Interim Decision #3215 

MATTER OF Gin Exclusion Proceedings 

A-72761974 

Decided by Board December 8, 1 993 

(1) An alien with no colorable claim to lawful permanent resident status is properly in 

exclusion proceedings where he fails to satisfy his burden of proof that he has effected 

an "entry" into the United States. Matter of Z-, 20,MN Dec. 707 (BIA 1993), 

followed. 

(2) The determination of whether an alien has effected an entry into the United States is 

a matter appropriately litigated in exclusion proceedings. 

(3) For purposes of section 101(a)(13) of the Immigration and Nationality Act, 8 U.S.C. 

§ 110 I(a)(13) (1988), an "entry" into the United States requires: (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 

inspculiun at the nearest inspection point; and (3) freedom from official restraint. 

Matter of Z -, supra, followed. 

(4) The mere crossing into the territorial waters of the United States, whether detected or 

undetected, has never been held to constitute "physical presence" in this country "free 

from official restraint." 

(5) The grounding of a vessel 100 or more yards off shore with its passengers facing a 

hazardous journey to land does not of itself constitute an entry into the United States. 

(6) In the case of the Golden Venture, an alien will be found to have been "free from 

official restraint" if he establishes that he was among the first of the ship's occupants 

to reach the shore, that he landed on a deserted beach, or that he managed to flee into 

a neighboring community. 

(7) In contrast, an alien who was escorted off the Golden Venture, pulled from the water 

by rescue personnel, or who landed in the cordoned-off area of the beach after it was 

secured will not be found to have been "free from official restraint," as his movements 

were restricted to the immediate vicinity of the beach that was cordoned-off and 

controlled by the enforcement officers of the various governmental organizations 

present at the site to prevent the ship's occupants from absconding. 

(8) In a case where there is no clear evidence of the facts determinative of the entry issue, 

the case ultimately must be resolved on where the burden of proof lies. 

(9) Where there is no evidence that an alien, who arrives at other than the nearest 

inspection point, deliberately surrenders himself to the authorities for immigration 

processing, or that, once ashore, he seeks them out, voluntarily awaits their arrival, or 

otherwise acts consistently with a desire to submit himself for immigration inspection, 

actual and intentional evasion of inspection at the nearest inspection point may be 

found. 

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Interim Decision #3215 

(10) Pending a decision of the Attorney General on asylum and withholding of 

deportation claims premised on coercive family planning policies of another country, 

the Board will continue to follow Matter of Chang, 20 I&N Dec. 38 (BIA 1988), as 

precedent in all proceedings involving the same issues. 

(i t) To prevail on a claim that "extrajudicial" sources compromised the impartial and 

unbiased nature of an exclusion proceeding, an alien must show how the immigration 

judge's decision was affected or how he was prejudiced by these "outside influences." 

EXCLUDABLE: Act of 1952—Sec. 212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(1)1— 

No valid immigrant visa 

Sec. 212(a)(7)(B)(i)(I) [8 U.S.C. § 1182(a)(7)(B)(i)(I)1— 

Nonimmigrant without valid passport 

Sec. 212(aX7)03)(i)(11) [8 U.S.C. § 1182(a)(7)(B) 

(i)(II)j—No valid nonimmigrant visa or border crossing card 

ON BEHALF OF APPLICANT: 

Timothy J. Shultis, Esquire 

Crabbs & Frey 

14 Center Square 

Hanover, Pennsylvania 17331 

ON BEHALF OF SERVICE: 

Jack Pence 

Regional Counsel 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

On August 17, 1993, an immigration judge denied the applicant's 

motion to terminate the instant exclusion proceedings, found him 

excludable as charged on the basis of his admissions, and denied his 

applications for asylum and withholding of deportation. The applicant 

has appealed. The appeal will be dismissed and the request for oral 

argument before this Board is denied. fi § 3.1(e) (1993). 

The applicant is a 29-year-old married, male native and citizen of 

the People's Republic of China, who attempted to enter the United 

States on June 6, 1993. The applicant was taken into custody by the 

Immigration and Naturalization Service and detained for exclusion 

proceedings. He was charged as an excludable alien under sections 

212(a)(7)(A)(i)(I), (B)(i)(I), and (B)(i)(II) of the Immigration and 

Nationality Act, 8 U.S.C. §§ 1182(a)(7)(A)(1)(I), (B)(i)(I), and (B)(i)(II) 

(Supp. IV 1992). 

At the ensuing hearing, the applicant moved for termination of the 

exclusion proceedings. Arguing that an entry into the United States 

had been made within the meaning of section 101(a)(13) of the Act, 8 

U.S.C. § 1101(a)(13) (1988), he provided a testimonial account of his 

arrival into the United States and several newspaper articles describing 

the events of the early morning hours of June 6, 1993. The Service 

objected to the motion and countered with its own evidence of the 

events of that morning in the form of a Service examiner's "Memo to 

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Interim Decision #3215 

File" and an affidavit of its Special Agent, Sal Alosi. The immigration 

judge denied the applicant's motion and proceeded to hear testimony 

on his applications for asylum and withholding of deportation. 

Ultimately, the immigration judge found the applicant excludable as 

charged on the basis of his concessions and denied his applications for 

the requested forms of relief. This appeal followed. 

The applicant's first challenge on appeal concerns the propriety of 

these exclusion proceedings. 

To determine whether the instant proceedings brought under 

section 236 of the Act, 8 U.S.C. § 1226 (1988 & Supp. IV 1992), are 

proper, we must first resolve the issue of whether the applicant 

"entered" the United States within the meaning of section 101(0(13) 

of the Act, for if an "entry" occurred, the question of the applicant's 

continued presence here may only be adjudicated in deportation 

proceedings commenced under section 242(b) of the Act, 8 U.S.C. 

§ 1252(b) (Supp. W 1992).' 

GENERAL FACTS OF SHIP'S ARRIVAL 

The record reflects the applicant arrived in the United States on 

Sunday, June 6, 1993, aboard a cargo freighter named the Golden 

Venture. The applicant was one of a cargo of some 300 passengers 

when the vessel, piloted by a crew of 13 Indonesian nationals, ran 

aground on a sandbar off the coast of New York. The grounding took 

place 100 to 200 yards offshore of the Fort Tilden military reservation 

located on the Rockaway Peninsula in the Gateway National Recreation Area of Queens, New York. 

According to the record, at about 1:45 a.m. on that Sunday, two 

officers of the United States Department of Interior Park Police were 

patrolling the Gateway National Recreation Area when they observed 

the distressed ship and a number of its passengers swimming in the 

water or running on the beach. The officers spotted life preservers 

bobbing in the water and heard people yelling. 2At 1:58 a.m., the 

officers placed an emergency call for help to the New York City Police 

Department and other authorities and then proceeded to assist several 

of the ship's passengers out of the water. 

The Coast Guard dispatched boats and helicopters to the scene of 

'Deportation and exclusion proceedings are mutually exclusive methods of removing 

an alien from the United States. Sections 236 and 242(b) of the Act; Lang May Ma v. 

Barber, 357 U.S. 185, 187 (1958). However, the question of whether an alien has 

effected an entry is appropriately litigated in exclusion proceedings. Landon v. Plasencia, 

459 U.S. 21. 31 (1982). 

2The record indicates the Coast Guard had been monitoring the ship the previous 

night as it neared the coast. When vessels were dispatched to intercept it, however, the 

ship disappeared. 

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Interim Decision #3215 

the reported shipwreck to observe and rescue persons aboard the 

disabled vessel. 

At 2:19 a.m., officers from the New York City Police Department 

arrived on the beach at Fort Tilden; 2 minutes later, the New York 

City Fire Department was alerted. Police canine units and New York 

State police helicopters equipped with searchlights also were deployed 

to search for passengers on shore or still in the water. Officers from the 

various law enforcement agencies involved —the New York City 

Police Department, the Park Police, the Jacob Riis Park Police, and 

the Coast Guard—waded into the harbor to assist people to shore. 

During these early morning hours, a portion of the Fort Tilden 

beach—about 1/4- to 1/2-mile-long and extending 600 yards inland 

from the water line—was ultimately cordoned off and controlled by 

enforcement officers of these various organizations to prevent passengers who reached shore from leaving the area. 

According to newspaper accounts of several passengers interviewed, 

pandemonium erupted on board when the ship grounded. Passengers 

began spewing out of the cargo hold of the ship, where they had been 

forced to stay during their 3-month-long voyage. They crowded the 

ship's deck, only to be told by the ship's crew to jump overboard. 

Over the next several hours as rescue personnel assembled in the 

area, about 200 passengers fled the ship by leaping blindly into the surf 

or descending a ladder on the side of the boat. Ignoring police and 

Coast Guard pleas to remain on the vessel, many swam and waded to 

shore clutching plastic bags of belongings while others used plastic jugs 

as makeshift floats. 

An armada of small vessels, rafts, and cutters fished many of these 

200 out of the • 53-degree waters and brought them to shore. 3Other 

passengers managed to reach dry land on their own only to be 

apprehended on the beach or within the perimeter of the cordoned-off 

area. Many of the ship's occupants who swam to shore suffered from 

hypothermia and simply collapsed on reaching the beach. A few, 

however, eluded capture by fleeing through the thick-brushed dunes 

into the surrounding neighborhoods. Several of these survivors were 

reported seen knocking on the doors of homes in several nearby 

communities, offering money in exchange for the use of a telephone. 

Three men, for example, were found in a construction site in the 

neighboring town of Breezy Point after having offered a resident $100 

to use his telephone. Local police later apprehended 26 other men near 

a shopping center in the town of Huntington Beach after receiving an 

3The Coast Guard recovered the bodies of four passengers who had drowned in the 

choppy waters. Three other passengers plucked from the 53-degree waters died later. 

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Interim Decision #3215 

anonymous telephone call that several Asian men were seen leaving a 

tan van. 

More than 100 passengers, however, remained on board and 

awaited the arrival of rescue personnel. 

In an effort to detain those passengers apprehended, a building in 

the Fort Tilden military reservation was used to house passengers not 

in need of medical treatment; these individuals were subsequently 

transferred to detention facilities for immigration processing. Police 

escorted about 30 other passengers to local hospitals for treatment; 

these passengers were later released to the immigration authorities. 

By 3:30 a.m., when the first immigration officials arrived, 200 to 

300 rescue personnel were at the scene. Swimmers were still being 

pulled from the water and passengers were still being rescued from the 

boat. 

Understandably under the circumstances, no attempt was made to 

differentiate and keep track of those persons rescued from the deck of 

the Golden Venture, plucked from the water, intercepted within the 

cordoned-off area, or taken to medical facilities. Immigration officials 

processed all detainees as one large group. 

By the evening of June 6, 1993, 273 of the 300 passengers reported 

to have been aboard the vessel had been accounted for while some 30 

remained at large. Law enforcement authorities took the captain of the 

freighter and his crew of 12 off the ship and arrested them pending 

criminal prosecution on smuggling charges. 4 

THE ISSUE OF ENTRY 

In relevant part, an "entry" for immigration purposes is defined as 

"any coming of an alien into the United States, from a foreign port or 

place or from an outlying possession, whether voluntary or otherwise." 

Section 101(a)(13) of the Act. Over time, caselaw has led to the 

formulation of a more precise definition of that term, requiring: (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 

inspection point; and (3) freedom from official restraint. Matter of 

Patel, 20 I&N Dec. 368 (BIA 1991), and cases cited therein; see also 

Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d Cir. 1990). 

The definitional "entry" requirements at issue in this case are those 

of evasion of inspection and freedom from official restraint. It is this 

4According to newspaper accounts, the Golden Venture sailed from Thailand with its 

cargo of illegal Cninese immigrants as part of an elaborate multimillion-dollar smuggling 

operation. Many passengers paid more than $20,000 or agreed to pay off a portion of the 

fee by agreeing to be indentured servants in this country. 

768 
Interim Decision #3215 

latter requirement, however, which is the principal focus of the parties 

on appeal. 

Regarding the requirement of freedom from official restraint, we 

note at the outset that, in circumstances such as those now before us, 

there can be no certainty as to when and under what precise 

circumstances during those few critical hours immediately following 

the Golden Venture's grounding each and every individual alien landed 

on shore. Viewing the situation in its totality, however, it is clear that 

some passengers of the Golden Venture arrived in the United States 

free from official restraint, while others did not. See United States v. 

Vasilatos, 209 F.2d 195, 197 (3d Cir. 1954); United States v. 

Lazarescu, 1Q4 F. Supp. 771, 777 (D. Md.), affd, 199 F.2d 898, 900 

(4th Cir. 1952); In re Dubbiosi, 191 F. Supp. 65, 66 (E.D. Va. 1961). 

For example, although the exact number may never be known, 

several of the ship's occupants, presumably the first to jump ship, did 

reach dry land before the vessel was spotted by the two Park Police 

officers who first observed the disabled ship at 1:45 a.m. According to 

the record, the officers witnessed "numerous" individuals running "to 

avoid detection." These passengers were clearly free from any official 

restraint. Similarly, other evidence in the record suggests that several 

passengers were found, possibly hours later, in neighboring communities. These aliens were not only free from any restraint, but were in fact 

mixing with the general population. See, e.g., United States v. MartinPlasencia, 532 F.2d 1316 (9th Cir.), cert. denied, 429 U.S. 894 (1976) 

(finding that an alien at a port of entry effected an entry when he 

evaded inspectors and fled 50 yards into San Ysidro, California); 

Cheng v. //TS, 534 F.2d 1018, 1019 (2d Cir. 1976); Matter of Z-, 20 

I&N Dec. 707 (BIA 1993) (finding that an alien who debarks from his 

vessel at a place not designated as a port of entry effected an entry 

when he fled into the interior undetected with every apparent 

intention of evading immigration inspection). 

In contrast, for those 100 or more passengers who were escorted off 

the ship—as well as the many others who were pulled from the water 

by rescue personnel or who landed in the cordoned-off area after it was 

secured—we would not find that their physical presence here was 

coupled with "freedom from official restraint." The movements of 

these aliens were restricted to the immediate vicinity of the beach 

cordoned-off by the scores of law enforcement personnel at the scene. 

These aliens were never free to leave the area. They were never at 

liberty in the United States, and, under these circumstances, clearly 

lacked the freedom to go at large and mix with the general population. 

See Correa v. Thornburgh, supra, at 1172 (defining "freedom from 

official restraint" as freedom from constraint emanating from the 

government that would otherwise prevent the alien from physically 

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Interim Decision #3215 

passing on); Matter of Pierre, 14 I&N Dec. 467, 469 (BIA 1973) 

(quoting Ex parte Chow Chok, 161 F. 627, 629-30, 632 

(C.C.N.D.N.Y.), affd, 163 F. 1021 (C.C.A. 2 1908)); Edmond v. 

Nelson, 575 F. Supp. 532, 535 (E.D. La. 1983); Matter of Yam, 16 I&N 

Dec. 535, 536-37 (BIA 1978) (finding no entry to have been effected 

where alien found at border and taken under police guard to a medical 

facility).5 

Thus, some passengers of the Golden Venture were clearly in this 

country free from official restraint, while others were not. However, in 

circumstances such as those which occurred on the morning of June 6, 

1993, the facts of each individual case may never be clearly determinable for various reasons. For one, it could never be definitively 

established at what precise point the cordoned-off area of the beach at 

Fort Tilden was finally secured. Secondly, even if that time theoretically could be established, e.g. at 3:49 a m , many aliens — even if 

testifying fully and truthfully—would not know exactly when they 

reached shore. Finally, particularly where saving lives was the primary 

concern of the government officials on the scene, one would not expect 

those officials to be recording specific data on the identities of each 

passenger or on the times when and circumstances under which each 

was taken into custody. Indeed, in many cases, particularly those 

involving aliens who managed to swim to shore, there likely will never 

be any certainty as to exactly when and under what circumstances they 

made it onto the beach. 

If aliens can establish the specific circumstances of their arrivals, 

their cases can be resolved on the facts. For example, if an alien can 

show that he was one of the first passengers to disembark the ship and 

reach shore, or that he managed to arrive at a neighboring town, 

freedom from official restraint would be found. 

On the other hand, 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. Accordingly, since it is the 

alien, with a limited exception not relevant here, 6who bears the 

5 Similar cases can be found involving Haitians who arrived by private or makeshift 

boats at uncontrolled beaches having no immigration inspection facilities in southern 

Florida, made their way on land, and, shortly thereafter, were taken into official custody 

and ultimately processed in exclusion proceedings. See, e.g., Bertrand v. Sava, 684 F.2d 

204 (2d Cir. 1982). We also note that it has never been held that the mere crossing into 

the territorial waters of the United States, whether detected or undetected, constitutes 

"physical presence" in this country "free from restraint." Nor would we find that the 

grounding of a vessel 100 or more yards off shore with passengers facing a hazardous 

(indeed, fatal for some) journey to land in itself constitutes an entry into this country. 

6 In exclusion proceedings involving an alien having a colorable claim to lawful 

permanent resident status, it is the Service who bears the burden of proving that the 

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Interim Decision #3215 

burden of showing that exclusion proceedings are improper, it is he 

who must prove that his arrival on land constituted an "entry" into the 

United States within the scope of section 101(a)(13) of the Act. Section 

291 of the Act, 8 U.S.C. § 1361; Matter of Z-, supra, at 710; Matter of 

Matelot, 18 I&N Dec. 334, 335 (BIA 1982); Matter of De La Nues, 18 

I&N Dec. 140, 144 (BIA 1981); Matter of Healy and Goodchild, 17 

I&N Dec. 22, 26 (BIA 1979); Matter of Pierre, supra, at 468.7 

Turning to the case at hand, we note that, in support of his motion 

to terminate proceedings, the applicant testified that he was in (what 

appears to have been) the cargo hold of the ship when the vessel ran 

aground. According to the applicant, he made his way to the deck of 

the ship and was told by those in the front to jump. He did so and 

swam to shore clutching a plastic bag containing his personal 

belongings. He admittedly did mot know how long he was in the water, 

but found himself cold and dizzy as he reached the shore. 

Once on the beach, he quickly changed his clothes and went 

searching for a road in the dark. He did not recall being chased. He 

recounted having passed two roadways, but could not explain how far 

from the beach he had walked or in what direction he was walking 

when apprehended. He did not testify with any clarity as to any of the 

time frames involved. All he was certain of was that he was in New 

York. As he entered what he described as a "forest," he encountered 

two police officers who escorted him back to the beach and instructed 

him to lie on his stomach. 8Eventually, the Service took the applicant 

into custody and detained him for exclusion proceedings. The 

applicant paid a down payment of 3,000 yuan for this voyage to the 

United States. 

On appeal, the applicant argues that his testimony coupled with the 

circumstances surrounding his landing far from any inspection facility 

conclusively demonstrate that he had no intention of submitting 

alien should be deprived of that status. Matter of Z-, supra, at 710; Matter of Salazar, 17 

I&N Dec. 167, 169 (BIA 1979); Matter of Kane, 15 I&N Dec. 258, 264 (BIA 1975). 

7 1n In re Phelisna, 551 F. Supp. 960 (E.D.N.Y. 1982), appeal dismissed, 729 F.2d 

1444 (2e1 19A1), the United States District Court for the Eastern District of New 

York held that the burden of establishing that an alien had no intent to evade inspection 

and thus made no "entry" rested with the Government That holding has never been 

adopted by a higher court, is not controlling authority in this circuit, and is not binding 

precedent on this Board. See State of Ga. Dep't of Medical Assist. v. Bowen, 846 F.2d 

708, 710 (11th Cir. 1988); Starbuck v. City & Cty. of San Francisco, 556 F.2d 450, 457 

(9th Cir. 1977); Matter of K-S-, 20 I&N Dec. 715 (BIA 1993); Matter of Cerna, 20 I&N 

Dec. 399 (BIA 1991), affd, 979 F.2d 212 (11th Cir. 1992). 

RThis testimony varies somewhat from the applicant's written account of that 

morning. In a statement attached to his motion to terminate, the applicant wrote that he 

crossed a road and a grassy field, and then came upon a second road, when he was 

spotted by two policemen and apprehended. 

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Interim Decision #3215 

himself to the immigration authorities for inspection, thus proving 

that he actually and intentionally evaded inspection at the nearest 

inspection point. 

We observe that nowhere in the record is there evidence suggesting 

that the applicant deliberately surrendered himself to the authorities 

for immigration processing, or that, once ashore, he sought them out, 

voluntarily awaited their arrival, or otherwise acted consistently with a 

desire to submit himself for immigration inspection. In fact, given the 

circumstances under which the Golden Venture landed,9the applicant'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, we find that the requisite intent 

to evade can be sufficiently gleaned from the record. See Cheng v. INS, 

supra, at 1019 (crossing the border from Canada in a smuggler's van at 

night without headlights, and turning away from the nearest inspection 

station, provided "overwhelming" evidence of actual and intentional 

evasion of inspection); Matter of Estrada-Betancourt, 12 I&N Dec. 

191, 194 (111A 1967) (finding evasion where aliens arriving at other 

than a designated port proceed 10 miles inland with intention of 

presenting themselves for inspection at other than the nearest inspection point); see also United States ex rel. Giacone V. Corsi, 64 F.2d 18 

(2d Cir. 1933). See generally Thack v. Zurbrick, 51 F.2d 634, 635-36 

(6th Cir. 1931); but cf. Pierre v. Rivkind, 643 F. Supp. 669 (S.D. Fla. 

1986), rev'd on other grounds, 825 Fid 1501 (11th Cir. 1987) (finding 

no evasion where alien arriving by boat walks away from the vessel 

and hides in a heavily-wooded mangrove area but later surrenders 

herself to the authorities).'° As to the second requirement—freedom 

from official restraint—the applicant points out on appeal that some 

passengers did manage to make their way into neighboring towns, 

thereby proving he too was "free from official restraint." 

As noted above, the applicant is correct in his assertion that several 

passengers from the Golden Venture were found in nearby communities. However, the applicant does not allege nor can we find any 

9The vessel did not arrive at an inspection station, nor did the captain and crew 

restrict the passengers to the ship pending immigration clearance once the ship 

grounded. As the evidence reflects, the crew unlocked the cargo hold and apparently 

encouraged the 300 or so passengers to jump and flee. Although it is unclear on this 

record whether the grounding was an accident or a deliberate act calculated to lessen the 

odds of the illegal off-loading being detected, the captain placed no distress call when the 

boat ran aground and many immigrants carried their belongings in plastic bags as if 

prepared for a swim. 

10In Matter of Z., supra, at 711-12, this Board recently held that an alien's intent in 

this context may be established absent a statement by the alien and even in the face of 

his contrary testimony. 

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Interim Decision #3215 

evidence to suggest that he was one of those passengers. In this regard, 

it is incumbent upon the applicant to prove that his physical presence 

in the United States was coupled with "freedom from official 

restraint." Section 101(0(13) of the Act; Matter of Z-, supra. From the 

applicant's testimony, however, it is not clear where in the continuum 

of events on the morning of June 6, 1993, he actually reached shore. 

No evidence was presented suggesting that he was one of the first 

passengers to reach dry land or that the beach was deserted when he 

landed, from which one might conclude that he was free from official 

restraint. We note that he did not have a watch and could not explain 

how long he was in the water or how many minutes passed before he 

was caught. He admittedly did not know where he was when he was 

apprehended, in what direction he was walking, or how far from the 

beach he had travelled. Consequently, we do not find that the 

applicant has presented clear evidence that he was ever free from 

official restraint. As such, we do not find that he has met the burden, 

which he alone must bear, of demonstrating that he made an entry into 

the United States. Accordingly, we find that these exclusion proceedings are proper." 

ASYLUM AND WITHHOLDING OF DEPORTATION 

The applicant has requested relief from exclusion by way of asylum 

and withholding of deportation. In support of his applications, the 

applicant testified that he fled China because he violated that 

country's mandatory family planning policies—with which he disagrees—by having more than one child. He claims that he fled China 

to escape persecution stemming from these policies and fears that he 

would be jailed, fined, and sterilized upon his return. 

The record reveals the applicant is a stone cutter by profession and 

a father of two from the city of Fuzhou, Fujian province, China. The 

applicant's problems with the Chinese Government began in October 

1990 when the local family planning authorities fitted his wife with an 

I I Counsel for the applicant represents in his appeal brief that an ongoing human 

salvage operation was underway bum in the water and on the beach when the applicant 

was swimming to shore. These assertions, however, are not based on counsel's personal 

knowledge and have never been corroborated personally by the applicant. See Matter of 

Ramirez-Sanchez, 17 MN Dec. 503, 505 (BIA 1980). 

The applicant also advances the claim that the humanitarian efforts of the governmental 

authorities on June 6, 1993, should not be construed as "official restraint." No legal 

authority has been cited in support of this contention; nor are we inclined to agree with 

the applicant in the face of clear evidence in the record of the efforts undertaken by these 

officials to prevent the passengers of the Golden Venture from leaving the Fort Tilden 

area. See Correa v. Thornburgh, supra, at 1172; Edmond v. Nelson, supra, at 535; Matter 

of Yam, supra, at 536-37 (BIA 197B) (involving alien found at border and taken under 

guard by local police to a medical facility). 

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Interim Decision #3215 

intrauterine device after the birth of their first child (a son). To 

monitor the couple's use of contraception, the authorities conducted 

monthly physical examinations of the applicant's wife and furnished 

the applicant and his wife with a record book in which the province's 

mandatory birth control policies and related penalties were set forth. 

Around March 1992, the applicant's wife became pregnant with 

their second child. To conceal the pregnancy from the authorities, the 

applicant and his family left their house and resided in other parts of 

the city. 12In their absence, the authorities appropriated their possessions and interrogated the applicant's parents. When his parents 

feigned ignorance about the applicant's whereabouts, the authorities 

threatened his parents with imprisonment and destroyed their home, 

thereby forcing them to flee the city. Fearful of further retribution for 

having more than one child, the applicant left China in February 1993, 

leaving behind his wife and two children. 

To prove that his fears of punishment are well founded, the 

applicant recounted that his underage cousin suffered a forced 

abortion when she was 7 months pregnant with her second child. In 

addition, his sister incurred heavy fines after the births of three of her 

four children, and her house was destroyed when she was unable to pay 

the fines in full. 

In a letter the applicant recently received from China, his wife wrote 

that the birth control authorities have fined him RMB 11,300 and are 

requiring her to undergo sterilization. She went on to explain that, 

until these demands are met, the authorities will not allow her to 

register the birth of their second child with the civil registrar. His wife 

included with her letter a photograph of herself and their two children; 

a copy of the family's household registration book; and a notice 

purportedly issued by the In-Shih Village Committee informing the 

applicant that he was being fined for violating China's family planning 

policies." 

The applicant also furnished for the record voluminous background 

material about China's coercive family planning policies, including a 

"Master Exhibit" prepared by the Nationalities Service Center on 

behalf of the applicant and other former passengers of the Golden 

Venture." 

12The applicant's wife moved to an aunt's home; the applicant frequently relocated 

until he was able to leave China 11 months later. 

13 Although not an issue on appeal, this Board notes that the notice from the In-Shih 

Village Committee was not certified in accordance with 8 C.F.R. § 287.6 (1993). See 

Matter of Bader, 17 I&N Dec. 325, 326 (CIA 1980). 

"The "Master Exhibit" was admitted into evidence by the immigration court sitting 

in Baltimore, Maryland, but not included in the record of proceedings as a matter of 

convenience for the parties. 

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Interim Decision #3215 

As required by 8 C.F.R. § 208.11 (1993), a copy of the applicant's 

Request for Asylum in the United States (Form 1-589) was forwarded 

for comment to the Bureau of Human Rights and Humanitarian 

Affairs of the Department of State ("BHRHA"). The BHRHA 

responded in August 1993 with a report entitled "Asylum Claims 

Relating to Family Planning in Fujian Province, China." 

Based- on this evidence and our precedent decision in Matter of 

Chang, 20 I&N Dec. 38 (BIA 1988), the immigration judge determined 

that the applicant was not eligible for asylum or withholding of 

deportation. In denying the applicant relief, the immigration judge 

found that the applicant had failed to demonstrate that China's one 

couple, one child policy was applied to him for persecutory motives as 

required by Chang. 

On appeal, the applicant has raised several challenges to this denial 

of discretionary relief. The Center for Reproductive Law & Policy has 

likewise filed an amicus curiae brief in support of the appeal. 

First, the applicant complains that the immigration judge wrongfully decided his case under Matter of Chang, supra. He argues that the 

holding in Chang has been implicitly overruled by the following: (1) an. 

August 5, 1988, memorandum of the Attorney General to the 

Commissioner of the Service directing all "INS asylum adjudicators" 

to give "careful consideration" to applications from Chinese nationals 

who refused to abort a pregnancy or resisted sterilization as an "act of 

conscience"; (2) interim regulations that were promulgated by the 

Attorney General on January 29, 1990; (3) Executive Order No. 

12,711, 55 Fed. Reg. 13,897-98 (1990); and (4) a November 7, 1991, 

memorandum of the General Counsel of the Service subscribing to the 

view that China's coercive family planning policies constitute persecution on account of political opinion. 

We have carefully considered the applicant's present challenges, the 

background materials contained in the Master Exhibit, and the amicus 

brief submitted in support of this appeal. Nevertheless, we remain of 

the opinion that our interpretation of the law regarding China's one 

couple, one child policy articulated in Matter of Chang, supra, is 

legally correct and consistent with INS v. Elias-Zacarias, 502 U.S. 478, 

(1992). 15 

15The arguments advanced in the amicus brief neither compel us to disturb our 

holding in Chang nor persuade us to modify it in any way. For example, although it is 

argued that the United States is obligated under various international human rights 

instruments to recognize coercive interference with a person's right to reproductive selfdetermination as persecution, these instruments do not provide potential avenues of 

relief to aliens in exclusion proceedings beyond those provided for in the Immigration 

and Nationality Act and implementing regulations. See Matter &Medina, 19 I&N Dec. 

734 (BIA 1988). 

1,7 
Interim Decision #3215 

First, the "policy guidelines" announced by Attorney General 

Meese on August 5, 1988, regarding the one couple, one child policy 

do not apply to decisions by the immigration judges and this Board. 

Matter of Chang, supra, at 43; see also United States ex rel. Acaordi v. 

Shaughnessy, 347 'U.S. 260 (1954); 8 C.F.R. §§ 2.1, 3.1, 3.10, 2013.2(b), 

236.1, 236.3, 242.8(a) (1993). 16Second, the interim regulations cited 

by the applicant were never finalized. 55 Fed. Reg. 2804 (1994' 7On 

July 27, 1990, the Attorney General issued final regulations governing 

the adjudication of asylum and withholding of deportation applications which superseded these interim regulations. See 55 Fed.. Reg. 

30,680 (1990) (codified at 8 C.F.R. Parts 3, 103, 208, 236, 242, and 

253 (1991)). The final regulations, which are currently in effect, did 

not incorporate any of the provisions of the interim regulations 

concerning asylum and withholding claims premised on coercive 

family planning policies of another country, and, in fact, make no 

reference to such policies.ig 

Third, while Executive Order No. 12,711 directs the Secretary of 

State and the Attorney General to give enhanced consideration to the 

asylum and withholding claims of individuals who express a fear of 

persecution related to a policy of forced abortion or coerced sterilization, the Attorney General has never directed this Board to evaluate 

these claims other than in accordance with the standard enunciated in 

the July 27, 1990, regulations. See 8 C.F.R. Part 208 (1993).' 9These 

regulations represent the most recent directive by the Attorney 

General in this area and are binding on both this Board and the 

immigration judges. See Matter of Fede, 20 I&N Dec. 35 (BIA 1989); 

Matter of Ansehno, 20 I&N Dec. 25 (BIA 1989). 

Lastly, we note that in his November 7, 1991, memorandum, the 

former General Counsel of the Service expressed a view of the law with 

respect to persecution claims based upon coercive birth control 

policies contrary to that found in Matter of Chang, supra. 2° This 

"In Matter of Chang, supra, the respondent urged this Board to apply these "policy 

guidelines" to his case. It was the Service's apparent position, however, that the case did 

not fall within the reach of the guidelines. Id. at 9. 

17These regulations, which were to be codified at B C.F.R. §§ 208.5 and 242.17(c), 

provided that aliens fleeing their country's family planning policies of forced abortions 

or sterilization may be considered to have a well-founded fear or a clear probability of 

persecution on account of political opinion. See 55 Fed. Reg. 2804, 2805 (1990). 

"The applicant's reliance upon an April 2, 1990, memorandum of the Commissioner 

of the Service is misplaced. This memorandum was written in response to the interim 

regulations and was intended as a policy guideline to Service adjudicators in the 

implementation of those regulations. 

I 9President George Bush issued Executive Order No. 12,711 on April 11, 1990. 

"In the memorandum, it was stated that "Department of Justice and INS policy with 

respect to aliens claiming asylum or withholding of deportation based upon coercive 

776 
Interim Decision #3215 

memorandum, however, has no binding effect on the decisions of this 

Board and the immigration judges. Moreover, where the opinion 

expressed relies for its support on authority that predates the Attorney 

General's final regulations and appears-to be inconsistent with INS v. 

Elias-Zacariasesupra, at 481-85 (holding that since the Immigration 

and Nationality Act makes motive critical, persecution on account of 

political opinion requires evidence that the alien has a political 

opinion and that the persecution feared would be "on account of that 

opinion), we find it to be of little, if any, persuasive authority on the 

present issue. See Lee v. INS, 685 F.2d 343 (9th Cir. 1982); Matter of 

Chang, supra, at 43; Matter of M/V Saru Meru, 20 I&N Dec. 592 (BIA 

1992); Matter of Salim, 18 I&N Dec. 311, 315 (BIA 1982); Matter of 

Cavazos, 17 I&N Dec. 215 (BIA 1980). 

On June 7, 1993, we referred two of our decisions involving these 

issues to the Attorney General for review under the provisions of 8 

§ 3.1(h) (1993). Pending the decision of the Attorney General 

on these referred cases, we will continue to follow Matter of Chang, 

supra, as precedent in all proceedings involving the same. issues, 

including the case now before us. See 8 C.F.R. § 3.1(g) (1993). 

Accordingly, we will deny the applicant's request for a stay of these' 

appellate proceedings pending the Attorney General's review of the 

two referred cases. 

Turning to the particulars of this case, we do not find that the 

applicant was persecuted in the past or that he possesses a "wellfounded fear" of persecution on account of his race, religion, 

nationality, !membership in a particular social group, or political 

opinion. Sections 101(a)(42)(A) and 208(a) of the Act, g U.S.C. 

§§ 1101(a)(42)(A) and 1158(a) (1988); INS v. Cardoza-Fonseca, 480 

U.S. 421 (1987) (holding that a "well-founded fear of persecution" 

standard applicable to asylum requests is significantly different from, 

and, in fact, requires a lesser degree of proof than the "clear 

probability" of persecution standard applicable to withholding requests); Janusiak v. United States INS, 947 F.2d 46, 47 (3d Cir. 1991); 

Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987) (finding that 

an applicant for asylum has established a well-founded feat if a 

reasonable person in his circumstances would fear persecution on 

account of one of the grounds enumerated in section 101(a)(4.2) of the 

Act); Matter of Chen, 20 I&N Dec. 16 (BIA 1989) (stating that an 

family planning policies is that the application of such coercive policies does constitute 

persecution on account of political opinion." According to this view, aliens whose claims 

were based on birth control measures involving forced abortion or coerced sterilihation 

were not required to demonstrate that the coercive measures were tied to a governmental purpose other than to control the population. 

777 
Interim Decision #3215 

applicant for asylum may establish his claim by presenting evidence of 

past persecution in lieu of evidence of a well-founded fear of 

persecution); Matter of Chang, supra; 8 C.F.R. § 208.13 (1993). 

The applicant contends that he was persecuted by the Chinese 

Government when it confiscated his property in accordance with their 

general population control policies. He further claims that he will face 

future persecution there in the form of sterilization, imprisonment, 

and a fine should he return. However, as we held in Matter of Chang, 

supra, at 43, the Chinese Government's implementation of its family 

planning policies is not on its face persecutive and does not by itself 

create a well-founded fear of persecution on account of one of the five 

grounds delineated in the Act, even to the extent that involuntary 

sterilization may occur. Thus, it is not enough for the applicant to 

show that such acts may have occurred or that there is a reasonable 

possibility that they would occur upon his return to China. To prevail 

on a claim premised on China's one couple, one child policy, it is 

incumbent upon the applicant to come forward with facts that 

establish that the policy was being selectively applied against him as a 

member of a particular religious or other social group, or being used as 

a means to punish him because of his race, nationality, or political 

opinion. Id. at 43. 

To this end, we note that however strongly the applicant may 

believe his violation of China's one couple, one child policies was an 

expression of a political opinion, he has provided no evidence even 

suggesting that the actions taken against him and his family were 

intended to punish him for that reason. The applicant never openly 

disagreed with the local family planning officials, or made known to 

them his opinion of their policies or his reasons, if any, for choosing to 

have another child. Nor is there any evidence indicating that his 

treatment was disparate or in some way more severe than the 

treatment of others who, like himself, violated the policy. 

On appeal, the applicant relies on Desir v. lichen, 840 F.2d 723 (9th 

Cir. 1988), a case involving a Haitian national who, because of his 

financial inability, refused to pay bribes to certain government 

officials. In that case, the United States Court of Appeals for the Ninth 

Circuit found that Desir had been persecuted, reasoning that the 

Government of Haiti perceived Desir to be a political subversive 

because of his refusal to pay. 

To the extent Desir v. Ilchert, supra, has been cited for the 

proposition that asylum could be granted on the basis of a perceived or 

"imputed political opinion," it lends little support to the applicant's 

present claim to relief. Nowhere in the record is there evidence 

suggesting that the Chinese authorities have ascribed a political 

opinion to the applicant contrary to their own or revealing a 

778 
Interim Decision #3215 

motivation on their part to penalize the applicant apart from his 

failure to observe that country's birth control policies 2' 

Abortion and sterilization may be untenable to the applicant's 

political beliefs. Coerced abortions and sterilization are certainly 

horrible acts. However, as the applicant has failed to show that the one 

couple, one child policy was applied to him for reasons protected 

under the Act, he has not demonstrated his eligibility for asylum under 

section 208(a) of the Act, and, accordingly, has failed to satisfy the 

more rigorous "clear probability" standard of eligibility required for 

withholding of deportation. See INS v. Elias-Zacarias, supra, at 403; 

Matter of Chang, supra; section 243(h) of the Act, 8 U.S.C. § 1253(h) 

(1988& Supp. IV 1992); INS v. Stevic, 467 U.S. 407, 429-30 (1984). 

The evidence presented does not demonstrate that it is more likely 

than not the applicant would be subject to persecution on account of 

one of the five grounds specified in section 243(h) of the Act. See 8 

C.F.R. § 208.16 (1993). 

Nor are we persuaded to grant the applicant asylum or withholding 

of deportation because he claims to have violated his country's travel 

laws. First, the applicant has not shown that he violated any law 

related to his exit from China. Moreover, even assuming that he did, 

he has not demonstrated that the prosecution he fears is on account of 

his political opinion or any other ground enumerated in the Act. See 

Janttsiak v. United States WS, supra; Blazina v. Bouchard 286 F.2d 

507 (3d Cir.), cert. denied, 366 U.S. 950 (1961); Coriolan v. INS, 559 

F.2d 993, 1000 (5th Cir. 1977); Matter of Sibrun, 18 I&N Dec. 354 

(BIA 1983); Matter of Matelot, supra, at 337; Matter of Nagy, 11 I&N 

Dec. 888 (BIA 1966); see also Rodriguez-Rivera v. INS, 848 F.2d 998, 

1005 (9th Cir. 1988); Zupicich v. Esperdy, 319 F.2d 773 (2d Cir. 1963), 

cert. denied, 376 U.S. 933 (1964). 

21 1n a January 19, 1993, legal opinion addressing the issue of the continuing viability 

of the imputed political opinion doctrine in light of the decision in INS v. EliasZacarias, supra, the General Counsel of the Service stated that a "final rule" was signed 

by Attorney General Barr on January 15, 1993, essentially finalizing the January 1990 

interim rules that had been previously superseded. This rule provided that "an applicant 

who establishes a well-founded fear that he or she will be forced to undergo abortion or 

sterilization pursuant to the implementation of a coercive family planning policy, or will 

be persecuted for failure to do so, shall be regarded as having established a well-founded 

fear of persecution on account of political opinion." The rule further provided that an 

applicant "is not required to make a separate showing that the persecutor will impute a 

political opinion to him nr her." This rule, however, was never promulgated. Moreover, 

this legal opinion, like the November 7, 1991, memorandum of the former General 

Counsel of the Service, does not appear consistent with the decision of the Supreme 

Court of the United States in INS v. Elias-Zacarias, supra. 

779 
Interim Decision #3215 

THE FAIRNESS OF THE HEARING 

The applicant's final challenge concerns the fairness of the hearing 

that he was afforded before the immigration judge. It is the applicant's 

position that "extrajudicial" sources prevented the immigration judge 

from rendering an independent determination and compromised the 

impartial and unbiased nature of the proceedings below. 

The applicant submits that an attorney representing another 

passenger on the Golden Venture contacted the Immigration Court in 

Baltimore, Maryland, to request a continuance of the hearing, only to 

learn that the Court was explicitly directed by the White House not to 

grant such requests.22The applicant also references two newspaper 

articles in which officials from the United States Department of State 

and United States Department of Justice "confirmed" the administration's interest in expediting the cases of Golden Venture as a deterrent 

against future smuggling operations. See Chinese Immigrants Refuse to 

Eat, Philadelphia Inquirer, August 21, 1993, at A10; U.S. Tightens 

Asylum Rules For Chinese, New York Times, September 5, 1993, at 

45. The applicant further references a quote in one of the articles in 

which an unidentified employee of the Service described 99% of the 

Golden Venture immigrants' claims as "bogus." See Chinese Immigrants Refuse to Eat, supra, at A10. 

The applicant contends that this direct interference by the White 

House coupled with the administration's expressed desire to "send a 

signal" to future Chinese immigrants and smugglers have tainted these 

proceedings and those of other Golden Venture aliens. He argues that 

the disparity between the approval rates of the asylum requests of 

aliens from the Golden Venture and other Chinese aliens whose 

applications were adjudicated in 1992 prove that the Clinton administration is seeking to "steer" the immigration judges to a specific 

political result. 

Administrative proceedings must conform to the basic notions of 

fundamental fairness. See Harisiades v. Shaughnessy, 342 U.S. 580 

(1952). However, we fail to see in what manner the applicant here has 

been denied a constitutionally fair hearing. For example, he does not 

explain how he himself was prejudiced by these "outside" influences 

or how the immigration judge's finding with respect to the entry issue 

and her denial of his applications for asylum and withholding of 

deportation stemmed from these "extrajudicial" sources. See generally 

Garcia-Jaramillo v. INS, 604 F.2d 1236, 1238-39 (9th Cir. 1979), cert. 

denied, 449 U.S. 828 (1980); Matter of Santos, 19 I&N Dec. 105 (BIA 

22 1n an affidavit submitted for the first time on appeal, the attorney who was apprised 

of this communication admitted that she did not know the identity of the person to 

whom she had spoken. 

780 
Interim Decision #3215 

1984). He cites no specific examples of misconduct on the part of the 

immigration judge to support the notion that her decision was decided 

on some basis other than her understanding and knowledge of the 

applicable laws and regulations and what she adduced from her 

participation in the case, and we can find none here. See Matter of 

Exame, 18 I&N Dec. 303 (BIA 1982); Matter of Bader, 17 I&N Dec. 

525, 527 (BIA 1980); Matter of Carrillo, 17 I&N Dec. 30 (BIA 1979); 

Matter of Lennon, 15 I&N Dec. 9 (BIA 1974); Matter of De Lucia, 11. 

I&N Dec. 565 (BIA 1966), affd, 370 F.2d 305 (7th Cir. 1966); Matter 

of Bufalino, 11 I&N Dec. 351 (BIA 1965). 

As for the statistical disparity between the approval rates of the 

Golden Venture cases and those of other Chinese nationals, it is largely, 

if not entirely, attributable to the difference between this Board's 

interpretation of the law regarding coercive family planning policies, 

as enunciated in Matter of Chang, supra, and the view adopted by the 

previous General Counsel of the Service. Thus, we do not find this 

empirical data persuasive to the applicant's present claim. 

The applicant submits that the Clinton administration has made it 

known for some time that cases involving aliens smuggled into the 

United States, including those passengers on the Golden Venture, 

would receive expedited treatment to discourage illegal smuggling into 

this country. However, there is no evidence that the immigration judge 

was biased in her handling of the applicant's case or that the hearing 

afforded the applicant was unfair. Moreover, the attention given the 

applicant's case is no different than the priority attention given to 

other cases of aliens detained at government expense. 

With regard to the alleged ex parte communication between the 

Clinton administration and the Office of the Immigration Judge, we 

are at a loss as to its relevance here. Aside from the fact that there is no 

evidence that such a communication occurred, the applicant never 

requested a continuance of the hearing on the merits of his applications and does not now allege that he was denied the opportunity to 

obtain legal representation or to prepare his asylum or withholding 

case. See generally Saballo-Cortez v. INS, 749 F.2d 1354 (9th Cir. 

1984); Matter of Carrillo, supra, at 31. For these reasons, we do not 

find that the immigration judge erred in her handling of the 

proceedings below or in any way denied the applicant due process of 

law. Accordingly, the following orders will be entered. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: The applicant's motion for a stay of 

these appellate proceedings before this Board is denied. 

781