Interim Decision #2446 

MATTER OF BARRETO 

In Exclusion Proceedings 

A-20648543 

Decided by Board November 3, 1975 

Where, a short time after applicant• was preinspected by an immigration officer at Toronto, Canada and an admission stamp placed on her immigrant visa and in her 

passport, the officer returned and cancelled both admission stamps and instructed her to 

report to the Chicago Office of the Service upon arrival in the United States, following 

which exclusion proceedings were instituted, the determination of her admissibility in 

exclusion proceedings, rather than deportation proceedings, was proper since applicant 

had not achieved physical presence within the geographical boundaries of the United 

States at the time the admission stamps were cancelled and, thus, had not made an 

"entry" within the meaning of section 101(a)(13) of the Immigration and Nationality 

Act. 

EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Inunigrant not in 

possession of valid immigrant visa. 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Ralph M. &belly, Esquire Paul C. Vincent 

100 N. LaSalle Street Chief Trial Attorney 

Chicago, Illinois 60602 

This case presents a Service appeal from an order of an immigration 

judge terminating these exclusion proceedings. The appeal will be sus 

tained and the applicant will be ordered excluded and deported from the 

United States. 

The applicant is a 29-year-old married female alien, native and citizen 

of Mexico, w:ao last sought admission to the United States at Chicago, 

Illinois on March 4, 1974 following a preflight inspection at Toronto, 

Canada on the same date. Final inspection was deferred, and on April 5, 

1974 the applicant received notice that she was being held in exclusion 

proceedings on the ground that her immigrant visa was allegedly obtained on the basis of a marriage to a United States citizen which was 

not bona fide for immigration purposes (Exh. 1). 

The pertinent facts as they were adduced at the hearing are not in 

dispute and can be summarized as follows: The applicant presented 

herself to an immigration officer in Toronto, Canada for inspection on 

March 4, 1971 in possession of an immigrant ivisa issued by the United 

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States consul in Toronto on that date. The applicant's Mexican passport 

(Exh. 7) and immigrant visa (Exh. 2) were initially stamped for her 

admission to the United States as a class "IR-1" (immediate relative, 

spouse) immigrant and she was instructed to be seated in a waiting area 

for her anticipated departure flight to Chicago.' A short time later the 

immigration inspector, who had retained the applicant's immigrant visa, 

returned to the waiting area, took her passport back, and told - her to 

wait. At this point the inspector told the applicant that she should 

report to the Chicago office of the Immigration and Naturalization 

Service on the next day. The record indicates that in the intervening 

time the inspector had become suspicious of the validity of the marriage 

on which the applicant's visa was based, had crossed out the admission 

stamps in her passport and visa with an "X" and had inscribed the 

notation "stamped in error" next to both stamps (Exh. 2 & 7). Following 

her arrival in the United States the applicant was placed 'in these 

exclusion proceedings. 

At the hearing counsel moved to terminate on the grounds that the 

act of the immigration inspector in placing the admission stamps in the 

applicant's visa and passport and instructing her to await her flight to 

the United States constituted an admission of the applicant into the 

United States. Counsel maintains that the mere crossing out of the 

admission stamps was ineffective to revoke them and that the applicant's right to be in the United States may thus only be questioned in 

deportation, rather than exclusion, proceedings. 

The immigration judge, in reliance on our decision in Matter of V—Q—, 

9 I. & N. Dec. 78 (BIA 1960), accepted counsel's contention and ordered 

the proceedings terminated. We find Matter of V—Q—, supra, to be 

distinguishable and must reverse the immigration judge's decision. 

Matter of V—Q—, supra, involved a female alien who sought admission 

as a returning resident at a pedestrian inspection point located in El 

Paso, Texas. She produced her alien registration receipt card (Form 

1-151) and was told to "go ahead," or words to that effect. In the next 

instant a bystander indentified her as an alleged prostitute, whereupon 

the admitting immigration officer sought to recall her for further inspection. At that point the alien had proceeded some 75 or 100 feet beyond 

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the check point before the officer succeeded in taking her into custody. 

Further questioning followed and she was subsequently subjected .to 

exclusion proceedings. On • appeal this Board held that the original 

jurisdiction hold and exclude an applicant for admission depends upon 

the custody of his person acquired at the time of his arrival, and this 

jurisdiction continues until the question of his right to be admitted is 

determined ' in his favor, at which point the proceedings before the 

examining immigration officer must be considered closed, Matter of 

V—Q—, supra: Thus, in V—Q—'s case, jurisdiction to examine her as an 

applicant for admission ceased when the immigration inspector communicated his finding of admissibility to her by telling her to "go ahead." 

At that point. her "admission" had been accomplished and the alien could 

not be recalled for questioning within the exclusion process. Her right to 

remain in the United . States could properly' be determined only in 

deportation proceedings, Matter of V—Q—, supra. 

The crucial distinction between Matter of V—Q—, supra, and the present case lies in the fact that here the alien was recalled while still on 

foreign soil, owing to the peculiar mechanism of "preflight inspection," 

whereas V—Q— had actually crossed into the territorial limits of the 

United States when the immigration inspector sought to recall her.' In 

Matter of Pierre, 14 I. & N. Dec. 467 (BIA 1973), we surveyed the cases 

which have interpreted the term "entry," as defined in section 101(a)(13) 

of the Immigration and Nationality Act. 3We concluded that, for an 

"entry," there had to be (1) a crossing into the territorial limits of the 

United States, free from restraint, and (2) inspection and admission by 

an immigration officer, or (3) actual and intentional evasion of inspection 

at the nearest inspection point. 

This appli2ant was inspected by an immigration officer, and an admission stamp was placed on her visa and in her passport. However, the 

applicant had not achieved physical presence within the geographical 

boundaries of the United States, at the time when those admission 

stamps were cancelled.' Thus, she had not made an "entry" into the 

United States, and was properly placed in exclusion proceedings when 

her admissibility was questioned. 

Looking at the regulation which authorizes preflight inspection 

procedures, 8 CFR 235.5(b) (see footnote 1), we find nothing that is 

inconsistent with our position. This provision states that ". . the 

examination and inspection. . . required by the act and final determina2 See 8 CFR 235(b), which is set forth in footnote 1. 

3Section 101{a)(13) of the Immigration and Nationality Act provides, generally, that the 

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

place or from an outlying possession. . . ." subject to certain exceptions. 

4 Because of the applicant's lack of physical prcoence within the UniLeci Mateo, the 

question of "freedom from restraint" was not involved. 

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tion of admissibility may be made. . . prior to. . . departure at the port 

or place in foreign contiguous territory. . . ." "Final determination of 

admissibility" is not the equivalent of an "entry." The "final determination of admissibility" in the preflight inspection process does not ripen 

into an "entry" until the alien physically enters the United States, 

Matter of Pierre, supra, and Matter of V—Q—, supra. 

Having therefore found the applicant to be properly in exclusion 

proceedings, we must turn to the question of her excludability on the 

ground alleged under section 212(a)(20) of the Act. We are persuaded 

that the applicant's own testimony establishes that the marriage on 

which her immediate relative immigrant visa is based is not bona fide for 

immigration purposes, since she admitted never haVing lived with her 

husband, never having consumated the marriage, and not even having 

seen or heard from him for a long period (Tr., p. 32). She stated that she 

is living in a husband and wife relationship with another man, who is the 

father of her child (Tr., p. 32). The applicant's immigrant visa is thus 

invalid and she is inadmissible under section 212(a)(20) of the Act. The 

decision of the immigration judge will be reversed and the folloWing 

order will be entered. 

ORDER: The Service appeal is sustained and the applicant is hereby 

ordered excluded and deported from the United States. 

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