I agree with the government's position. In order to establish a lack of probable cause to believe that a violation of § 1324 has occurred, Defendant Darsan would have to convince this court that Defendant Ramkissoon was exempt from the visa and passport requirements of § 1181(a) as a nonimmigrant alien under one of the exceptions of § 1101(a)(15). See 8 U.S.C. § 1184 (b)("Every alien . . . shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101(a)(15) . . ..").
Since the Immigration and Nationality Act (the "Act") presumes that entering aliens do so as immigrants, a person seeking nonimmigrant status -- i.e., an alien seeking entry only for a limited time and purpose -- bears the burden of demonstrating that his or her asserted nonimmigrant status is bona fide. Jain v. Immigration and Naturalization Service, 612 F.2d 683, 686 (2d Cir. 1979), cert. denied, 446 U.S. 937 (1980). For the purpose of establishing lack of probable cause on his motion to dismiss the charge, Darsan would therefore need to show that Ramkissoon is generally eligible to enter the United States, that he has a residence in Canada which he has no intention of abandoning, that he intends to remain in the United States only temporarily, and that he intends in good faith and will be able to depart from the United States at the expiration of his temporary stay. Rosasco v. Brownell, 163 F. Supp. 45, 51 (E.D.N.Y. 1958); see also Jain, supra, 612 F.2d at 686.
Based on the information presented to the court in the affidavit in support of the complaint and at the hearing on the instant motion, I find that Darsan has failed to provide convincing evidence on this motion that Ramkissoon would meet his burden of establishing bona fide nonimmigrant status. On the contrary, the evidence tends to show that Ramkissoon was not generally eligible to enter the United States since, among other reasons, he knowingly presented false identification and was therefore excludable under § 1182(a)(6)(C)(i) as an alien seeking entry by fraud or willfully misrepresenting a material fact. The evidence further tends to show that Ramkissoon did not have a Canadian residence to return to, or at least that he would not have a Canadian residence as of November 20, 1992. Finally, the evidence tends to show that Ramkissoon intended to remain in New York City on a permanent basis.
Accordingly, I find that Ramkissoon has not sufficiently established his eligibility for nonimmigrant status for application of any waiver of the passport and visa requirements of the Act. I therefore find probable cause to believe that Darsan knew or recklessly disregarded the fact that Ramkissoon was an alien who had not received prior official authorization to enter the United States, and that Darsan consequently committed violations of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 371.
For the reasons set forth above, Defendant Darsan's motion to dismiss the charge is denied.
DATED: Buffalo, New York
January 7, 1993
Carol E. Heckman
United States Magistrate Judge
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