Matter of G----

• Citation: 20 I&N Dec. 764
• Decision Date: 08 December 1993
• Docket Number: Interim Decision Number 3215,A-72761974
• Parties: MATTER OF G---- In Exclusion Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 764

MATTER OF G----

In Exclusion Proceedings

Interim Decision Number 3215

A-72761974

Board of Immigration Appeals

Decided by Board December 8, 1993

(1) An alien with no colorable claim to lawful permanent resident status is properly in exclusion proceedings where he fails to satisfy his burden of proof that he has effected an "entry" into the United States. Matter of Z----, 20 I&N Dec. 707 (BIA 1993), followed.

(2) The determination of whether an alien has effected an entry into the United States is a matter appropriately litigated in exclusion proceedings.

(3) For purposes of section 101(a)(13) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13) (1988), an "entry" into the United States requires: (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2) (a) inspection and admission by an immigration officer, or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint. Matter of Z-, supra, followed.

(4) The mere crossing into the territorial waters of the United States, whether detected or undetected, has never been held to constitute "physical presence" in this country "free from official restraint."

(5) The grounding of a vessel 100 or more yards off shore with its passengers facing a hazardous journey to land does not of itself constitute an entry into the United States.

(6) In the case of the Golden Venture, an alien will be found to have been "free from official restraint" if he establishes that he was among the first of the ship's occupants to reach the shore, that he landed on a deserted beach, or that he managed to flee into a neighboring community.

(7) In contrast, an alien who was escorted off the Golden Venture, pulled from the water by rescue personnel, or who landed in the cordoned-off area of the beach after it was secured will not be found to have been "free from official restraint," as his movements were restricted to the immediate vicinity of the beach that was cordoned-off and controlled by the enforcement officers of the various governmental organizations present at the site to prevent the ship's occupants from absconding.

(8) In a case where there is no clear evidence of the facts determinative of the entry issue, the case ultimately must be resolved on where the burden of proof lies.

(9) Where there is no evidence that an alien, who arrives at other than the nearest inspection point, deliberately surrenders himself to the authorities for immigration processing, or that, once ashore, he seeks them out, voluntarily awaits their arrival, or otherwise acts consistently with a desire to submit himself for immigration inspection, actual and intentional evasion of inspection at the nearest inspection point may be found.

(10) Pending a decision of the Attorney General on asylum and withholding of deportation claims premised on coercive family planning policies of another country, the Board will continue to follow Matter of Chang, 20 I&N Dec. 38 (BIA 1988), as precedent in all proceedings involving the same issues.

(11) To prevail on a claim that "extrajudicial" sources compromised the impartial and unbiased nature of an exclusion proceeding, an alien must show how the immigration judge's decision was affected or how he was prejudiced by these "outside influences."

EXCLUDABLE: Act of 1952—Sec. 212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(I)]— No valid immigrant visa

Sec. 212(a)(7)(B)(i)(I) [8 U.S.C. § 1182(a)(7)(B)(i)(I)]— Nonimmigrant without valid passport

Sec. 212(a)(7)(B)(i)(II) [8 U.S.C. § 1182(a)(7)(B) (i)(II)]—No valid nonimmigrant visa or border crossing card

ON BEHALF OF APPLICANT: Timothy J. Shultis, Esquire Crabbs & Frey 14 Center Square Hanover, Pennsylvania 17331

ON BEHALF OF SERVICE: Jack Penca Regional Counsel

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

On August 17, 1993, an immigration judge denied the applicant's motion to terminate the instant exclusion proceedings, found him excludable as charged on the basis of his admissions, and denied his applications for asylum and withholding of deportation. The applicant has appealed. The appeal will be dismissed and the request for oral argument before this Board is denied. 8 C.F.R. § 3.1(e) (1993).

The applicant is a 29-year-old married, male native and citizen of the People's Republic of China, who attempted to enter the United States on June 6, 1993. The applicant was taken into custody by the Immigration and Naturalization Service and detained for exclusion proceedings. He was charged as an excludable alien under sections 212(a)(7)(A)(i)(I), (B)(i)(I), and (B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(7)(A)(i)(I), (B)(i)(I), and (B)(i)(II) (Supp. IV 1992).

At the ensuing hearing, the applicant moved for termination of the exclusion proceedings. Arguing that an entry into the United States had been made within the meaning of section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1988), he provided a testimonial account of his arrival into the United States and several newspaper articles describing the events of the early morning hours of June 6, 1993. The Service objected to the motion and countered with its own evidence of the events of that morning in the form of a Service examiner's "Memo to File" and an affidavit of its Special Agent, Sal Alosi. The immigration judge denied the applicant's motion and proceeded to hear testimony on his applications for asylum and withholding of deportation. Ultimately, the immigration judge found the applicant excludable as charged on the basis of his concessions and denied his applications for the requested forms of relief. This appeal followed.

The applicant's first challenge on appeal concerns the propriety of these exclusion proceedings.

To determine whether the instant proceedings brought under section 236 of the Act, 8 U.S.C. § 1226 (1988 & Supp. IV 1992), are proper, we must first resolve the issue of whether the applicant "entered" the United States within the meaning of section 101(a)(13) of the Act, for if an "entry" occurred, the question of the applicant's continued presence here may only be adjudicated in deportation proceedings commenced under section 242(b) of the Act, 8 U.S.C. § 1252(b) (Supp. IV 1992).¹

GENERAL FACTS OF SHIP'S ARRIVAL

The record reflects the applicant arrived in the United States on Sunday, June 6, 1993, aboard a cargo freighter named the Golden Venture. The applicant was one of a cargo of some 300 passengers when the vessel, piloted by a crew of 13 Indonesian nationals, ran aground on a sandbar off the coast of New York. The grounding took place 100 to 200 yards offshore of the Fort Tilden military reservation located on the Rockaway Peninsula in the Gateway National Recreation Area of Queens, New York.

According to the record, at about 1:45 a.m. on that Sunday, two officers of the United States Department of Interior Park Police were patrolling the Gateway National Recreation Area when they observed the distressed ship and a number of its passengers swimming in the water or running on the beach. The officers spotted life preservers bobbing in the water and heard people yelling.² At 1:58 a.m., the officers placed an emergency call for help to the New York City Police Department and other authorities and then proceeded to assist several of the ship's passengers out of the water.

The Coast Guard dispatched boats and helicopters to the scene of the reported shipwreck to observe and rescue persons aboard the disabled vessel.

At 2:19 a.m., officers from the New York City Police Department arrived on the beach at Fort Tilden; 2 minutes later, the New York City Fire Department was alerted. Police canine units and New York State police helicopters equipped with searchlights also were deployed to search for passengers on shore or still in the water. Officers from the various law enforcement agencies involved—the New York City Police Department, the Park Police, the Jacob Riis Park Police, and the Coast Guard—waded into the harbor to assist people to shore.

During these early morning hours, a portion of the Fort Tilden beach—about 1/4- to 1/2-mile-long and extending 600 yards inland from the water line—was ultimately cordoned off and controlled by enforcement officers of these various organizations to prevent passengers who reached shore from leaving the area.

According to newspaper accounts of several passengers interviewed, pandemonium erupted on board when the ship grounded. Passengers began spewing out of the cargo hold of the ship, where they had been forced to stay during their 3-month-long voyage. They crowded the ship's deck, only to be told by the ship's crew to jump overboard.

Over the next several hours as rescue personnel assembled in the area, about 200 passengers fled the ship by leaping blindly into the surf or descending a ladder on the side of the boat. Ignoring police and Coast Guard pleas to remain on the vessel, many swam and waded to shore clutching plastic bags of belongings while others used plastic jugs as makeshift floats.

An armada of small vessels, rafts, and cutters fished many of these 200 out of the 53-degree waters and brought them to shore.³ Other passengers managed to reach dry land on their own only to be apprehended on the beach or within the perimeter of the cordoned-off area. Many of the ship's occupants who swam to shore suffered from hypothermia and simply collapsed on reaching the beach. A few, however, eluded capture by fleeing through the thick-brushed dunes into the surrounding neighborhoods. Several of these survivors were reported seen knocking on the doors of homes in several nearby communities, offering money in exchange for the use of a telephone. Three men, for example, were found in a construction site in the neighboring town of Breezy Point after having offered a resident $100 to use his telephone. Local...