 

CHAN BIN JONG; ZENG HUA ZHENG; YUNG KWON CHENG; RUI QUI HUANG; 

SHIMU CHEN; GUI LIN CHENG; REN YAN YANG; YONG ZHENG; KWAI 

SUNG CHENG; XUE KIAN CHEN; YI HONG LIN; GOU ZHI LEE; 

JIAN LE SHI; WU CHAO; XING-KWONG ZHENG, a/k/a Xing-Ke Zheng; 

XUE YAO LIN; JIAN BIN LIN; WING JONG JUNG; BIN HUA ZHENG; 

XIANG GUI CAO; ZUOXUN LEE; CHAI KAN CHENG; AI MING WANG; 

SING CHOU CHUNG; JAR JIAN WANG; HE PING CAO; ZENG-PING LUI; 

KOU ZHANG CHENG; GONG SHI; CAI WAN CHEN; YUE FENG LEE; ZHAO 

SHAN ZHAO; FEN-HOU CHEN; CHONG SHENG QU; XUE-DEE CHEN; 

MAO-JIANG LIN; WEN-HAO CHEN; JIAN FU CHAI; DE HUI CHEN; JI LI 

ZHENG; FU SING ZHENG; YE ZING CHAI; FA YU ZHUANG; SHI J ZHENG; 

ZHONG ZHOU; LIAN BING ZHENG; ZHAI YOUNG ZHU; XUE CAN ZOU; 

XYE RONG ZHAN; AU ZIA ZHAO; YUE FENG ZHANG; DA HE ZHENG; SHAN 

CIEN ZHANG; NAN WEI ZHANG; HUA YI ZHON; YE SONG; GIN GUAN WU; YEE 

JAN WONG; XIN CHANG SHANG; ZHONG WU LUO; HUSEH TA TANG; WANG WU 

DONG; YOU SHUI WANG; ZIM SHENG WHANG; SI OU; LI TUN CHENG; PAN 

SHAO MIN; YOU QUAN LIN; BI SHENG LIU; XU YONG LU; LU TIAN HAO; 

GHUAN LI LIU; RUI KAN LIN; XIANG KENG LIN; KONG ZHI LI; 

DUAN SHENG KIN; ZHON GUAN LI; JIN LIM FU; ZHE SHUNG JAIN; HYEI 

GWOR; WING-HON CHENG; DAI ZI HE; ZHI PING GAO; XIANG NMU GAO; YI 

CHENG DONG; EI YOUNG GIANG; SON SHING DONG; JIA RENG DONG; 

CHI CHI CHUNG; WOR OI CHIN; ZHU F. CHENG; SON CHING CHENG; 

GIN SEN CHENG; TIA SIAN CHEN; KAN GUAN CHEN; KAI Q. ZENG; 

GUO CHENG LIN; XIANG GUAN CAI; XIN SING ZHOU; YONG QUI CHI; YONG 

GING WU; CIAN GLUAN YONG; CHENG YE WU; MING GUANG LIU; 

CHUN LIN JIN; JAN YON CHUNG; ZHEN HUAN WENG; KANG DI WENG; 

CHENG XIAO DAI; GUO PING YE; CHANG QING ZHOU; MEI XI CHEN; JIAN 

BIAO WENG; DAR HUA WANG; FUI LIN; ZHE SHUNG JAN; ZHONG MING TIAN; 

GUAN JUN WANG; JIAN YUN WAN; JIA WEN LIU; BAO JIN LUI; ZHANG SONG 

XHONG; XIN BIN ZHENG 

v. 

GEORGE MAUGANS, District Counsel of the United States 
2 

Immigration and Naturalization Service - Baltimore 

District; DAVID L. MILHOLLEN, Director of the Executive 

Office for Immigration Review and Chairman of the Board of 

Immigration Appeals; RICHARD J. SHARKEY, District Counsel of 

the US Immigration and Naturalization Service - 

Philadelphia District; J. SCOTT BLACKMAN, District 

Director of the US Immigration and Naturalization Service - 

Philadelphia District; UNITED STATES IMMIGRATION & 

NATURALIZATION SERVICE; EXECUTIVE OFFICE FOR IMMIGRATION 

REVIEW; JANET RENO, Attorney General of the United States; 

DORIS MEISSNER, Commissioner of the US Immigration and 

Naturalization Service; MARY MAGUIRE DUNNE, Acting Director 

of the Executive Office for Immigration Review and Acting 

Chairman of the Board of Immigration Appeals 

JANET RENO, Attorney General of the United 

States; DORIS MEISSNER, Commissioner of the 

U.S. Immigration and Naturalization Service; 

GEORGE MAUGANS, District Counsel of the U.S. 

Immigration and Naturalization Service, 

Baltimore District; DAVID L. MILHOLLEN, 

Director of the Executive Office for 

Immigration Review and Chairman of the Board 

of Immigration Appeals; RICHARD J. SHARKEY, 

District Counsel of the U.S. Immigration and 

Naturalization Service, Philadelphia 

District; J. SCOTT BLACKMAN, District 

Director of the U.S. Immigration and 

Naturalization Service, Philadelphia 

District; MARY MAGUIRE DUNNE, Acting Director 

of the Executive Office for Immigration 

Review and Acting Chairman of the Board of 

Immigration Appeals, 

 

 Appellants, in 95-7316, 

95-7317, 95-7318, 95-7319, 95-7320, 95,7321 

(Appeal from matter regarding Dek Fun Lin at D.C. Cv. No. 94-59) 

(Appeal from matter regarding Shimu Chen at D.C. Cv. No. 94-192) 

(Appeal from matter regarding Chao Wu at D.C. Cv. No. 94-257) 

(Appeal from matter regarding Sing Chou Chung at D.C. Cv. 

 No. 94-435) 
3 

(Appeal from matter regarding Dar Hwa Wang at D.C. Cv. 

No. 94-560) 

(Appeal from matter regarding Zhao Shan Zhao at D.C. Cv. 

No. 94-601) 

 

On Appeal from the United States District Court for 

the Middle District of Pennsylvania 

(D.C. Civil No. 93-cv-01702) 

 

Argued: August 25, 1995 

BEFORE: GREENBERG, COWEN and SAROKIN 

Circuit Judges

(Filed October 24, l995) 

Craig T. Trebilcock 

Stock & Leader 

35 South Duke Street 

P.O. Box 5167 

York, PA 17405-5167 

Frances P. Rayer 

Pepper, Hamilton & Scheetz 

18th & Arch Streets 

3000 Two Logan Square 

Philadelphia, PA 19103-2799 

Beverly J. Points 

100 East Market Street 

York, PA 17405-7012 

Ann Carr 

156 East King Street 

Lancaster, PA 17602 

Robert S. Kitchenoff 

David H. Weinstein (ARGUED) 
4 

Weinstein, Kitchenoff, Scarlato 

 and Goldman 

1608 Walnut Street 

Suite 1400 

Philadelphia, PA 19103 

Kathleen Blanchard 

Astra Merck, Inc. 

725 Chesterbrook Boulevard 

Wayne, PA 19087-5677 

Sharon J. Phillips 

11 Park Place 

New York, New York 10007 

Kurt A. Blake 

Katherman & Heim 

345 East Market Street 

York, PA 17403 

 COUNSEL FOR APPELLEES 

 Dek Fun Lin 

 Shimu Chen 

 Chao Wu 

 Sing Chou Chung 

 Dar Hwa Wang 

 Zhao Shan Zhao 

Philemina M. Jones 

David M. McConnell 

Gary G. Grindler (ARGUED) 

United States Department 

 of Justice 

Office of Immigration Litigation 

Ben Franklin Station 

P.O. Box 878 

Washington, D.C. 20044 

 COUNSEL FOR APPELLANTS 

 

 GEORGE MAUGANS, District Counsel of 

 of the United States Immigration and 

 Naturalization Service - Baltimore District 

 DAVID L. MILHOLLEN, Director of the 

 Executive Office for Immigration Review 

 and Chairman of the Board of Immigration 
5 

 Appeals 

 RICHARD J. SHARKEY, District Counsel 

 of the United States Immigration and 

 Naturalization Service - Philadelphia District 

 J. SCOTT BLACKMAN, District Director 

 of the United States Immigration and 

 Naturalization Service - Philadelphia District 

 IMMIGRATION & NATURALIZATION SERVICE 

 EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 

 JANET RENO, United States Attorney General 

 DORIS MEISSNER, Commissioner of the 

 United States Immigration and Naturalization 

 Service 

 MARY MAGUIRE DUNNE, Acting Director of the 

 Executive Office for Immigration Review and Acting 

 Chairman of the Board of Immigration Appeals 

 

OPINION

 

COWEN, Circuit Judge. 

 This case involves the issue of whether an "entry" may 

be effected pursuant to section 101 of the Immigration and 

Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101, merely by 

encroaching upon United States territorial waters without being 

detected or pursued by authorities. Also at issue is whether the 

district court accorded the Board of Immigration Appeals' ("BIA") 

construction of section 291 of the INA, 8 U.S.C. § 1361, which is 

the statute's burden of proof provision, the deference to which 

it was entitled under the standard the Supreme Court set forth in 
6 

Chevron v. U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984). 

 The related appeals before us arise from the habeas 

corpus petitions of six citizens of the People's Republic of 

China who are currently being held for deportation by the 

Immigration and Naturalization Service ("INS"). Petitioners Sing 

Chou Chung ("Chung"), Dek Fu Lin ("Lin"), Shimu Chen ("Chen"), Wu 

Chao ("Chao"), Shan Zhoa ("Zhoa") and Dar Hwa Wang ("Wang") set 

foot upon a Rockaway, Queens beach on June 6, 1993, after having 

traveled for three months in the cargo hold of the "Golden 

Venture," an alien smuggling ship carrying over 300 passengers. 

None of the petitioners ever left the beach area and all of them 

admittedly were arrested within thirty minutes of their arrival. 

 Chung, Lin, Chen, Chao, Zhoa and Wang all had their 

legal claims adjudicated in exclusion proceedings. At their 

respective 

exclusion proceedings, the six petitioners' applications for 

asylum were denied and they were ordered excluded from the United 

States. They then filed habeas corpus petitions in the United 

States District Court for the Middle District of Pennsylvania, 

pursuant to section 106(b) of the INA, 8 U.S.C. § 1105a(b). All 

six petitioners proceeded to file motions in the district court 

for partial summary judgment on the issue of whether they had 

"entered" the United States within the meaning of the INA.1

 

1The question whether the petitioners had "entered" the United 

States is not merely a matter of semantics. Under the law, once 

an alien has "entered" the United States, that individual has 

certain rights that can be adjudicated only pursuant to a full 
7 

 On May 16, 1995, the district court held that 

petitioner Chung had "entered" the United States as a matter of 

law before he had reached dry land. Chung v. Reno, 886 F. Supp. 

1172, 1184 (M.D. Pa. 1995). As to the allocation of the burden 

of proof under section 291 of the INA, the district court further 

held that it was unreasonable for the BIA to place the burden 

upon illegal aliens to establish that they were "free from 

official restraint." Id. at 1185. On June 6, 1995, the district 

court denied the government's motion for reconsideration and 

ordered deportation proceedings to commence against Chung within 

ten days. The government was ordered to release Chung if 

deportation proceedings were not commenced within that time 

period. On June 9, 1995, based upon its decision in Chung, the 

district court ordered the government to initiate deportation 

proceedings against petitioners Lin, Chen, Chao, Zhoa and Wang. 

 

deportation hearing. However, if the individual is found in the 

United States but never "entered" within the meaning of section 

101 of the INA, the alien can be excluded through the summary 

process of an exclusion hearing. 

The government appeals the district court's orders granting 

partial summary judgment on the issue of entry in the six 

petitioners' habeas corpus actions. As the district court 

interpreted our decision in United States v. Vasilatos, 209 F.2d 

195 (3d Cir. 1954) too broadly and failed to accord the BIA's 

interpretation of the INA the required level of deference, we 

reverse. 
8 

I. 

A. 

 These cases arise from the following series of events, 

as described in the BIA's decision in Matter of G-, Int. Dec. 

3215, at 5-7 (BIA 1993). 

In the early morning hours of June 6, 1993, the "Golden Venture" 

struck a sandbar 100 to 200 yards offshore of Fort Tilden 

Military Reservation, which is located on the Rockaway Peninsula 

in the Gateway National Recreation Area in Queens, New York. The 

plight of "Golden Venture" first came to the attention of law 

enforcement officers at approximately 1:45 a.m. At that time, 

two United States Department of the Interior Park Police officers 

saw the ship, some of its passengers running on the beach and 

others attempting to swim ashore. At 1:58 a.m., the officers 

contacted the New York City Police Department ("NYPD") and other 

law enforcement agencies for assistance. 

 A formidable array of law enforcement officers soon 

arrived upon the scene. NYPD officers responded to the emergency 

call at 2:19 a.m. Soon thereafter a police cordon was set up to 

secure the beach area. Also involved in the rescue operation 

were police canine units, New York State Police helicopters 

equipped with searchlights, Coast Guard boats and helicopters and 

personnel from the New York Park Police, the Jacob Riis Park 

Police, the New York City Fire Department and the Emergency 

Medical Service. INS officials arrived at approximately 3:30 

a.m. 
9 

 Over 100 "Golden Venture" passengers remained on the 

ship to await the arrival of rescue personnel. Approximately 200 

of the passengers, however, decided to hazard the fifty-threedegree waters and high waves by attempting to swim ashore. 

Although it appears that most of the people who ultimately 

reached the beach were too exhausted to go farther, about thirty 

passengers fled into the surrounding community before the 

perimeter of the beach had been sealed off. Others were arrested 

on the beach and held in a building on Fort Tilden Military 

Reservation. The police escorted passengers who needed medical 

attention to local hospitals where, after they received 

appropriate medical treatment, were placed in the custody of the 

INS. 

 At York County Prison, exclusion hearings were brought 

against the "Golden Venture" detainees, including the six 

petitioners. At their respective exclusion proceedings, the 

petitioners provided the following accounts of their arrivals: 

Chung, Lin and Chen said that they jumped from the ship, swam 

ashore and lay down in exhaustion until they were approached by 

an officer. Chao also said that he jumped from the ship and swam 

ashore. He came up on the beach near a fence, walked about 

thirty steps, changed his clothes and waited until some officers 

took him away. Zhoa averred that he "almost walked to the 

street" before a police officer approached him approximately 

thirty minutes after his arrival on the beach. Wang stated that 

he jumped into the ocean, swam ashore, changed clothes and sat on 
10 

the beach. While on the beach he was taken away by the officers 

after being given emergency care. 

 The BIA entered a final exclusion order in each of 

petitioners' cases after concluding that the aliens had not 

proven that they made an "entry" into the United States within 

the meaning of section 101 of the INA. All six petitioners and 

many of their "Golden Venture" co-passengers also applied for 

political asylum in their exclusion hearings, alleging that they 

were being persecuted by China's one-child-to-a-family policy. 

Their applications for asylum were all rejected. Presently the 

petitioners, along with nearly half the "Golden Venture" 

passengers, are being detained at York County Prison in 

Pennsylvania. 

B.

 The BIA addressed the issue of entry in Matter of G-, 

which involved the case of petitioner Sing Chou Chung, one of the 

"Golden Venture" passengers. Applying well-established law, the 

BIA defined "entry" as requiring satisfaction of the following 

three elements: "(1) a crossing into the territorial limits of 

the United States, i.e., physical presence; (2) (a) inspection 

and admission by an immigration officer, or (b) actual and 

intentional evasion of inspection at the nearest entry point; and 

(3) freedom from official restraint." Id. at 8 (citing Correa v. 

Thornburgh, 901 F.2d 1166, 1171 (2d Cir. 1990); Matter of Patel, 

Int. Dec. 3157 (BIA 1991)). 
11 

 Since Chung landed on the beach, the BIA found that he 

had satisfied the "physical presence" requirement. The BIA also 

found that the second element of the entry test had been met 

because "the circumstances under which the Golden Venture landed, 

[Chung's] payment of money to a smuggling operation for passage 

to the United States, his lack of travel documents entitling him 

to enter this country, and his conduct once he came ashore" 

suggested that Chung intended to evade inspection at the nearest 

entry point. Matter of G-, Int. Dec. 135, at 13. 

 The determinative factor was whether Chung had 

satisfied the third element of the entry test, i.e., whether he 

was ever "free from official restraint." The BIA interpreted 

section 291 of the INA as placing the burden upon the "Golden 

Venture" aliens to establish that they were free from official 

restraint. The BIA recognized that "in cases where there is no 

clear evidence of the facts determinative of the entry issue, 

those cases ultimately must be resolved on where the burden of 

proof lies." Id. at 11. The BIA held that Chung did not "enter" 

the United States because he had failed to meet this burden. Id.

at 14-15. 

C.

 Over 100 of the detainees, including the petitioners, 

filed habeas corpus petitions in the United States District Court 

for the Middle District of Pennsylvania, pursuant to section 

106(b) of the INA, 8 U.S.C. § 1105a(b). As these petitions 

presented similar issues, the district court consolidated them 
12 

under the caption Yang You Yi v. Maugans, No. 93-1702. The 

consolidation order, entered on November 15, 1993, consolidated 

"for all purposes" current and future habeas corpus petitions 

from the "Golden Venture" passengers detained at York County 

Prison. 

 After the district court's consolidation order had been 

entered, the six petitioners filed individual motions for partial 

summary judgment on the issue of whether they had effected an 

"entry" into the United States. On May 16, 1995, the district 

court granted petitioner Chung's motion for partial summary 

judgment, holding that he had entered the United States within 

the meaning of the INA. Chung v. Reno, 886 F. Supp. at 1185. The 

district court concluded that the BIA had applied the governing 

immigration law incorrectly in two areas. First, the court 

rejected the BIA's conclusion that all three elements necessary 

to establish that an entry into the United States has occurred 

must be satisfied while the alien is on "dry land." Id. at 1179. 

The district court interpreted our decision in United States v. 

Vasilatos, 209 F.2d 195 (3d Cir. 1954), as binding authority, 

which led it to conclude that Chung had satisfied all three 

elements of the entry test before he reached dry land. Chung, 886 

F. Supp. at 1184. 

 The district court further held that the burden of 

proof had not_!