Matter of Patel
| Decision Date | 09 August 1991 |
| Docket Number | A-70442716.,Interim Decision Number 3157 |
| Citation | 20 I&N Dec. 368 |
| Parties | MATTER OF PATEL. In Exclusion Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
At the conclusion of an exclusion hearing conducted on November 16, 1990,1 an immigration judge found the applicant excludable under section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(19) (1988), as an alien who had sought to enter the United States by fraud, and under section 212(a)(20) of the Act, as an immigrant not in possession of a valid unexpired immigrant visa. The applicant appealed from the immigration judge's decision and requested oral argument before the Board of Immigration Appeals.2 The record will be remanded for further proceedings. The applicant's request for oral argument is denied.
While the factual record before us is incomplete, the underlying basis for the immigration judge's determination of excludability is not in dispute. The applicant is a male of indeterminate identity. He arrived in the Houston Intercontinental Airport on September 7, 1990, and presented an Indian passport and an Employment Authorization Card (Form I-688A) to the immigration inspector. The immigration inspector processed the applicant and stamped his passport: "ADMITTED, SEP 07 1990, CLASS: I-688A." The applicant was not referred to secondary inspection and proceeded directly to customs for an inspection of his baggage and personal effects.
In the customs area of the airport, the applicant presented his passport and customs form to the customs officer. Finding the applicant's passport suspicious, the customs officer returned the applicant to the immigration section to verify his documentation. A computer check revealed the applicant's passport to be a fraudulent one, and he was accordingly served with a Notice to Applicant for Admission Detained for Hearing before Immigration Judge (Form I-122) and placed in exclusion proceedings.
At an exclusion hearing conducted on September 28, 1990, the applicant claimed that he had "entered" the United States, as that term is defined for the purposes of the immigration laws, and should therefore have been placed in deportation proceedings. The immigration judge continued the proceedings to allow the parties to submit briefs in support of their respective positions. At the reconvened hearing, the immigration judge determined that the applicant was properly in exclusion rather than deportation proceedings based on Correa v. Thornburgh, 901 F.2d 1166 (2d Cir. 1990), a recent decision that arose out of events that took place at the same Houston airport in 1982. In that case, the United States Court of Appeals for the Second Circuit found that an alien who had been inspected and admitted by an immigration officer but was later apprehended with a concealed controlled substance in the customs area of the airport had not "entered" the United States within the contemplation of the immigration laws. The sole issue before us in the present case is whether the applicant is properly in exclusion proceedings.
Aliens seeking admission who do not appear to an immigration officer to be clearly and beyond a doubt entitled to enter the United States are placed in exclusion proceedings under section 235(b) of the Act, 8 U.S.C. § 1225(b) (1988). On the other hand, aliens who have effected an entry into the United States may only be removed in deportation proceedings under section 242(b) of the Act, 8 U.S.C. § 1252(b) (1988). Resolution of this case thus requires a determination of whether the applicant "entered" the United States as that term is defined under the immigration laws.
Section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1988), generally defines "entry" as "any coming of an alien into the United States, from a foreign port or place or from an outlying possession." This Board has fashioned a more precise definition of entry, requiring: (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 Ching and Chen, 19 I&N Dec. 203, 205 (BIA 1984) (citing Matter of Pierre, 14 I&N Dec. 467, 468 (BIA 1973)); see also Matter of Yam, 16 I&N Dec. 535 (BIA 1978); Matter of Loulos, 16 I&N Dec. 34 (BIA 1976).
In Correa v. Thornburgh, supra, the Second Circuit initially described the inspection and admission procedures at Houston Intercontinental Airport in 1982 as follows:
At the Houston airport, all processing at that time of arriving international passengers for customs, agriculture and immigration purposes was conducted in a restricted area closed to the general public commonly referred to as the "Customs Enclosure.". . .
Each incoming passenger was initially processed at a primary inspection station by a single Customs or INS inspector, who was cross-designated in order to act for both agencies. After preliminary questioning, the primary inspector would refer the passenger to a "red area" within the "Customs Enclosure" for a more intensive inspection, or to a "`green area" still within the "Customs Enclosure." "Green area" referrals were permitted to proceed to the exit control station but were still subject to random selection for the more intensive "red area" inspection. The final stage in the inspection process occurred at the point of exit when the passenger presented the Customs declaration to the exit control officer. The exit control officer could either accept the declaration and permit the passenger to depart the "Customs Enclosure," or direct the passenger to the "red area" for further inspection.
Id. at 1168 (footnote omitted).
The court went on to describe the circumstances following Ms. Correa's arrival at the airport following an international flight. A customs officer, acting that day on a "cross-designated" basis as an immigration inspector at one primary inspection station noticed Ms. Correa, who was standing in line at another primary inspection station, and suspected her of being a drug courier. Although she successfully passed through primary inspection, officers of the United States Department of Agriculture operating in the customs area prevented Ms. Correa from proceeding to the exit control station and referred her to an area designated for "secondary inspection." After an agricultural inspection in that area, the customs officer who initially observed Ms. Correa searched her luggage and discovered a large amount of cocaine. The Immigration and Naturalization Service subsequently sought to exclude her under section 212(a)(23) of the Act, as an alien who an "immigration officer knows or has reason to believe" is or has been an illicit trafficker in controlled substances.
Ms. Correa contended that she had effected an "entry" into the United States when she was permitted to pass through the primary inspection station at the Houston airport and maintained that she consequently was improperly in exclusion proceedings. She cited our decision in Matter of V----Q----, 9 I&N Dec. 78 (BIA 1960), in support of her claim. The alien in that case, after inspection by an immigration official at the Santa Fe Street Bridge inspection station in El Paso, Texas, was told to "go ahead." When the alien had proceeded some 75 feet past the immigration inspection point, a bystander notified the inspecting officer that the alien was a prostitute. The immigration officer then apprehended the alien for further inspection, which this Board held could be conducted only in deportation proceedings.
The Second Circuit, however, applying our caselaw as synthesized in Matter of Pierre, supra, found that Ms. Correa had not effected an "entry." The court concluded that it was clear that she had never satisfied the third prong of the Pierre test, i.e., "freedom from official restraint." From her arrival in the United States to the moment of her arrest, she "remained in a...
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