MATTER OF YAM In Deportation Proceedings A-15950259 Decided by Board May 30, 1978 (1) An alien does not effect an entry into the United States unless, while free from actual or constructive restraint, he crosses into the territory of the United States and is inspected and admitted by an immigration officer, or actually or intentionally evades inspection at the nearest inspection point. (2) An alien found floating in Niagara River, and brought by police while unconscious to a hospital in the United States where he was turned over to the Border Patrol, did not effect an entry. (3) Deportation proceedings ordered terminated as to alien found in Niagara River and brought into the United States while unconscious, since exclusion was the proper procedure. CHARGES: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entered without inspec tion Lodged: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—At time of entry, within one or more classes of aliens excludable by the law existing at the time of such entry, to wit, aliens who have been arrested and deported, consent to apply or reapply for admission not having been granted by the proper authority under section 212(a)(17) of the Act ON BEHALF OF RESPONDENT: Jules E. Coven, Esquire Lebenkoff & Coven One East 42nd Street New York, New York 10017 ON BEHALF OF SERVICE: BY: Maguire, Acting Chairman; Maniatis, Appleman, and Farb, Board Members This case presents an appeal from a decision of the immigration judge on September 29, 1977, finding the respondent deportable and ordering his deportation to Hong Kong on the charge contained in the Order to Show Cause and the charge contained in the Additional Charges. The appeal will be sustained. The respondent is a native and citizen of China, who last entered the United States in August 1977, allegedly without inspection by an immi gration officer. He had previously been deported from this country in 1965, 1969, and, following denial of his motion to reopen these proceedings in order to apply for withholding of deportation, again in June 1977. He failed to obtain permission from the proper authority last August to reapply for admission to this country after his third deportation two months earlier. About nine or ten o'clock on the evening of August 23, 1977, two fishermen discovered the respondent floating after dark in the Niagara River, near Lewiston, New York. They pulled him into their boat about 100 feet off the American shoreline. One of the fishermen, Kenneth Dunkin, testified that he did not know the exact location of the International Boundary Line, but that the respondent was then unconscious (Tr. p. 7). The two fishermen radioed ashore for assistance and were met at the dock by the Lewiston Chief of Police, who likewise did not know the exact location of the International Border (Tr. p. 17). The latter testified that the respondent was then semiconscious and being administered oxygen. He followed the ambulance to Mount St. Mary's Hospital, calling en route for a Border Patrol Agent to meet him there because he was suspicious of an illegal entry (Tr. p. 14). The Chief of Police also testified that he took custody of a black garbage bag that the alien had in his possession when rescued (Tr. p. 12). It contained inter alia a Hong Kong passport, driver's licenses from New York and New Jersey, and a "multitude of pictures" (Tr. p. 13). The Police Chief and the Senior Inspector first interviewed the respondent after he had been x-rayed and treated in the hospital's emergency room. The respondent allegedly was given the Miranda warning by the Senior Inspector (Tr. pp. 16, 19). The immigration judge, noting that the respondent refused to testify at the hearing on constitutional grounds, found that he was deportable on all the charges. In the absence of an application by counsel for any form of discretionary relief (Tr. p. 22), the immigration judge ordered that the respondent be deported to Hong Kong. The main thrust of counsel's contentions on appeal is that the respondent did not make an entry into the United States on August 23, 1977, and that the proper procedure herein should have been exclusion proceedings, rather than deportation proceedings. In the unusual circumstances of this case, we find that counsel's reliance upon our decision in Matter of Pierre, 14 I. & N. Dec. 467 (BIA 1973) was well-placed since there is a strong similarity in the facts of both cases. An alien does not effect an entry into the United States unless, while free from actual or constructive restraint, he crosses into the territory of the United States and is inspected and admitted by an immigration officer, or actually or intentionally evades inspection at the nearest inspection point. See Matter of Loulos, Interim Decision 2533 (BIA 1976); Matter of Pierre, supra, and cases cited therein. Freedom from official restraint must be added to physical presence before entry accomplished. See United States v. Vasilatos, 209 F.2d 195 (3 Cir. 1954); United States v. Lazarescu, 199 F.2d 898 (4 Cir. 1952). It can hardly be said that the respondent was free from official restraint when taken into custody since one witness testified that he was unconscious. Another witness stated that he was semiconscious and being administered oxygen. The respondent was in fact the victim of constructive restraint. Nor did the respondent consciously achieve physical presence within the geographical boundaries of the United States when he was the fortunate beneficiary of a humanitarian gesture by the two fishermen. The courts have also held, as pointed out at page 469 in Pierre, supra, that "no entry is made when the alien is taken into custody upon his arrival at an American port . . . ." See Klapholz v. Esperdy, 302 F.2d 928 (2 Cir. 1962), cert. denied 371 U.S. 891 (1962). The respondent has shown a blatant disregard for our immigration laws over a long period of time. Nevertheless, his rights in this instance must be protected even though his true intention may have been to enter the United States surreptitiously. His unproven motive for being in the Niagara River in the "pitch dark" (Tr. p. 9), therefore, can have no bearing on the issue of his physical condition at the moment he was taken into custody. We find that the respondent did not make an "entry" into this country, within the purview of section 101(a)(13) of the Immigration and Nationality Act, as amended. We agree with the contentions of counsel that these proceedings should have been held in exclusion. In view of the foregoing, we must conclude that the immigration judge was without jurisdiction to determine the issue of deportability. Accordingly, the appeal will be sustained and these proceedings ordered terminated. ORDER: The deportation proceedings are terminated. MATTER OF RAHMATI In Visa Petition Proceedings A-17019199 Decided by Board June 26, 1978 A determination by an immigration judge in rescission proceedings that an alien was accorded nonquota status as the spouse of a United States citizen by reason of a nonviable marriage does not preclude the alien under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. 1154(c), from obtaining immigrant status under a new visa petition since it does not follow from the fact that a marriage is nonviable that it was entered into for the purpose of evading the immigration laws. ON BEHALF OF PETITIONER: Pro se ON BEHALF OF SERVICE: George Indelicato BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members The United States citizen petitioner applied for immediate relative status for the beneficiary as her spouse under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b). The petition was approved on October 20, 1977. In a decision dated February 15, 1978, the District Director revoked approval of the petition on the ground that the beneficiary had previously been accorded immediate relative status as the spouse of a United States citizen by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws. The petitioner has appealed. The appeal will be sustained. The beneficiary, a 36-year-old native and citizen of Iran, married the petitioner in 1973. The record reflects that this was his second marriage to a United States citizen. The first occurred in 1967. On the basis of the 1967 marriage, the beneficiary was granted immediate relative status under section 201(b) of the Act as the spouse of a United States citizen, and his status was adjusted to that of a lawful permanent resident under section 245 of the Act, 8 U.S.C. 1255. On April 27, 1971, after proceedings under section 246(a) of the Act, 8 U.S.C. 1256(a), an immigration judge ordered the beneficiary's grant of status as a lawful permanent resident rescinded on the ground that the 1967 marriage was no longer viable when it was used as a basis for adjusting the beneficiary's status. Although the beneficiary and his spouse had lived together, and a child had been born to them, they had not lived together continously for more than a few months at a time and she had left him before his status was adjusted. The record reflects that she obtained a divorce on November 19, 1968. The District Director based his decision on section 204(c) of the Act, 8 U.S.C. 1154(c), which states that ". . . no petition shall be approved if the alien has previously been accorded a nonquota or preference status as the spouse of a citizen of the United States . . . by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws." The District Director apparently considered the prior decision of the immigration judge in the rescission proceedings to be a conclusive determination that the beneficiary's prior marriage to a United States citizen was entered into for the purpose of evading the immigration laws. This conclusion was er roneous. The section 204(c) decision is to be made on behalf of the Attorney General by the District Director in the course of his adjudication of the subsequent visa petition. Matter of Samsen, Interim Decision 2305 (BIA 1974). In making that adjudication, he may rely on any relevant evidence, including evidence having its origin in prior Service proceedings involving the beneficiary. This determination, however, is for the District Director to make, and he should not ordinarily give conclusive effect to the determinations made in the prior collateral proceedings. He should reach his own independent conclusion based on the evidence actually before him. See Matter of F-, 9 I. & N. Dec. 684 (BIA 1962). The record in this case does not support the District Director's conclusion that the beneficiary's prior marriage was entered into for the purpose of evading the immigration laws. The rescission determination dealt only with the viability of the marriage at the time when adjustment of status was granted. Section 204(c), however, goes to the underlying purpose of the marriage. Matter of Samsen, supra. We note, moreover, that the beneficiary and his spouse of that marriage apparently lived together as man and wife and had a child together. Thus, it does not appear that the marriage was entered into for the purpose of evading the immigration laws. We conclude, therefore, that the District Director's determination regarding the beneficiary's previous marriage is erroneous. Accordingly, the petitioner's appeal will be sustained, and the District Director's decision will be reversed. ORDER: The appeal is sustained, and the approval of the visa petition is reinstated. |