Interim Decision #2660 

MATTER OF ARTHUR 

In Exclusion Proceedings 

A-15574761 

Decided by Board August 23, 1978 

(1) 'Where smuggled aliens gave applicant for admission $200 to "get papers," in addition to 

money for gas, and applicant was making the trip for his own reasons in any event. finding 

that the applicant was smuggling aliens for "gain" in violation of section 212(a)(31) 8 

U.S.C. 1182(a)(31) was warranted [Ribeiro v. INS, 531 F.2d 179 (3 Cir. 1976) distinguished]. 

(2) Immigration judge properly found that the standard of proof formulated by the 

Supreme Court of the United States in Woodbrli v. INS, 385 U.S. 276 (1966), does not 

apply to exclusion proceedings. 

EXCLUDABLE: Act 01 1952-6ection 2r2(a)(31), 1. & N. Act [8 1182(a)(31)]-- 

Smuggling for gain 

ON BEHALF OF APPLICANT: Timothy S. Barker, Esquire 

Legal Aid Society of San Diego, Inc. 

1760 North Euclid Avenue 

San Diego, California 92105 

BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members 

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

021 June 26, 1978 ordering that the applicant be excluded and deported 

from the United States. The appeal will be dismissed. 

The applicant is a married native and citizen of Panama, age 27, who 

was admitted to the United States in March, 1975 upon his knowingly 

false representation that he was a crewman stationed aboard a ship 

azehored off the coast of this country.. The applicant failed to depart 

within his authorized period of time not to exceed 29 days, but rather 

1'4m-twined here and married a United States citizen in August, 1975. 

During a visit to Panama in early 1978, the applicant arranged to 

illegally transport certain aliens into the United States in return for 

their payment of travel expenses and certain other remuneration. The 

applicant's clandestine efforts failed and he was apprehended and 

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

Immigration and Nationality Act, 8 U.S.C. 1182(d)(5), as amended. On 

June 2, 1.978, the applicant was convicted in the United States District 

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Interim Decision #2660 

Court for the Southern District of California, upon his plea of guilty to 

violations of 18 U.S.C. 371 and 8 U.S.C. 1325. At the applicant's 

exclusion hearing, it was contended inter alia, that the Service had failed 

to establish its standard of proof by clear, convincing, and unequivocal 

evidence. 

The immigration judge found that the amounts received by the applicant from the aliens, en route from Panama to the United States, did 

constitute "gain" as that term is used in section 212(a)(31) of the Act. 

The immigration judge further found that the applicant's reliance upon 

the decision in Woodby v. INS, 385 U.S. 276 (196 6) was not well-placed 

since, as the Board has pointed out in Matter of Moore, 13 I. & N. Dec. 

711 (BIA 1971), the standard formulated in Woodby, supra, "applies 

only to deportation proceedings." 

We agree. Upon review of the record, including the contentions of the 

applicant in his brief on appeal, we conclude that the decision of the 

immigration judge was correct. Section 212(a)(31) of the Act specifically 

includes among those classes of aliens who shall be ineligible to receive 

visas and shall be excluded from admission into the United States "Any 

alien who at any time shall have, knowingly and for gain, encouraged, 

induced, assisted, abetted, or aided any other alien to enter or to try to 

enter the United States in violation of law." The applicant clearly comes 

within the purview of this provision of the statute. 

In .Uibeiro v. INS, 531 F.2d 179 (3 Cir.. 1976), a case relied upon by 

counsel, the court held that $50.00 of the total amount that the alien was to 

be paid for transporting other aliens from Montreal into the United 

States might have been reimbursement for expenses incurred over and 

above his initial cash outlay of $100 and was not satisfactory evidence that 

he had acted "for gain." The court stated that a common sense 

interpretation of the phrase "for gain" requires the prospect of an excess 

of tangible return over expenditure in a particular transaction. In the 

instant case, we have testimony by passenger Granville PowellThompson that he gave the applicant approximately $200 in advance to 

enable the latter to get his papers at the American Embassy in Panama 

(Tr. pp. 47, 52, 58). Thompson's brother testified in a like manner (Tr. 

pp. 62, 68, '73) and their testimony was found credible by the immigration judge_ Although counsel acknowledged the abOve testimony of the 

brothers concerning their financial assistance in gaining the entry 

documents (Brief p. 8), the applicant alleged that he received money 

only for gas from the Thompson brothers in Panama (Tr. p. 112). The 

immigration judge found that the applicant's memory was faulty. 

This case is distinguishable from Ribeiro, where the alien went out of 

his way to deliver his passengers to the destination of their selection.. 

Here, the applicant wanted to go to the United States from Panama for 

his own reasons; an immigrant visa had been issued to him. Under such 

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Interim Decision #2660 

circumstances said the court in Ribeiro, an expectation of "gain" from 

the collection of money for gasoline could reasonably be found. 531 F.2d 

at 180. 

Under the provisions of section 291 of the Act, the burden of proof is 

upon an applicant for admission to establish that he is not subject to 

exclusion. We have held that this burden never shifts, but is always on 

the applicant, Matter of Rive.ro-Diaz, 12 I. & N. Dec. 475 (BIA 1967). In 

the circumstances of this case, exclusion proceedings were proper. We 

conclude that the decision of the immigration judge should be affirmed. 

ORDER: The appeal is dismissed. 

560