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(2) An alien who escapes from Service detention does not acquire the same status as an alien who еvades Service inspection by entering the United States surreptitiously and, hence, may not be accorded the procedural benefits of deportatiоn proceedings.
This case was last before us on October 6, 1981, when we dismissed a Service appeal from the immigration judge‘s termination of the exclusion proceedings against the applicant. We agreed with his conclusion that the applicant had entered the United States without inspection and was therefore, subject to deportation proceedings instead of exclusion proceedings. The Service has submitted a motion to reconsider our October 6, 1981, decision on this case. The Service motion to reconsider will be granted and the appeal will be sustained.
The applicant is a native and citizen of Chinа who applied for admission to the United States as a nonimmigrant visitor for pleasure on
Our October 6, 1981, decision applied a four element test prescribed in Matter of Pierre, 14 I&N Dec. 467 (BIA 1973), for determining when an alien has made an “entry” into the United States and is therefore subject to deportation and not exclusion proceedings. We then stated that the term “entry” is defined in section 101(a)(13) of the Act,
The applicant physically crossed the United States border at St. Paul where he was detained. He later reached New York City by absconding for two days from a Service detention facility. In Matter of A-, 9 I&N Dec. 356 (BIA 1961), and Matter of A-T-, 3 I&N Dec. 178 (BIA 1948), we had cоncluded that escaping from Service detention while awaiting exclusion proceedings constituted an entry which required deportation proceedings instead. We reached the same conclusion in this case applying the Pierre test. We concluded that when the applicant absconded, he temporarily achieved freedom from Service restraint, and had made an entry into this country since he was already physically present here. We distinguished two cases citеd by the Service in support of its position because there the aliens in question had been paroled into the United States. See Vitale v. INS, 463 F.2d 579 (7 Cir. 1972); Klapholz v. Esperdy, 201 F.Supp. 294 (S.D.N.Y. 1961), aff‘d, 302 F.2d 928 (2 Cir. 1962).
However, in its motion to reconsider, the Service has submitted additional arguments which we find convincing. The Service initially contends that the test prescribed in Matter of Pierre, supra, is not met here because the applicant did not evade inspection but rather, was inspected and detained pending exclusion proceedings pursuant to section 235 and 236 of the Act,
The Service also directs our attention to the case of Luk v. Rosenberg, 409 F.2d 555 (9 Cir. 1969), where an alien had been found excludable, paroled into this country and had absconded for three years. After he was located, his parole was revoked. The court concluded that the alien did not make an “entry” when his parole was revoked, despite his managing to remain for several years after the parole revocation. Congress did not intend to improve such an аlien‘s status, from that of an applicant seeking admission, to that of an alien who has entered the United States and is subject only to deportation procеedings in order to be removed from this country. Luk v. Rosenberg, supra at 558.1
The Service also points out distinguishing factors in the two cases we previously cited in support of our October 6, 1981, decision, Matter of A-, supra; and Matter of A-T-, supra. In Matter of A-T-, the applicant had been notified of an exclusion hearing when he first applied for entry. He returned later that day, applied again for entry and was admitted. Consequently, there had been two separate applications for entry and his successful second attempt clearly constituted an “entry” since he had been admitted into this country. In Matter of A-, the alien had been detained on board a ship as a stowaway pursuant to section 273(d) of the Act,
It is well settled that when an alien is paroled into the United States pursuant to section 212(d)(5) of the Act,
We reach the same result when, instead of being pаroled, the alien is placed in detention within the United States territory, pursuant to
ORDER: The motion to reconsider is granted and the appeal is sustained.
FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing opinion and the entry of a new dеcision.