Interim Decision #2315 

MATTER OF BARRAGAN-GARIBAY 

In Exclusion Proceedings 

A-20000136 

Decided by Board August 7, :1974 

The applicant was returning to the United States and presented a false Alien Registration 

Card, Form I-151. He was paroled into the United States for prosecution. He was 

thereafter convicted in a criminal proceeding for a violation of Section 275 of the 

Immigration and Nationality Act, (8 U.S.C. 1325). Sven though he was paroled into the 

United States he was prosecuted for an illegal entry. Therefore, the exclusion proceedings will be terminated because under the doctrine of collateral estoppel, the Government is prevented from denying that applicant made an entry. 

EXCLUDABLE! Act of 1952—Scetion 212(a)(2f) (8 U.S.C. 1182(a)(20)I—Immigrant with 

no valid immigrant visa and not exempt therefrom. 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE 

John McGonagle, Esquire Irving A. Appleman 

1701 Pennsylvania Avenue N.W. Appellate Trial Attorney 

Washington, D. C. 20006 

Lewis A. Wenzell, Esquire • 

325 West "F" Street 

San Diego, California 92101 

In an undated decision, the immigration judge found the applicant 

excludable as charged. The applicant has appealed from that decision. 

The appeal will be sustained, and the proceedings will be terminated. 

The applicant is a 22-year-old alien who is a native and citizen of 

Mexico. The facts arenot in dispute and are as follows. 

The applicant came to the port of entry in San Ysidro, California on 

August 26, 1972, for the purpose of entering the United States and 

returning to San Fernando, California where he had been living for 

some time. When he applied for admission he presented a false Alien 

Registration Receipt Card, Form 1-151, which he had purchased_ The 

applicant was paroled into the United States for prosecution and was 

confined in jail. 

On August 28, 1972, a complaint was issued charging the applicant 

with entering the United States on August 26, 1972 by knowingly and 

willfully presenting a counterfeit Alien Registration Receipt Card in 

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Interim Decision #2315 

violation of section 275 of the Immigration and Nationality Act (8 

U.S.C. 1325). On September 12, 1972, the applicant was convicted of 

the preceding criminal charge upon his plea of guilty. He was sentenced 

to imprisonment for 21 days and thereafter served his sentence. 

The issue on appeal is whether the applicant is properly in exclusion 

proceedings. Counsel argues that the applicant's conviction for illegal 

entry is a conclusive determination that the alien has made an "entry" 

into the United States, and that therefore the applicant is not a proper 

subject for exclusion proceedings. The Service contends that the conviction has no effect on the applicant's status as a parolee into the United 

States. It is well established that parole into the United States is not an 

"entry" for purposes of the immigration laws. Kaplan v. Tod, 267 U.S. 

228 (1925); Leng May Ma v. Barber, 357 U.S. 185 (1958). 

The term "entry" is defined in section 101(a)(18) of the Act. The 

applicant cannot be held in exclusion proceedings if he made an "entry" 

into the United States at San Ysidro on August 26, 1972, and if he has 

not departed since that date. See Matter of Farmer, 14 I. & N. Dec. 737 

(BIA 1974); Matter of Hoffman-Arvayo, 13 I. & N. Dec. 750 (BIA 1971). 

The section 101(a)(13) definition of "entry is applicable to all sections of 

the Act, and therefore is used in making determinations under the 

criminal pro visions of section 275 of the Act. Consequently, the court's 

determination that the applicant made an illegal "entry" under section 

275 of the Act, if binding in these exclusion proceedings, would require 

termination of the proceedings. 

The doctrine of collateral estoppel is derived from the doctrine of res 

judicata. According to the doctrine of collateral estoppel, when a matter 

previously litigated, and necessary to the judgment in the prior case, 

arises in the course of subsequent litigation between the same parties 

upon a different cause of action, the judgment in the prior case operates 

as an estoppel. Cromwell v. County of Sac, 94 U.S. 351, 853 (1877); Tait 

v. Western Md. Ry. Co., 289 U.S. 620, 623 (1933); Commissioner v. 

Sunnen, 383 'U.S. 591, 598 (1948); Lawlor v. National Screen Service 

Corp., 349 U.S. 322, 326 (1955). The policy basis for the doctrine of 

collateral estoppel is the interest of the public and the parties in preventing relitigation of previously determined issues. 

"Ordinarily a court decision will be res judicata in a later administrative proceeting in the same circumstances in which it would be res 

judicata in a later judicial proceeding." 2 K. Davis, Administrative Law 

Treatise, section 18.11, at 619 (1958, Supp. 1970). We have applied the 

doctrine of collateral estoppel to prevent the relitigation of issues that 

have been determined in previous court litigation between the Government and the alien. Matter ofZ—, 5 I. & N. Dec. 708 (B IA 1954); Matter 

of Campos, :13 I. & N. Dec. 148 (BIA 1969); Matter of Grandi, 13 I. & N. 

Dec. 798 (BIA 1971). The doctrine has also been applied by federal 

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Interim Decision #2315 

courts to prevent the relitigation of issues determined in previous court 

proceedings under the immigration laws. Pena-Cabanillas v. United 

States, 394 F.2d 785 (9 Cir. 1968); United States v. Rangel-Perez, 179 F. 

Supp. 619 (S.D. Cal. 1959); see Anselmo v. Hardin, 253 F.2d 165 (3 Cir. 

1958). 

In Matter of Grandi, supra, we concluded that collateral estoppel was 

applicable to exclusion proceedings. Our holding in that case was that 

the applicant was estopped from contending that he was brought to the 

United States against his will where, in criminal proceedings, a court 

had considered the same contention and had found that the applicant 

came to the United States voluntarily. 

In Title v. INS, 322 F.2d 21 (9 Cir. 1963), rev'g Matter of 7'—, 9 I. & 

N. Dec. 127 (BIA 1960), the court held that a determination of Communist Party membership in a denaturalization proceeding did not estop 

the alien from disputing such membership when the issue arose in a 

subsequent deportation hearing. We distinguished that case in Matter 

of Grandi, supra. 

Collateral estoppel is not an inflexible doctrine. It may he modified or 

rejected when its application "would contravene an overriding public 

policy or result in manifest injustice." Tiplor v. E. I. duPont 

deNemours & Co., 443 F.2d 125, 128 (6 Cir. 1971). 

In the present case, the Government brought the charge of illegal 

entry, and the court accepted the applicant's plea of guilty. As a consequence of the conviction for illegal entry, the applicant served a prison 

sentence, and he is now subject to the provision of section 275 which 

makes any subsequent conviction a felony punishable by a fine of $1,000 

or two years in prison, or both. 

We conclude that since the Government has chosen to subject the 

applicant to the serious consequences flowing from an illegal "entry" 

into the United States, the doctrine of collateral estoppel should be 

applied to prevent the Goyernment from denying the fact of such "entry" for the purposes of this exclusion proceeding. See Matter of 

Grandi, supra. There is certainly no manifest injustice in this approach, 

nor does the result violate any overriding public policy. Public policy 

would seem to favor consistency in the Government's dealings with 

individuals under the various provisions of the immigration laws. 

The appellate trial attorney has suggested that the conviction for 

illegal entry was erroneous (Oral argument, p. 14). Nevertheless, the 

Government has taken no action to have the judgment vacated and the 

charge dismissed Moreover, the sentence imposed on the applicant has 

already been executed. 

The Government had its opportunity to litigate the issue of "entry." 

We hold that it should now be bound by the court's determination that 

an "entry" into the United States was made on August 26, 1972. Con79 
Interim Decision #2315 

sequently, these exclusion proceedings are improper and will be terminated. See Mater Farmer, supra. 

ORDER: The appeal is sustained, and the proceedings are terminated. 

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