Matter of Accardi, Interim Decision Number 2206
| Decision Date | 04 June 1973 |
| Docket Number | A-5170719,Interim Decision Number 2206 |
| Citation | 14 I&N Dec. 367 |
| Parties | MATTER OF ACCARDI In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal from an order of an immigration judge dated September 19, 1972, finding the applicant excludable under the provisions of section 212(a)(23) of the Immigration and Nationality Act. The appeal will be dismissed.
Applicant is a 70-year-old married male alien, a native of Italy. He became a naturalized citizen of the United States in 1945. He was denaturalized in 1953. It has been verified that the applicant is now stateless (Ex. 12).
In a decision dated August 18, 1955, the applicant was found deportable pursuant to section 241(a)(4) of the Act, as an alien who had been convicted of a crime involving moral turpitude within five years after entry. On August 18, 1955, the Board dismissed the appeal from this decision. A suit for a declaratory judgment was filed in the United States District Court, District of Columbia, on August 23, 1955, which suit was dismissed by stipulation. Applicant was arrested on the basis of an indictment filed on August 18, 1955 with the United States District Court, Southern District of New York, charging him with the sale and possession of narcotics and conspiring to sell narcotics. On September 28, 1955, applicant failed to appear for trial, his bail bond of $75,000 was forfeited, and a bench warrant was ordered. His immigration bond of $5,000 was declared breached on October 12, 1955. A warrant for his deportation was issued by the Service on May 10, 1956. However, applicant was located in Sicily, having left the United States by boat on March 1, 1956.
Under authority of a Presidential warrant issued in connection with extradition proceedings, applicant arrived in the United States on November 12, 1963, by air, in the custody of United States narcotic agents. The Immigration Service prepared a Form I-94, which states: "Paroled INDEFINITELY Per Authority of NERO to custody of Geo BELK, US Narcotics, NY." On August 24, 1964, after trial, he was convicted in the United States District Court for the Southern District of New York of sale and possession of narcotics and conspiring to sell narcotics. He was sentenced to five years on each of three counts running consecutively and fined $16,000. The Service detainer notice to the Federal House of Detention, New York, dated September 3, 1964, reads, "alien paroled into United States for prosecution section 212(d)(5)." On April 4, 1972, applicant was released from his imprisonment at the Federal penitentiary, Atlanta, Georgia. On April 14, 1972, he was paroled for the purpose of reporting to the Service at Newark, New Jersey and was served with Form I-122, notifying him that he was being detained for a hearing before an immigration judge pursuant to the provisions of section 235(b) of the Act because it appeared that he might be excludable under section 212(a)(23) of the Act. On the same date, he was reparoled indefinitely pending conclusion of the hearing in exclusion proceedings.
We reject counsel's contention that the Attorney General is authorized to parole only those who are applicants for admission. The power of Congress to determine the conditions under which aliens may enter and remain in the United States is beyond question, Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953); U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); Siu Fung Luk v. Rosenberg, 409 F.2d 555 (C.A. 9, 1969). The legislative history of the parole provisions of section 212(d)(5) of the Act reveals that they were enacted in compliance with a recommendation by the Attorney General that he be given the necessary authority to parole aliens for purposes which are in the public interest. Among the latter was "purposes of prosecution" (S.Rept. No. 1137, 82d Cong., 2d sess., pp. 12-13) — the very purpose for which parole was here used. See Matter of K----, 9 I. & N. Dec. 143 (BIA, 1959; A.G. 1961).
The applicant, in departing from the United States to Italy on March 1, 1956 while a deportation order was still outstanding, deported himself; section 101(g) of the Act. There is no dispute over the fact that the applicant returned to the United States involuntarily on November 12, 1963, pursuant to a Presidential warrant of arrest. At the time he arrived in the United States, he was not an applicant for admission. However, as it is empowered, the Service paroled the applicant for the purpose of prosecution and since he has never been free from restraint, he has never accomplished an entry into the United States, In re Dubbiosi, 191 F.Supp. 65 (E.D.Va., 1961); United States v. Vasilatos, 209 F.2d 195 (C.A. 3, 1954).
During the lengthy prison term served by the applicant, there was no necessity to serve him with a Form I-122 to detain him for an exclusion hearing. He was here in the United States against his will. However, upon his release from prison, it was determined, through counsel and from the applicant himself, that he did not wish to return to Italy. This clearly indicated that the applicant was interested in...
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