MATTER OF SHIItDEL, et ed. 

In Exclusion Proceedings 

A-26166161 

A-26166168 

A-26166164 

A-26166165 

Decided by Board February 21, 1984 

(1) Afghan nationals who arrived in the United States with fraudule,nt Turkish passports as transit without visa ("TRWOV") aliens in order to submit applications for 

asylum are excludable under the second clause of section 212(aX19) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(19) (1982), for attempting to enter 

the United States by fraud or material misrepresentation. 

(2) The use of fraudulent Turkish passports by Afghan nationals in order to avail 

themselves of the TRWOV privilege was an integral part of their material misrepresentation in attempting to enter the United States. 

(3) Afghan nationals who came here from a foreign port in order to submit applications for asylum attempted an "entry" into the United States within the meaning 

of section 101(a)(13) of the Act, 8 U.S.C. §1101(aX13) (1982). 

(4) An alien who circumvents the orderly procedures for obtaining refugee status 

abroad will ha denied the discretionary relief of asylum in the absence of strong 

countervailing equities to overcome this serious adverse factor. 

(5) Whether or not an applicant in exclusion proceedings is excludable under section 

212(aX19) of the Act is not determinative as to the issue of the discretionary relief 

of asylum. Maiter of Sulini, 18 I&N Dec. 811 (BIA 1982), olariffed. 

EXCLUDABLE: Act of 1952—Sec. 212(aX19) [8 U.S.C. §1182(aX19)]—Procured visa 

by fraud or willful misrepresentation of a material 

fact 

Sec. 212(020) [8 U.S.C. § 1182(aX20)]—No valid immigrant visa 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Stephen M. Perlitsh, Esquire Guadalupe Gonzalez 

Cohen & Tucker Appellate Trial Attorney 

1501 Broadway 

New York, New York 10036 

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

33 
The applicants appeal from the May 17, 1983, decision o

migration judge. finding them excludable under section 212(

the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(19

denying their application for asylum pursuant to section 20

Act, 8 U.S.O. § 1158 (1982), and granting them temporary w

ing of deportation to Afghanistan pursuant to section 243(h

Act, 8 U.S.C. § 1253(h) (1982). The appeal will be dismissed. 

The applicants' additional excludability under section 21

of the Act, 8 U.S.C. § 1182(a)(20) (1982), for lack of a val

grant or nonimmigrant visa is not at issue and was conced

exclusion hearing. They are natives and citizens of Afg

who arrived in the United States without documentation 

mitted applications for asylum and 243(h) relief. They con

the immigration judge erred in denying their applicat

asylum as a matter of discretion. They also contend that th

gration judge erred in finding them excludable under 

212(a)(19), merely because they arrived in the United State

as transit without visa ("TRWOV") aliens using fraudule

tained Turkish passports and airplane tickets issued in 

names. See Matter of Salim, 18 I&N Dec. 311 (BIA. 1982)

agree with both of the applicants' contentions. 

The burden in exclusion proceedings is upon the applican

mission to establish that he is not inadmissible under any p

of the Immigration and Nationality Act. See section 291 o

8 U.S.C. § 1361 (1982); Matter of Ramirez-Rivero, 18 I&N 

(BIA 1981); Matter of Doural, 18 I&N Dec. 37 (BIA 1981); 

Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979). Section 

renders excludable from admission- 

(ra)ny alien who seeks to procure, or has sought to procure, or has proc

or other documentation, or seeks to enter the United States, by fraud

fully misrepresenting a material fact. 

The Attorney General has held that the first clause of 

212(a)(19), relating to documents, is both prospective and r

tive, but the second clause of the statute, relating to seek

into the United States, is prospective only. Matter of M

Dec. 752 (BIA 1955); Matter of M-, 6 I&N Dec. 149 (BIA, A

Consequently, an alien whose fraud or material misreprese

relate to the procurement of documents is forever barred 

mission, unless he obtains a waiver),On the other hand, a 

misrepresentation in connection with an entry not relat

1See section 241(0(1) of the Act, 8 § 1251(0(1) (1982), as amende

8 of the Immigration and Nationality Act Amendments of 1981, Pub. L. N

95 Stat. 1611. 

34 
py y 

not preclude a subsequent entry otherwise regular. We must examine the facts of this case for excludability under both clauses of the 

statute, since the immigration judge did not specify under which 

clause of section 212(a)(19) his finding was based. 

The applicants contend that they are not excludable under section 212(a)(19) because they did not commit any fraud or willful 

misrepresentation to a United States official to cause the issuance 

of a visa or documentation. See Matter of Kai Hing Hui, 15 I&N 

Dec. 288 (BIA 1975); Matter of Sarkissian, 10 I&N Dec. 109 (BIA 

1962); Matter of Box, 10 I&N Dec. 87 (BIA 1962); Matter of L-L-, 9 

I&N Dec. 324 (BIA 1961). We closely scrutinize the factual basis for 

a possible finding of excludability under the first clause of section 

212(a)(19) for fraud in the procurement of entry documents since 

such a finding perpetually bars an alien from admission. Matter of 

Healy and Goodchild, supra; compare Matter of M-, 6 I&N Dec. 752 

(BIA 1955). 

We conclude that a finding of excludability under the first clause 

of section 212(a)(19) of the Act cannot be sustained. The applicants' 

intentional misstatements to airline officials concerning their 

intent to proceed through the United States to Canada and their 

fraudulent use of Turkish passports procured to obtain passage to 

this country as TRWOV aliens were material misrepresentations 

within the meaning of section 212(a)(19) of the Act. See Matter of 

S- and B-C-, 9 I&N Dec. 436 (BIA 1960; A.G. 1961); cf. Suite v. 

INS, 594 F.2d 972 (3d Cir. 1979). Yet, their use of the passport and 

statements to airline officials were not made in connection with 

the procurement of a visa or their documentation and did not involve misrepresentation before officials of the United States Government. See Matter of Hai Hing Hui, supra; Matter of Sarkissian, 

supra; Matter of Box, supra; Matter of L -L-, supra. Similarly, there 

is no evidence that the applicants made material misrepresentations or committed fraud in connection with their applications for 

refugee status. See United States v. Fedorenko, 449 U.S. 490 (1981)

Consequently, we fmd that the applicants are not excludable under 

the first clause of section 212(aX19) of the Act as aliens, who sough

to procure or who have procured a visa or other documentation by 

fraud or by willful misrepresentation of a material fact. 

However, we find the applicants excludable under the second 

clause of section 212(a)(19) for seeking to enter the United States by 

fraud or a material misrepresentation. See Matter of M-, 6 I&N 

Dec. 752 (BIA 1955); Matter of M-, 6 I&N Dec. 149 (BIA, A.G. 1954)

Our decisions in Matter of Box, supra; Matter of L-L-, supra; 

Matter of Sarkissian, supra,- and Matter of Kai Ring Hui, supra
are inapplicable since they dealt with cases in which exc

was charged based on the procurement of documents by 

material misrepresentation. Such is not the case here, w

fraud was their flying to the United States posing as 

aliens in order to submit applications for asylum. TRWO

are admitted under agreements with the transportati

which guarantee their immediate and continuous passage 

eign country, and do not encounter United States offic

they arrive at a port of entry. See generally Matter of PAA 

896/10'; 8 I&N Dec. 498 (BIA 1959); 1 C. Gordon & H. R

Immigration Law and Procedure § 2.9a (rev. ed. 1982); 2 

& H. Rosenfield, supra, at § 9.20c. Until May of 1979 neit

gration judges nor this Board addressed asylum claims in 

proceedings. Matter of Salim, supra; Matter of Lam, 18 I&

(BIA 1981). Consequently, the question of what constitute

material misrepresentation in seeking to enter the Unit

as an applicant for asylum is an issue of first impressi

this Board. 2 

In United States v. Kavazanjian, 623 F.2d 730 (1st Cir. 

court held that if an alien adopts the TRWOV device sole

purpose of reaching the United States and submitting a

application without any intention of pursuing the remain

journey, it constitutes a fraud on the United States. The 

device is designed to facilitate international travel by p

aliens travelling between foreign countries to make a st

the United States without presenting a passport or visa. S

212(d)(4)(C), 8 U.S.C. § 1182(d)(4)(C) (1982). To avail him

TRWOV privilege an alien must establish that he is ad

under the immigration laws; that he has confirmed and 

reservations to at least the next country beyond the Unite

and that he will continue his journey and depart thi

within 8 hours after his arrival or on the next available 

See 8 C.F.R. § 214.2(c) (1984); 22 C.F.R. § 41.30 (1984). 

Pursuant to section 101(a)(15)(C) of the Act, 8 

§ 1101(a)(15)(C) (1982), and 8 C.F.R. § 212.1(e) (1984), TRW

are exempt from the passport and visa requirements if th

possession of travel documents establishing their identity

ity, and ability to enter some other country. However, 

§ 212.1(e)(3) (1984) specifies that the TRWOV privilege i

able to citizens or nationals of Mghanistan, Cuba, Iraq

The basis for that restriction imposed on Afghans is thei

2 We did not need to address this question in Salim because exclud

section 212(aX19) was conceded at the exclusion hearing. 

36 
the TRWOV device in order to submit applications fo

refugees. See 47 Fed. Reg. 5990, 8005 (1982). It is clea

plicants committed fraud upon the United States in or

in this country by posing as Turkish citizens. 

The applicants clearly intended to enter the United 

was their ultimate goal. They chose not to wait abroa

gee visa. Instead, their first step for eventually enterin

try as refugees was to apply for asylum when they ar

United States on February 5, 1983. They needed to b

present in this country in order to submit such an appli

they could not fly here legally because they did not ha

were precluded from obtaining TRWOV status as Af

als. They avoided the 8 C.F.R. § 212.1(e)(3) (1983) r

TRWOV status for Afghans by fraud. The four Turki

they fraudulently purchased for $8,000 included air

issued to the same names listed in the passports. 3Tu

als are not precluded from obtaining TRWOV status p

C.F.R. § 212.1(e)(3) (1983). Posing as Turkish nationa

cants were able to apply for asylum in New York, cir

the orderly procedures for applying for refugee status a

Section 101(a)(13) of the Act, 8 U.S.C. § 1101(aX13) 

in part, that "[tjhe term 'entry' means any coming of a

the United States from a foreign port or place. . . ." 

cants came here from such a foreign port in order to su

plication for asylum. Consequently, the immigration ju

found the applicants excludable under section 212(a

tempting to enter the United States by fraud. The frau

tegral step in their scheme to eventually enter as refuge

We also agree with the immigration judge's denial o

cation for asylum as a matter of discretion, even thou

that they had a well-founded fear of persecution in the

Only the sons' passports and airline tickets were made part of t

the father's passport included his wife and daughter who procee

without being detained. The father had a similar Turkish pass

ticket. 

* The dictum in United States v. Kavazanjian, supra, at 738

TRWOV is not attempting to enter because he is precluded from 

status by section 245(cX3) of the Act, 8 U.S.C. § 1255(cX3) (1982), a

status is similar to that of a parolee. However, section 209 of the 

§ 1159 (1982), is the applicable adjustment provision for asylees, not s

tion 245(cX3) is applicable only to adjustment applications pursuan

Moreover, unlike a parolee, an asylee is not subject to certain gruuu

ity and has available more waivers of excludability than a mere paro

209(c) of the Act. Pursuant to section 101(aX13) of the Act, any comi

with limited exceptions, constitutes an "entry." 

37 
cant has the burden to establish that the 

cretion is warranted. Matter of Salim, 

I&N Dec. 550 (BIA 1980); Matter of Salm

1978); Matter of Rojas, 15 I&N Dec. 492 (

13 I&N Dec. 494 (BIA 1970). The critica

plications for asylum is that by using fra

properly bypassed the orderly procedure

refugee status abroad. The record reflec

sold the airplane tickets and documents 

an airplane bound for the United State

smugglers. We have in the past consid

factor to enter the United States with 

smuggler because of the threat it prese

our immigration laws. Matter of Rojas, s

The number of Afghan refugees admi

must .fall within the ceiling of 5,000 allo

Middle East refugees. Therefore, the St

Human Rights and Humanitarian Affair

visory letter that the asylum application

siderations since the applicants misused 

gain an advantage over all other simila

gees who are following the established pr

grating to the United States. 

We have weighed all the equities and 

tions for asylum were properly denied in 

Walai v. INS, 552 F. Supp. 998 (S.D.N.Y

supra. To grant asylum to someone who 

by sulugglers, after he Iltnri 

try where he reasonably feared persecut

others to likewise bypass the orderly pro

migrating as a refugee. The applicants s

of ther,th=q- citucterl Afghan 

tives in this country are other applicants 

tion that being denied asylum could re

cause the mother and daughter are not 

applicants for asylum is illogical. If t

38 
deported to Pakistan unless Pakistan agrees to their resettlement 

there. See Walai v. INS, supra. Under section 7 of the Immigration 

and Nationality Act Amendments of 1981, Pub. L. No. 97-116, 95 

Stat. 1611, the applicants can ultimately be deported to any country which will accept them. See Walai v. INS, supra; Matter of 

Salim, supra, n.1. 

ORDER: The appeal is dismissed. 

5Since their excludability derives from the second clause of section 212(aX19), it 

would not preclude a subsequent entry otherwise regular in an adjustment application as derivative refugees. See Matter of M-, 6 I&N Dec. 752 (B1A. 1955); Matter of 

M-, 6 MN Dec. 149 (BTA, A.G. 1954); see also supra note 4. 

39