Z
20 I. & N. Dec. 707 (1993)
Rule of Law:
An "entry" into the United States for immigration purposes requires physical presence within territorial limits, either inspection and admission or actual and intentional evasion of inspection at the nearest inspection point, and freedom from official restraint.
Facts:
- In the early morning hours of May 24, 1993, a male native and citizen of the People's Republic of China (the applicant) arrived on a cargo ship, the Pai Sheng, with about 200 compatriots.
- The Pai Sheng took an irregular course, slipped beneath the Golden Gate Bridge in San Francisco, California, and moored at an abandoned dock at Fort Point, not a designated port of entry, around midnight on May 23, 1993.
- At approximately 1:00 a.m. on May 24, 1993, the applicant and other passengers disembarked at the abandoned dock, unwitnessed by any U.S. official, and entered the Golden Gate National Recreation Area, Fort Point, and the Presidio, areas closed to the public at that time.
- Between 1:18 a.m. and 1:45 a.m., U.S. Military Police stopped a pickup truck containing several undocumented Chinese immigrants at a considerable distance from the docks; the driver stated he picked them up by prearrangement to deliver them downtown.
- Around 2:00 a.m., a Park Police officer observed 50 to 150 suspected undocumented aliens entering private vehicles in a Fort Point parking lot; upon the officer's approach, subjects fled into woods and hills, and most drivers sped away.
- By 10:00 a.m. on May 24, 1993, various law enforcement officers had apprehended 170 former passengers of the Pai Sheng from dispersed locations, including residential areas of San Francisco and a coffee shop three blocks south of the Presidio boundary, with about 30 others still at large.
- The Pai Sheng was involved in an organized smuggling operation to bring 200 or more Chinese immigrants into the United States without immigration papers.
Procedural Posture:
- An immigration judge (court of first instance) found that the applicant was not properly in exclusion proceedings under section 235(b) of the Immigration and Nationality Act and terminated the proceedings.
- The Immigration and Naturalization Service (appellant) appealed the immigration judge's decision to the Board of Immigration Appeals.
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Issue:
Is an alien considered to have made an "entry" into the United States for immigration purposes, thereby precluding exclusion proceedings, if they cross into U.S. territorial limits, intentionally evade inspection at a non-port of entry, and are free from official restraint, despite being in a federally controlled area?
Opinions:
Majority - Board of Immigration Appeals
Yes, an alien is considered to have made an "entry" into the United States for immigration purposes, thereby precluding exclusion proceedings, if they physically cross into U.S. territorial limits, intentionally evade inspection at a non-port of entry, and are free from official restraint, despite being in a federally controlled area. The Board affirmed the immigration judge's finding that the applicant met the three elements of an "entry": (1) physical presence (debarking onto U.S. land), (2) actual and intentional evasion of inspection (evidenced by the surreptitious landing, immediate flight, lack of engagement with authorities, and involvement in a smuggling operation), and (3) freedom from official restraint. The Board rejected the Service's argument that the applicant was under "constructive restraint" due to radar surveillance and landing in a federally controlled, restricted area. It reasoned that surveillance alone is not restraint if the alien is free to move, and that entering a federally controlled area for non-immigration reasons does not automatically constitute official restraint, especially when many passengers successfully fled the area and mingled with the general population. The Board distinguished this case from situations where aliens hide within designated inspection areas or remain confined to restricted zones, finding that the applicant here avoided processing altogether and fled into a National Recreation Area.
Analysis:
This case clarifies the critical definition of "entry" in U.S. immigration law, distinguishing it from an attempted entry that would trigger exclusion proceedings. By establishing that an alien can effect an "entry" even by surreptitious landing and evasion, provided they achieve freedom from official restraint, the Board broadens the circumstances under which deportation proceedings (which afford greater due process protections) are required instead of exclusion proceedings. This decision underscores the importance of the "freedom from official restraint" prong, emphasizing actual liberty of movement over the mere fact of being in a federally monitored or restricted geographical area. Future cases will likely rely on this interpretation to determine the proper jurisdictional basis (exclusion vs. deportation) for individuals apprehended shortly after irregular border crossings, especially when they manage to move beyond immediate control points.
