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November 24, 1982

In the Matter of the Application of IMANE PHELISNA for a Writ of Habeas Corpus

The opinion of the court was delivered by: NICKERSON


 NICKERSON, District Judge

 Petitioner Imane Phelisna, a native of Haiti, applied for a writ of habeas corpus pursuant to 8 U.S.C. § 1105a(b), which provides in pertinent part that "any alien against whom a final order of exclusion has been made" may obtain judicial review by habeas corpus proceedings.

 On December 1, 1981 an immigration judge entered an order of exclusion and denied petitioner's application for asylum. The Board of Immigration Appeals (the Board) dismissed her appeal on July 8, 1982. She was detained by the Immigration and Naturalization Service (the Service) until paroled. She is thus in the constructive custody of the Service. Cf. Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir. 1982).

 Petitioner arrived without a visa in the United States on July 5, 1981, in a boat carrying some two hundred Haitians, who disembarked on a Florida beach near Miami. A report of the officers of the Public Safety Department of Dade County, Florida, shows that they apprehended the Haitians on Rickenbaker Causeway one quarter of a mile south of "Sundays Restaurant" and turned them over to the Service.

 On July 28, 1981, the Service, claiming that petitioner had made no "entry" into the United States, instituted exclusion proceedings against her pursuant to 8 U.S.C. § 1226. When the hearing began on September 2, 1981, petitioner's counsel moved to convert it into one for "deportation" -- technically, expulsion -- on the ground that petitioner had "entered" the United States before being apprehended. Petitioner testified that she had arrived by boat, entered the United States on July 5, 1981, and did not know where she was. The immigration judge, who announced at the inception of the hearing that he would permit only "several questions" of petitioner and would limit "severely" the testimony, refused to subpoena the arresting officer, announced that "the burden is on the applicant" to establish the impropriety of exclusion proceedings, and denied the motion to convert the hearing into one for deportation.

 When the exclusion hearing was resumed on December 1, 1981, petitioner's counsel moved for reconsideration of the motion to change the proceeding to one for deportation and offered in evidence "a police report from Miami, Dade County." The immigration judge denied the motion for reconsideration, declined to accept the report in evidence, declined an offer of proof as to what the evidence would be, and found petitioner excludable under 8 U.S.C. § 1182(a) (20). After the hearing the immigration judge denied asylum and ordered petitioner excluded.

 Petitioner appealed to the Board, which dismissed the appeal, holding that (1) petitioner had the burden of showing that she had made an "entry"; (2) intentional evasion of inspection is an element of "entry"; and (3) petitioner had "failed to prove" that element. The present petition followed, asking that petitioner "be restored to a deportation proceeding."

 In order to put the issues in context it is useful to note that the immigration laws have long made a distinction between those aliens who have come to the United States seeking admission and those "in" the United States after an "entry," irrespective of its legality. Leng May Ma v. Barber, 357 U.S. 185, 187, 2 L. Ed. 2d 1246, 78 S. Ct. 1072 (1958). The Immigration and Nationality Act preserves the distinction. Those seeking admission are subjected to "exclusion proceedings" to determine whether they "shall be allowed to enter or shall be excluded and deported." 8 U.S.C. § 1226(a). Aliens once they have made an "entry" are subject to "expulsion" if they fall within those categories of aliens who may be "deported" by the Attorney General. 8 U.S.C. § 1251. Proceedings for expulsion are commonly referred to as "deportation proceedings." As will appear, Congress and the courts have conferred on aliens who have made an "entry" rights in addition to those accorded aliens who have not yet entered.

 The government contends that petitioner is "excludable" under 8 U.S.C. § 1182(a) (20), which provides that among the aliens who "shall be excluded from admission into the United States" are those who when they apply for "admission" do not have a valid visa or other entry document. Petitioner contends that when she landed on the beach she had made an "entry" and should not be "excluded" but is entitled to be deported under 8 U.S.C. § 1251(a) (1), which provides that an alien shall be "deported" who "at the time of entry" was within a class of aliens "excludable by the law existing at the time of such entry." The term "entry" is defined in 8 U.S.C. § 1101(a) (13) to encompass, so far as pertinent, "any coming of an alien into the United States, from a foreign port or place, . . . whether voluntarily or otherwise."

 It may well make a difference to petitioner whether she is excluded or deported. If excluded, she will be sent back to Haiti whence she came. If deported, she must be deported to a country designated by her, provided it will accept her, unless the United States Attorney General concludes that deportation to that country would prejudice the United States. 8 U.S.C. § 1253(a). Moreover, if she is deportable, the Attorney General could, in his discretion, permit her to depart voluntarily. 8 U.S.C. § 1254(e).

 In the light of all these considerations the government's contention that the case is moot has no merit. The controversy is real and substantial. See Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41, 81 L. Ed. 617, 57 S. Ct. 461 (1937).

 Petitioner contends that she made an "entry," by "coming . . . into the United States" from a foreign place within the meaning of 8 U.S.C. 1101(a) (13). She urges that "entry" occurred when she was present in the United States free from restraint. Quite patently the statute cannot be read to mean that mere presence in the United States is enough to show an entry. The inspection stations at which the United States determines whether aliens are admissible are per force inside the nation's borders. Congress could not have meant that an alien had come "into" the United States when he arrived at one of the usual points where the government is prepared to process applications for admission.

 But if the alien crosses the border where there are no inspection facilities, for example, somewhere along the Mexican or Canadian borders or the coast line of the United States, common sense suggests that ordinarily the alien has "entered" the United States. Even under those circumstances the cases have made an exception where the alien has established that he had an intent to be inspected. Thus, in Thack v. Zurbrick, 51 F.2d 634 (6th Cir. 1931), aliens, long time residents of the United States, returned to Poland for a visit without obtaining certificates entitling them to reentry here within a year. They came back across the Canadian border and headed for the nearest inspection station at Newport, Vermont. On arrival at the station they were arrested and charged with illegal entry. Later they were ordered deported. The court held that an alien who "merely follows the ordinary path from the international line to the nearest inspection point and presents himself for inspection" has not made an "entry" so as to be guilty of "an offense for which Congress intended he should be sent to his former foreign residence and forbidden ever to try to return to ...

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