LOULOS
(2) Tinder the circumstances, an exclusion prneeecliug was the proper forum for this case because applicant failed to meet his burden under
EXCLUDABLE:
Act of 1952—
ON BEHALF OF APPLICANT: Jack Wasserman, Esquire, 1707 “H” Street, N.W., Washington, D. C. 20006
ON BEHALF OF SERVICE: George Indelicato, Appellate Trial Attorney
The applicant is a 24-year-old alien, a native and citizen of Greece. He last arrived in the United States on August 18 or 19, 1976, at New York City. Inspection was deferred pursuant to
On August 19, 1976, the applicant made a sworn statement to the Service (Ex. 2). In his affidavit, the applicant stated that he was a native and citizen of Greece who was “not in possession of any visa for the U.S.“; that he last entered the United States in January of 1970 as a crewman; that he remained in the United States until May of 1976; and that he then departed for Costa Rica. He indicated that he went to Costa Rica in order to obtain “an immigrant visa from an American consulate abroad“; and that after two and one-half months in Costa Rica, the Government of Costa Rica deported him to the United States. The applicant further stated that he arrived in the United States on a Pan American flight without a visa; and that the carrier desired that he proceed from the United States to Greece as an alien in transit without a visa. He indicated that he could not go to Greece because his passport had expired; but that he would have proceeded to Greece if he had a valid travel document.
At the hearing, the trial attorney and the applicant (through counsel) stipulated that the applicant last arrived in the United States at John F. Kennedy Airport located in New York City on August 18 or 19, 1976, as a passenger aboard Pan American Flight 542 after having boarded at San Jose, Costa Rica; and that the applicant was not admitted to the United States. The parties also stipulated that the applicant was born in Greece on April 15, 1952; that he is a citizen of Greece; that neither of his parents was ever a citizen of the United States; that the applicant had never been admitted to the United States as a permanent resident alien; and that at the time of his last arrival, the applicant did not present a visa, passport or travel document. Both parties further agreed that the applicant was deported from Costa Rica to the United States; and that the applicant has no close family ties in the United States. The immigration judge noted that, upon arrival in the United States, the applicant indicated that he had a $1,000 bank check made out to his order. Upon the request of the trial attorney and counsel for the applicant, the immigration judge announced that he would not consider the allegation contained in the notice of hearing (Ex. 1) to the effect that the applicant is likely to become a public charge.
Counsel contended at the hearing that the applicant was brought to the United States involuntarily by virtue of his deportation by the Government of Costa Rica; and that the applicant is not now applying for admission to the United States. The immigration judge noted that counsel for the applicant specifically declined to apply for a waiver of entry documentation, visa and passport. Counsel further contends that an alien who is involuntarily brought to the United States should be released from custody and be allowed to depart the United States
Counsel contends that the applicant did not effect an entry into the United States within the meaning of
In support of his contention that the applicant must be given the opportunity to voluntarily depart from the United States, counsel cites United States ex rel. Bradley v. Watkins, 163 F.2d 328 (2 Cir. 1947); United States ex rel. Paetau v. Watkins, 164 F.2d 457 (2 Cir. 1947); and United States ex rel. Sommerkamp v. Zimmerman, 178 F.2d 645 (3 Cir. 1949). In the Bradley case (a habeas corpus proceeding), the court held that an alien seized by the United States Navy in Greenland, brought to the United States against his will, and interned as an alien enemy for security reasons could not be deported as an “immigrant“—at lemaAt, not before he had been afforded an opportunity to depart voluntarily. The theory of the Bradley decision is that an alien brought here by agents of the United States against his will is not an “immigrant” within the meaning of the immigration laws. In the Sommerkamp case, the facts related to an alien who was seized by the United States Army in Guatemala at the outbreak of World War II, and brought to the United States against his will and interned for security reasons. The alien‘s internment was subsequently terminated, and he was given the opportunity to depart voluntarily but he did not do so. In a habeas corpus proceeding, the court held that the subsequent presence of the alieln in the United States was “voluntary,” and therefore he had made an “entry” and was subject to deportation as an immigrant. In the Paetau case (also a habeas corpus proceeding), the facts related to an alien who was deported to Germany by Guatemalan authorities and placed on an airplane bound for the United States. The Guatemalan
The rationale that has been consistently expressed by the courts is that an alien who is involuntarily brought to this country by agents of the United States is not considered to be an “immigrant” within the meaning of
Counsel‘s contention that Vassilios Loulos is not an applicant for admission is without merit. It is clearly implied in the applicant‘s present and past conduct that he is seeking admission to the United States. We find that the applicant resided in the United States unlawfully for more than six years before he voluntarily departed this country for Costa Rica in an improvident attempt to legalize his status by obtaining an immigrant visa. Further, we find that upon his arrival in the United States following his deportation from Costa Rica, the applicant had the freedom and the financial means to arrange for his transportation to Greece, his native country, but chose not to do so. Instead, he decided to remain in the United States. His statement that he did not go on to
At the time of his inspection, the applicant did not present any documentation which would entitle him to enter the United States. We conclude that an exclusion proceeding was the proper forum in this case. We further conclude that the applicant failed to sustain his burden under
ORDER: The appeal is dismissed.
Participating Members: Milhollan, Wilson, and Maniatis.