Matter of Z----
| Decision Date | 05 October 1993 |
| Docket Number | A-72969131,Interim Decision Number 3208 |
| Citation | 20 I&N Dec. 707 |
| Parties | MATTER OF Z---- In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated July 19, 1993, an immigration judge found that the applicant was not properly in exclusion proceedings under section 235(b) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b) (1988), and he therefore terminated the proceedings. The Immigration and Naturalization Service appealed. The appeal will be dismissed.
The applicant is a male native and citizen of the People's Republic of China. He arrived at the shores of the United States in the early morning hours of May 24, 1993, on a cargo ship with about 200 compatriots. He came ashore with no proper entry documents and was apprehended later in the morning of the same day somewhere in the vicinity of Fort Point, the Presidio, and the Golden Gate National Recreation Area in San Francisco, California. The Service issued him a Notice to Applicant For Admission Detained for Hearing Before Immigration Judge (Form I-122), alleging that he was excludable under section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (Supp. IV 1992).
During the proceedings below, the applicant, through counsel, moved for termination of the exclusion proceedings on the ground that he had made an entry into the United States, and that exclusion proceedings were therefore improper. The immigration judge granted the motion, and the Service appealed.
The sole issue on appeal is whether the applicant made an "entry" into the United States, as that term is interpreted under the Immigration and Nationality Act. If he did so, exclusion proceedings, which are instituted to prevent or control such entry, are not authorized and must be terminated.
Section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1988), defines "entry" for immigration purposes, in relevant part, as "any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntary or otherwise." This Board, in addressing the more specific questions of whether a given case involves an "entry," has formulated a more precise definition of this term. Under our precedent decisions, an "entry" 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 Patel, 20 I&N Dec. 368 (BIA 1991), and cases cited therein.
In the instant case, the Service contends that no entry has been shown. The Service argues, first, that the alien's intent to evade inspection at the nearest inspection point has not been established, and second, that the applicant was, at all relevant times prior to debarkation and thereafter, under official restraint. We disagree.
The circumstances of the applicant's arrival in the United States are established by the documents submitted by both the applicant and the Service. The applicant himself did not testify.
The applicant came to the shores of the United States aboard a vessel known as the Pai Sheng, a cargo ship under the Honduran flag with a crew of 10 and a "cargo" of passengers numbering about 200. At around midnight on the night of May 23, 1993, the Pai Sheng took an irregular course outside of normal lanes of shipping and slipped beneath the Golden Gate Bridge in San Francisco, California. As the vessel made its unauthorized approach, it was radar-monitored by an officer of the United States Coast Guard. The officer observed that the vessel was behaving in a suspicious manner and notified other federal agencies in an attempt to get an investigation underway. Meanwhile, the Pai Sheng apparently moored at the first available dock inside the bay, a dock at Fort Point which was no longer in general use.
The passengers on board the Pai Sheng disembarked at the dock at approximately 1 a.m. on Wednesday, May 24, 1993. At the time of debarkation there were no officers of the Service nor officers of any other enforcement agency on hand at the dock. Thus, the applicant's debarkation went unwitnessed by any United States official. Upon debarkation, the aliens entered the Golden Gate National Recreation Area, Fort Point, and the Presidio, a military base area abutting the Golden Gate Bridge. At this time the area was closed to the public, as it typically was from dusk until after dawn.
At about 1:18 a.m., information from a Coast Guard officer regarding the Pai Sheng was relayed to an officer of the United States Department of the Interior Park Police. The Coast Guard officer advised that the vessel was suspicious and had docked at or near the Old Coast Guard Station on the south side of San Francisco Bay, close to the Golden Gate Bridge.1 However, when the Park Police officer arrived, the vessel was already outbound, passing under the Bridge. No one was at or near the dock.
A short time later, between 1:18 a.m. and 1:45 a.m., United States Military Police from the Presidio stopped a pickup truck at a considerable distance from the docks to investigate a vehicle equipment violation. In the truck were either seven or nine undocumented Chinese immigrants. According to the Park Police report, the driver of the truck indicated that he had picked up the aliens a mile or 2 back, by prearrangement, because he had been promised payment in exchange for delivering them to a location in downtown San Francisco.
At approximately 2 a.m., a Park Police officer observed 50 to 150 more suspected undocumented aliens in a Fort Point parking lot. They were entering a dozen or so private vehicles. Upon the officer's approach, the subjects fled the vehicles and scattered into the nearby woods and hills, while most of the drivers sped away. Four of the vehicles remained and apparently were abandoned. The officer called for assistance, and a coordinated enforcement operation began.
The record reflects that by 10 a.m. on May 24, 1993, officers of the United States Park Service Police, the Golden Gate Bridge Police, Military Police from the Presidio military base, and security officers from a local United States Veterans Administration Hospital had placed in custody 170 of the former passengers of the Pai Sheng.
The record further reflects that the aliens apprehended during the foregoing operation were not all apprehended in the same place, but were broadly dispersed. A United States Department of the Interior Park Police Incident Report, which was submitted for the record by both parties, states that the "subjects were rounded up from as far away as the Great Meadow, Lincoln Park, Clement St. and the Golden Gate Bridge." Further, 12 aliens from the Pai Sheng were apprehended by the San Francisco Police Department after people in residential areas of the city had complained of aliens in their back yards. Another Pai Sheng passenger was apprehended at a coffee shop in San Francisco three blocks south of the boundary of the Presidio.
The applicant and the other former passengers of the Pai Sheng were taken to a building beneath the Golden Gate Bridge to be held until the Immigration and Naturalization Service could effect their immigration processing. The Service issued the applicant a Form I-122, thus commencing these exclusion proceedings. The applicant was alleged to be excludable as an intending immigrant without proper entry papers, in violation of section 212(a)(7)(A)(i)(I) of the Act.
Later the same day, the Coast Guard intercepted the Pai Sheng about 45 miles from San Francisco. The vessel returned to the Bay. According to the affidavit of a Service officer submitted for the record, the vessel's crew were questioned, and some of them agreed to give statements. These statements, and the circumstances under which the ship had operated, indicated to the officer that the Pai Sheng was involved in an organized smuggling operation in which 200 or more Chinese immigrants were brought to the United States and delivered without immigration papers, in a manner similar to that of other smuggling operations in the officer's recent experience.
On the basis of the foregoing, the immigration judge found that the applicant had actually and intentionally evaded inspection, had proceeded into the United...
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