Interim Decision #2238 

MArlhat OF PIERRE et al. 

In Exclusion Proceedings 

A20182758-763 

Decided by Board October 5, 1973 

(1) An alien has not effected an entry into the United States unless, while free 

from actual or constructive restraint, he has crossed into the territorial limits 

of the United States and has been inspected and admitted by an immigration 

officer or has actually and intentionally evaded inspection at the nearest 

inspeftion point. 

(2) Respondents, Haitian refugees, who, upon arrival at the port of West Palm 

Beach, Florida, remained on board their vessel awaiting inspection by immigration officers but who were not admitted by such officers, did not make an 

entry into the United States. Consequently, exclusion proceedings are proper 

in their cases and relief under section 243(h) of the Immigration and Nationality Act, as amended, is, therefore, unavailable to them. 

EXIIMIDA PLR. Act of 1952—Section 212(a)(20) ta U.S.C. 1182(a)(20)1—Immigrants—no visas. 

ON BEHALF•OF APPLICANTS: 

Donald I. Bierman, Esquire 

Bierman & Sonnett, P.A. • 

600 Roberts Building 

28 West Flagler Street 

Miami, Florida 33130 

ON BEHALF OP SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

The aliens, hereafter referred to as "applicant," appeal from the 

May 24, 1978 decision of the immigration judge in which he found 

them excludable under section 212(a)(20) of the Immigration and 

Nationality Act, and refused to hear their claims of persecution 

under section 243(h) of the Act. The appeal will be dismissed. 

The principal question to be decided is whether these eases are 

properly in exclusion rather than deportation proceedings. The 

applicants are all natives and citizens of Haiti. They left Haiti in a 

small boat, which fell into distress and was towed into West Palm 

Beach, Florida, a designated port of entry, 8 CFR 100.4(c)(2) by an 

American vessel on May 20, 1973. Upon being questioned, they 

informed the captain of the American vessel that they had no 

entry documents. Then they waited on board for the arrival of 

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Interim Decision #2238 

immigration officers in the hope of being allowed to remain in the 

United States as political refugees. Because they did not appear to 

the immigration officers to be clearly and beyond a doubt entitled 

to land, the matter was referred to the immigration judge for 

further inquiry in accordance with section 235(b) of the Act. The 

applicants were held in custody until June 15, 1973, when they 

were paroled in the custody of a group of ministers. Their applications for political asylum were denied by the District Director after 

he had consulted with the Office of Refugee and Migration Affairs 

of the Department of State. 

The applicants contend thay they should be heard in deportation (i.e. expulsion) rather than exclusion proceedings. Therefore, 

the key question is whether or not an entry was made, since it is 

clear that they did not effect an "entry" into this country, 

exclusion proceedings were proper, whereas the proceedings must 

be in deportation if the aliens made an "entry." 

Section 291 of the Immigration and Nationality Act provides 

that any person who applies for admission to the United States 

must establish that he is not subject to exclusion. An alien who 

has effected an entry is not subject to exclusion, but rather to 

deportation. Section 291 further provides that in deportation 

proceedings the respondent must bear the burden of showing the 

time, place, and manner of his entry into the United States. It 

follows, therefore, that the responsibility for establishing whether 

an entry has been made rests on the alien. 

The courts have found it necessary to interpret the term 

"entry," which is now defined in section 101(a)(13) of the Act as 

"...any coining of an alien into the United States, from a foreign 

port or place or from an outlying possession...." A survey of the 

many cases which have treated this subject over the years leads to 

the following conclusion: An "entry" involves (1) a crossing into 

the territorial limits of the United States, i.e. physical presence; 

plus (2) inspection and admission by an immigration officer, United 

States v. Vasilatos, 209 F.2d 195 (C.A. 3, 1954); Lazarescu v. United 

States, 199 F.2d 898, 900 (C.A. 4, 1952); or (3) actual and intentional 

evasion of inspection at the nearest inspection point, U.S. ex rel. 

Giaeone v. Corsi. 64 F.2d 18 (C.A. 2, 1933); Morini v. United States, 

21 F.2d 1004 (C.A. 9, 1927), cert. den. 276 U.S. 623 (1928); Lew Mop v. 

United States, 237 Fed. 50, 52 (C.A. 8, 1916); Matter of EstradaBetancourt, 12 I. & N. Dec. 191, 193-4 (BIA 1967); Matter of 

Albuerne-Urquiza, Al? 334 264, unreported decision (BIA October 

12, 1967); coupled with (4) freedom from restraint, United States v. 

Vasilatos, supra; Lazarescu v. United States, supra. In all of the 

above cases these conditions were satisfied and an entry was 

effected. 

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In contrast, the courts have held that no entry is made when 

the alien is taken into custody upon his arrival at an American 

port (even though he may possess a valid immigrant visa), taapholz v. Esperdy, 302 F.2d 928, 929 (CA. 2), cert. den. 371 U.S. 891 

(1962). There is no entry when the alien is under official restraint, 

even after his ship has arrived at port and he has been inspected 

and given a conditional landing permit, in re Dubbiosi, 191 F. 

Supp. 65, 66 (E.D. Va. 1961). The restraint may take the form of 

surveillance, unbeknownst to the alien; he has still not made an 

entry despite having crossed the border with the intention of 

evading inspection, because he lacks the freedom to go at large 

and mix with the population, Ex parte Chow Chok, 161 Fed. 627, 

629-30, 632 (N.D.N.Y.), aff'd 163 Fed. 1021 (CA. 2, 1908). 

Parole is not an admission, section 212(dX5), Immigration and 

Nationality Act, and therefore does not constitute an entry, Leng 

May Ma v. Barber, 357 U.S. 185, 186, 188-90 (1958); Vitale v. INS, 

463 F.2d 579, 582 (C.A. 7, 1972); Siu Fung Luk v. Rosenberg, 409 

F.2d 555, 558 (C.A. 9), cert. denied 396 U.S. 801 (1969); U.S. ex rel. 

Tom We Shang v. Murff, 176 F. Supp. 253, 256 (S.D.N.Y. 1959), aff'd 

247 F.2d 667 (CA. 2, 1960). Moreover, when an alien crosses the 

border, intends to present himself for inspection, and follows the 

ordinary path from the international line to the nearest inspection 

point, he has not effected an entry, Thack v. Zurbrick, 51 F.2d 634, 

635-36 (C.A. 6, 1931). A fortiori an entry is not made when an alien 

merely crosses into the territorial waters of the United States 

without landing and without evading inspection. 

In the present case, the aliens arrived at port but did not land. 

Instead, they waited on board their vessel until they could be 

inspected by immigration officers. While they may have crossed 

into the territorial limits of the United States, they were not 

admitted by immigration officers, nor did they intentionally evade 

inspection. On the contrary, they requested inspection (Tr. P. 12). 

The captain of the American vessel has no authority to admit 

them. Indeed, he would have been subject to penalties if he had 

permitted them to land, sections 271 and 273, Immigration and 

Nationality Act. 

Counsel relies heavily on Matter of Estrada-Betancourt, supra, in 

which we found that an entry had been made and that, therefore, 

deportation proceedings rather than exclusion proceedings were 

proper. The aliens in that case did not arrive at a "designated port 

of entry." We stated that they "were required to proceed by the 

ordinary route to the nearest such port for their inspection," and 

held that "when they evaded inspection at that place their 'entry' 

was effected and they were thereafter properly the subject of 

expulsion proceedings for having 'entered without inspection,"' id. 

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at 194. That the applicants in the present case remained on board 

and waited for the immigration inspectors to come to them does 

not alter the fact that they did not evade or seek to evade 

inspection at the nearest inspection point. 

Accordingly, we find that the applicants have not sustained 

their burden of establishing that an entry was made. In Beauvil 

v.Ahrens, 333 F.2d 307 (C.A. 5, 1964), on substantially similar facts, 

the United States Court of Appeals held that exclusion proceedings were proper." Consequently, we agree with the immigration 

judge that the proceedings are properly in exclusion, not in 

deportation. 

Since these are exclusion proceedings, the immigration judge 

correctly refused to hear the applicants' claims of persecution 

under section 243(h) of the Act. That provision by its terms applies 

to aliens "within the United States" and not to those who, like the 

applicants, seek admission. Section 243(h) relief is thus unavailable 

to applicants in exclusion proceedings, Leng May Ma v. Barber, 

supra at 186; U.S. ex rel. Tom We Shung v. Murff, supra at 260. 

Applicants for admission and excluded aliens have the alternative remedy of presenting evidence concerning feared persecution 

to the District Director and requesting parole pursuant to section 

212(dX5) and 8 CFR 212.5(a). Cf. Glavic v. Beeehie, 225 F. Supp. 24, 

27 (S.D. Tex. 1963), affd 340 F.2d 91 (CA. 5, 1964) (where a 

crewman has the opportunity to seek parole under section 

212(dX5), a hearing under section 243(h) is not required by the Act). 

The applicants have availed themselves of this opportunity, but 

the District Director denied their requests for political asylum 

after consultation with the Office of Refugee and Migration Affairs, Department of-State. Neither the immigration judge nor this 

Board is empowered to grant parole pursuant to section 212(dX5) 

of the Act, Matter of Conceiro, Interim Decision No. 2183 (BIA 1973), 

affd Conceiro v. Marks, 360 F. Supp. 454 (S.D.N.Y. 1973). 

The applicants claim that not to allow them to be heard in 

deportation proceedings is a violation of due process under the 

Fifth Amendment of the United States Constitution. Similarly, 

they assert that it is a violation of their rights to due process and 

equal protection of the laws under the Fifth and Fourteenth 

Amendments for the immigration judge to refuse to hear their 

persecution claims. They insist further that their exClusion and 

subsequent deportation to Haiti would constitute cruel and unusual punishment, and would violate their rights under the Eighth 

1The facts in the Beauvil case are fully set forth in the unreported Board 

decision, Matter of Haiti-an Refugees, Ala 322 3/1-57, 551-Aft (BIA. December 3, 

1963). 

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Amendment of the United States Constitution. These claims were 

advanced in order to preserve them in the event that appeal to the 

courts should become necessary. The applicants acknowledge that 

it is not within the province of this Board to pass upon the 

constitutionality of the statutes we administer, Matter of L—, 4 I. 

& N. Dec. 556, 557 (BIA 1951). 

Congress has provided that a hearing be given to those whose 

right to enter is in dispute, sections 235(b) and 236, Immigration 

and Nationality Act. We have determined that the hearing held 

before the immigration judge in the present ease was fairly 

conducted. We agree with the decision of the immigration judge 

that the proceedings were properly in exclusion, and that he was 

therefore without jurisdiction to hear the persecution claims 

under section 243(h). 

Counsel has requested that the case be certified to the Attorney 

General pursuant to 8 CFR 3.1(h). We see no reason for certification and therefore deny counsel's request. 

ORDER: The appeal is dismissed. 

471