Matter of Badalamenti

• Decision Date: 04 April 1988
• Docket Number: Interim Decision Number 3057,A-26280821.
• Citation: 19 I&N Dec. 623
• Parties: MATTER OF BADALAMENTI. In Exclusion Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

19 I&N Dec. 623

MATTER OF BADALAMENTI.

In Exclusion Proceedings.

Interim Decision Number 3057

A-26280821.

Board of Immigration Appeals.

Decided by Board April 4, 1988.

(1) An alien who is extradited to the United States and paroled for the purpose of prosecution does not automatically become an applicant for admission upon termination of parole.

(2) If the parole of an alien who has been extradited to the United States is terminated, he must be given a reasonable opportunity to depart unless there is evidence that he is an applicant for admission.

(3) An extradited alien's failure to depart from the United States within the 7 days granted by the district director does not by itself establish that the alien is an applicant for admission.

(4) Where an alien who is extradited to the United States denies that he is an applicant for admission, claims that he made every effort to depart within the time granted by the district director, and contends that the Government impeded his efforts to depart, the record will be remanded to the immigration judge to allow the alien to submit evidence regarding these matters.

(5) If upon remand it is established that the Government impeded the alien's efforts to depart, such evidence shall weigh against a finding that he was given a fair and reasonable opportunity to depart.

EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [8 U.S.C. § 1182(a)(19)]—Procured entry by fraud or willful misrepresentation of a material fact

Sec. 212(a)(20) [8 U.S.C. § 1182(a)(20)]—No valid immigrant visa

Sec. 212(a)(26) [8 U.S.C. § 1182(a)(26)]—No valid nonimmigrant visa

ON BEHALF OF APPLICANT: Lowell J. Gettman, Esquire, Fragomen, Del Rey & Bernsen, P.C., New York, New York.

Michael D. Patrick, Esquire, Campbell, Patrick & Chin, New York, New York.

ON BEHALF OF SERVICE: Jill H. Dufresne, Assistant District Counsel.

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

In a decision dated March 30, 1987, an immigration judge found Mr. Badalamenti excludable on all three grounds set forth above, denied his request to withdraw his application for admission, and ordered that he be excluded and deported from the United States. Mr. Badalamenti has appealed. The record will be remanded for further proceedings.

Mr. Badalamenti is a male alien, a native and citizen of Italy. On March 29, 1985, he was extradited by Spain to the United States pursuant to an extradition treaty for the purpose of criminal prosecution. The Government paroled him pursuant to section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(5) (1982). Mr. Badalamenti was acquitted of all criminal charges on March 2, 1987. His bail was exonerated on March 9, 1987, but he remained in custody at the request of the Government pursuant to section 235(b) of the Act, 8 U.S.C. § 1225(b) (1982).

By letter dated March 10, 1987, the district director notified Mr. Badalamenti that his parole was revoked because the criminal proceedings for which he was paroled were completed. The district director advised Mr. Badalamenti that he was free to leave the United States at his own expense and directed him to notify the district director's office by the close of business on Friday, March 13, 1987, of arrangements made for his departure on or before March 17, 1987, to a country that was willing to accept him into its territory. He further informed Mr. Badalamenti that his failure to comply with the directive would result in the immediate institution of exclusion proceedings pursuant to sections 235 and 236 of the Act, 8 U.S.C. §§ 1225 and 1226 (1982), and his deportation pursuant to section 237 of the Act, 8 U.S.C. § 1227 (1982). Mr. Badalamenti failed to comply with the district director's directive, and on March 17, 1987, a Notice to Applicant for Admission Detained for Hearing before Immigration Judge (Form I-122) was issued and served noting that he appears to be excludable under sections 212(a)(19), (20), and (26) of the Act.

On March 17, 1987, Mr. Badalamenti filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York on the ground that he was being unlawfully detained by the Immigration and Naturalization Service. The petition was dismissed without opinion on March 27, 1987. An exclusion hearing was held before an immigration judge on or about March 24, 1987.

On appeal, Mr. Badalamenti contends that he was extradited to the United States pursuant to a treaty of extradition between the United States of America and Spain, and that that treaty accords him 45 days' freedom from custody before exclusion proceedings may be instituted against him.

We find no merit in this contention. We agree with the immigration judge that the treaty of extradition between the United States and Spain does not preclude these proceedings. The provision of the treaty according 45 days within which to depart protects against detention, trial, or punishment for criminal offenses other than those for which the subject was extradited, and exclusion proceedings are not criminal proceedings. Matter of Exilus, 18 I&N Dec. 276 (BIA 1982); cf. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

Mr. Badalamenti also contends that he has been improperly placed in exclusion proceedings because he is not an applicant for admission into the United States. He explains that he was brought to the United States against his will and that he has not sought and does not seek admission into...