Interim Decision #3193 

MATTER OF HIn Exclusion Proceedings 

A-71537966 

Decided by Board November 10, 1992 

Proceedings against an alien who has been refused admission under the Visa Waiver 

Pilot Program and who has applied for asylum in the United States must be commenced 

with a Notice to Applicant for Admission Detained for Hearing before Immigration 

Judge (Form 1-122). 

EXCLUDABLE: Refused admission pursuant to section 217 of the Act 

ON BEHALF OF APPLICANT: 

Jules E. Coven, Esquire 

Lebenkoff & Coven 

505 Fifth Avenue 

New York, New York 10017 

ON BEHALF OF SERVICE: 

David M. Dixon 

Appellate Counsel 

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

In an oral decision dated March 6, 1992, the immigration judge 

terminated the applicant's proceedings and certified his decision to 

this Board pursuant to 8 C.F.R. § 3.1(c) (1992). The decision of the 

immigration judge will be affirmed. 

The record reflects that the applicant arrived in the United States 

on January 13, 1992, and sought entry pursuant to the Visa Waiver 

Pilot Program provisions found at section 217 of the Immigration and 

Nationality Act, 8 U.S.C. § 1187 (1988), and 8 C.F.R. §§ 217.1-.6 

(1992). 

The applicant is an 18-year-old citizen and national of the People's 

Republic of China. Upon his arrival in this country, he presented a 

Japanese passport bearing his picture to an Immigration and Naturalization Service inspector. He was referred to secondary inspection for 

a closer examination of his passport. The Service inspectors in 

secondary inspection determined that the original photograph in the 

passport had been replaced by the applicant's photograph; that the 

applicant was not the person to whom the passport had been issued; 

and that the applicant was a citizen of the People's Republic of China, 

not Japan. When the applicant requested asylum in the United States, 

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the Service brought him before an immigration judge for a determination of his eligibility for asylum. 

The applicant appeared before the immigration judge on February 

25, 1992. In his oral decision dated March 6, 1992, the immigration 

judge noted the absence of a charging document in the record, 

terminated proceedings, and then certified his decision to this Board 

for review.' 

On appeal, the Service states that the immigration. judge's decision 

should be affirmed and that the case should be remanded for the 

issuance of a Notice to Applicant for Admission Detained for Hearing 

before Immigration Judge (Form 1-122). The applicant has submitted 

no brief on appeal. 

Section 217 of the Act provides for a Visa Waiver Pilot Program 

under which visitors to the United States from specified countries may 

stay in the United States for up to 90 days without a visa. 2Section 

217(b) states that 

Lain alien may not be provided a waiver under the pilot program unless the alien has 

waived any right 

(1) to review or appeal under this Act of an immigration officer's determination 

as to the admissibility of the alien at the port of entry into the United States, or 

(2) to contest, other than on the basis of an application for asylum, any action for 

deportation against the alien. 

Subsequent to the enactment of section 217 of the Act, the Service 

promulgated regulations implementing the Visa Waiver Pilot Program. In Matter of L-, 20 I&N Dec. 553 (BIA 1992), we held that, 

pursuant to the regulatory provisions regarding deportability determinations under section 217 of the Act, proceedings against an alien 

admitted under the Visa Waiver Pilot Program who has applied for 

asylum in the United States must be commenced with an Order to 

Show Cause. The case at hand requires us to interpret the regulatory 

provisions regarding admissibility determinations for aliens who apply 

for admission under section 217 of the Act, are found inadmissible at 

the port of entry, and then apply for asylum. 

The record reflects that on April 20, 1992, the applicant filed a motion to change 

venue with the Office of the Immigration Judge in Miami. Since the immigration judge 

had certified his decision to this Board on March 6, 1992, he no longer retained 

jurisdiction over the applicant's case when the motion was filed Given the fact that we 

will affirm the immigration judge's termination of proceedings for lack of jurisdiction in 

this case, we need not address the applicant's request for a change of venue. 

2To date, the following countries have been designated as Visa Waiver Pilot Program 

countries based on the criteria set forth at sections 217(a)(2)(A) and (c) of the Act: the 

United Kingdom, Japan, France, Switzerland, Germany, Sweden, Italy, the Netherlands, 

Andorra, Austria, Belgium, Denmark, Finland, Iceland, Liechtenstein, Luxembourg, 

Monaco, New Zealand, Norway, San Marino, and Spain. See 8 C.F.R. § 217.5(a) (1992). 

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The current regulatory provisions regarding admissibility determinations are set forth in 8 C.F.R. §§ 217.4(b) and 236.9 (1992). The 

regulation at 8 C.F.R. § 217.4(b)(1) (1992) provides: 

An alien who applies for admission under the provisions of section 217 of the Act, 

who is determined by an immigration officer not to be eligible for admission under 

that section or to be excludable from the United States under one or more of the 

grounds of excludability listed in section 212 of the Act (other than for lack of visa), 

or who is in possession of and presents fraudulent or counterfeit travel documents, 

will be refused admission into the United States and removed. Such refusal and 

removal ... shall be effected without referral of the alien to an immigration judge 

for further inquiry, examination, or hearing, except that an alien who presents himself 

or herself as an applicant for admission under section 217 of the Act, who applies for 

asylum in the United States must be referred to an immigration judge for further 

inquiry. (Emphasis added.) 

In relevant part, 8 C.F.R. § 236.9 (1992) provides: 

Pursuant to section 217(b)(4)(A) [sic] of the Act, 3an alien who applies for admission 

to the United States under the provisions of that section must waive any right to 

review or appeal an immigration officer's determination as to the admissibility of the 

alien at a port of entry, other than on the basis of an application for asylum. An alien 

applicant for athrilbsiun under sectiun 217 of the Act shall be removed from the 

United States upon a determination by an immigration officer ... that the alien is 

inadmissible in accordance with procedures in § 217.4(b) of this chapter except that 

such an alien who applies for asylum in the United States shall be referred to an 

Immigration fudge for fiirri:er inquiry as provided in section 25S of the Act and 

§ 236.3 of this part. (Emphasis added.) 

Section 235(b) of the Act, 8 U.S.C. § 1225(b) (1988), the mechanism through which the Service places aliens into exclusion proceedings before an immigration judge, provides in relevant part: 

Every alien ... who may not appear to the examining immigration officer at the 

port of arrival to be clearly and beyond a doubt entitled to land shall be detained for 

further inquiry to be conducted by [an immigration judge]. 

Additionally, the regulations at 8 C.F.R. § 235.6(a) (1992) provide: 

If, in accordance with the provisions of section 235(b) of the Act, the examining 

immigration officer detains an alien for further inquiry before an immigration judge, 

he shall immediately sign and deliver to the alien a Notice to Alien Detained for 

Hearing by an Immigration Judge (Form 1-122). 

Finally, the regulations provide that "[j]urisdiction vests and 

proceedings before an Immigration Judge commence when a charging 

document is filed with the Office of the Immigration Judge." See 8 

C.F.R. § 3.14 (1992). 

In accordance with the regulations cited above, a Service officer 

must refer a Visa Waiver Pilot Program applicant who applies for 

3We note that section 217(b)(4)(A) of the Act was redesignated as section 217(b)(1) by 

section 201(a)(5)(B) of the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978, 

5013 (effective Nov. 29, 1990). 

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asylum "to an immigration judge for further inquiry as provided in 

section 235 of the Act." See 8 C.F.R. § 236.9 (1992). Inasmuch as 

section 235 of the Act contains no separate provisions regarding Visa 

Waiver Pilot Program applicants, we conclude that the exclusion 

proceedings of a Visa Waiver Pilot Program applicant who has applied 

for asylum commence when a Form 1-122 has been filed with the 

Office of the Immigration Judge. See section 235(b) of the Act; 8 

C.F.R. §§ 3.14, 235.6(a) (1992). 

In this case, the applicant attempted to enter the United States 

under the Visa Waiver Pilot Program. He was refused admission by 

the Service officer and then applied for asylum. Inasmuch as the 

Service has not filed a Form 1-122 with the Office of the Immigration 

Judge, we find that proceedings before the immigration judge have not 

commenced. Consequently, we will affirm the immigration judge's 

decision terminating proceedings in this case based on his determination that he lacked jurisdiction to conduct the applicant's hearing. 

ORDER The immigration judge's decision is affirmed. 

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