MATTER OF CENATICE, et al.
A-20209069, -070, -071, -072, -074, -079, -081, -082, -084, -087, -088, -090, and -099
In Exclusion Proceedings
Decided by Board March 28, 1977
Interim Decision #2571
This proceeding involves 13 Haitians who applied for admission at Miami, Florida, January 5, 1976, as refugees. They were subsequently detained for an exclusion hearing during which time they submitted applications for asylum under 8 C.F.R. 108.1 and108.2 which were denied. At the hearing they were found excludable under section 212(a)(20) of the Immigration and Nationality Act and ordered deported, and they appealed.- No entry is made when an alien is taken into custody upon his arrival in this country. Subsequent proceedings are properly in exclusion. Relief under section 243(h) of the Immigration and Nationality Act is not available. See Matter of Pierre, 14 I. & N. Dec. 467 (BIA 1973).
- An applicant for refugee status must conform to existing immigration law. If applying for admission, he must apply to the District Director for asylum under
8 C.F.R. 108 ; and if he has already entered the country, he must apply in deportation proceedings under section 243(h) of the Act. Applicants’ claims under Articles 32 and 33 of the Protocol Relating to the Status of Refugees may not be asserted in an exclusion proceeding. - Aliens who have not made entry into the United States do not enjoy the protection of the United States Constitution and cannot claim entitlement to the constitutional rights of due process, equal protection, or right to counsel.
EXCLUDABLE:
Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant—no visa (all applicants)
ON BEHALF OF APPLICANTS: Susan E. Perry, Esquire
El Paso Legal Assistance Society
109 North Oregon Street
El Paso, Texas 79901
BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members
In a decision dated January 13, 1977, the immigration judge found the applicants excludable under section 212(a)(20) of the Immigration and Nationality Act and ordered them deported from the United States.
Applicants, 13 natives and citizens of Haiti, arrived by boat at Miami, Florida, on January 5, 1976, and applied for admission as refugees. Apparently because the applicants did not possess valid immigrant visas as required by section 212(a)(20), they did not appear to the immigration officer to be “clearly and beyond a doubt” entitled to enter the United States and were detained under the provisions of section 235(b) of the Act.1 We note, however, that despite the explicit requirement of
The applicants’ claim for refugee status centered on allegations that they had departed Haiti after a “narrow escape from the secret police” the previous October, had spent two and a half months in Cuba while their boat was being repaired, and then left for the United States to seek political asylum. Apparently the applicants submitted requests to the District Director in Miami for admission as refugees, as required by
On appeal, the applicants first maintain that, at their exclusion hearing, the immigration judge was required to consider their request to withhold deportation pursuant to section 243(h) of the Immigration and Nationality Act, and to determine whether they qualified as “refugees” under Articles 1 and 33 of the Protocol. As support for this position, counsel for the applicants cites the recent case of Sannon v. United States, Case No. 74-428-CIV (S.D. Fla. February 17, 1977), in which, under circumstances similar to the present case, the court concluded that the Immigration and Nationality Act authorizes an immigration judge, in an exclusion proceeding, to consider evidence concerning an alien‘s claim for asylum under the Protocol. Although it is not entirely clear from the opinion, apparently the court concluded that the aliens did not have a right to assert, at an exclusion hearing, claims under section 243(h) of the Act.6 Thus, it appears under the narrow holding of the Sannon case that the court determined section 243(h) is not applicable to an exclusion hearing, but only that a Protocol claim must be heard.
As to the applicability of section 243(h) to exclusion proceedings, the courts and the Board have long held that such relief is clearly limited to deportation proceedings. Leng May Ma v. Barber, 357 U.S. 185 (1958); Matter of Pierre, 14 I. & N. Dec. 467 (BIA 1973). In Leng May Ma v. Barber, supra, the Supreme Court concluded that an alien seeking admission to the United States who is ineligible for entry is not “within the United States” and therefore not entitled to the benefits of section 243(h).7 The Court went on to point out:
For over half a century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States. (Citations omitted.) It seems quite clear
that an alien so confined would not be “within the United States” for purposes of §243(h). . . . 357 U.S. at 188.
In Matter of Pierre, supra, the Board held, under circumstances similar to the present case, that no entry is made when an alien is taken into custody upon his arrival in this country, that subsequent proceedings are properly in exclusion, and that section 243(h) relief is unavailable. See also United States ex rel. Tom We Shung v. Murff, 176 F. Supp. 253 (S.D.N.Y. 1959), aff‘d 247 F.2d 667 (2 Cir. 1960). The proper procedure for bringing an application for asylum is contained in
That portion of the applicants’ claim pertaining to the availability, at an exclusion proceeding, of a refugee claim made under Articles 1 and 33 of the Protocol, presents a more difficult question, but one which ultimately must also fail.
Article 1 defined a refugee as a person who, as a result of events occurring before January 1, 1951,
. . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Article 33 is as follows:
Prohibition of Expulsion or Return (“Refoulement“)
1. No Contracting State shall expel or return (“refouler“) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
In Matter of Dunar, 14 I. & N. Dec. 310 (BIA 1973), we found, in interpreting the effect of Articles 32 and 33 of the Protocol on immigration law, that the United States Senate “in giving its advice and consent to accession to the Protocol did not contemplate that radical changes in the existing immigration laws would be effected.”8
The Board‘s position with regard to the availability of the Protocol in an exclusion proceeding was recently supported by the Fifth Circuit Court of Appeals in the case of Pierre v. United States, 547 F.2d 1281, (5 Cir. 1977). There the court held that the Protocol left intact the Service‘s procedure for determining refugee status and that:
It is clear from the terms of the Protocol itself that an applicant for asylum must fit the definition of bona fide refugee before he can take relief from the terms of the Protocol. Because the Protocol contained no procedures for this determination, and because Congress saw fit at the time of accession to leave existing procedures unchanged, we conclude that it was the intent of Congress that existing procedures be followed.
Therefore, the applicants’ protestations to the contrary, it is clear that existing immigration procedure affords those applying for refugee status adequate opportunity to have their status decided before a District Director. Their contentions that section 243(h) and the Protocol require that their claims be determined at an exclusion proceeding are clearly without merit.
The applicants next claim that to not allow their refugee claims to be heard in exclusion proceedings is a violation of due process and their right to equal protection under the Fifth Amendment of the United States Constitution, and that their exclusion and subsequent deportation to Haiti would constitute cruel and unusual punishment under the Eighth Amendment. It is clear, however, that it is not within the province of this Board to pass upon the constitutionality of the statutes it administers, but rather is solely within the power and capacity of the United States courts to declare them unconstitutional. Matter of Pierre, supra; Matter of L—, 4 I. & N. Dec. 556 (BIA 1951).9
From the applicable case law, it would appear that just as the constitutional rights to due process and equal protection are denied to aliens applying for admission to the United States10, so also is the constitutional right to counsel. At any rate, section 292(b) of the Act grants a right to counsel to aliens in an exclusion proceeding but “at no expense to the Government.” It should be noted, however, that right to counsel may not apply to preliminary investigations. See Matter of S—, 8 I. & N. Dec. 409 (BIA 1959). In the present case, the statements in question pertained to the applicants’ refugee status and were made to immigration officers at the time of their arrival in the United States. Such statements were not in any way used against them at their exclusion hearing, at which time counsel had been secured, but rather pertained solely to the issue of their refugee status. As pointed out, supra, the District Director‘s decision on that issue is not appealable to this Board.
Lastly, counsel argues that the applicants were denied due process and that administrative regulations were violated when their cases were not continued pending investigation of their refugee status by the State Department and when they were denied the right to transfer their exclusion hearing to Miami, Florida. As to the refugee claim, we are again without jurisdiction to consider the issue.
The appeal is dismissed.
ORDER: The appeal is dismissed.