SHIRDEL
(2) The use of fraudulent Turkish passports by Afghan nationals in order to avail themselves of the TRWOV privilege was an integral part of their material misrepresentation in attempting to enter the United States.
(3) Afghan nationals who came here from a foreign port in order to submit applications for asylum attempted an “entry” into the United States within the meaning of section 101(a)(13) of the Act,
(4) An alien who circumvents the orderly procedures for obtaining refugee status abroad will be denied the discretionary relief of asylum in the absence of strong countervailing equities to overcome this serious adverse factor.
(5) Whether or not an applicant in exclusion proceedings is excludable under section 212(a)(19) of the Act is not determinative as to the issue of the discretionary relief of asylum. Matter of Salim, 18 I&N Dec. 311 (BIA 1982), clarified.
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
The applicants appeal from the May 17, 1983, decision of the immigration judge finding them excludable under section 212(a)(19) of the Immigration and Nationality Act,
The applicants’ additional excludability under section 212(a)(20) of the Act,
The burden in exclusion proceedings is upon the applicant for admission to establish that he is not inadmissible under any provision of the Immigration and Nationality Act. See section 291 of the Act,
[a]ny alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact.
The Attorney General has held that the first clause of section 212(a)(19), relating to documents, is both prospective and retrospective, but the second clause of the statute, relating to seeking entry into the United States, is prospective only. Matter of M-, 6 I&N Dec. 752 (BIA 1955); Matter of M-, 6 I&N Dec. 149 (BIA, A.G. 1954). Consequently, an alien whose fraud or material misrepresentations relate to the procurement of documents is forever barred from admission, unless he obtains a waiver.1 On the other hand, a fraud or misrepresentation in connection with an entry not related to the
The applicants contend that they are not excludable under section 212(a)(19) because they did not commit any fraud or willful misrepresentation to a United States official to cause the issuance of a visa or documentation. See Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975); Matter of Sarkissian, 10 I&N Dec. 109 (BIA 1962); Matter of Box, 10 I&N Dec. 87 (BIA 1962); Matter of L-L-, 9 I&N Dec. 324 (BIA 1961). We closely scrutinize the factual basis for a possible finding of excludability under the first clause of section 212(a)(19) for fraud in the procurement of entry documents since such a finding perpetually bars an alien from admission. Matter of Healy and Goodchild, supra; compare Matter of M-, 6 I&N Dec. 752 (BIA 1955).
We conclude that a finding of excludability under the first clause of section 212(a)(19) of the Act cannot be sustained. The applicants’ intentional misstatements to airline officials concerning their intent to proceed through the United States to Canada and their fraudulent use of Turkish passports procured to obtain passage to this country as TRWOV aliens were material misrepresentations within the meaning of section 212(a)(19) of the Act. See Matter of S- and B-C-, 9 I&N Dec. 436 (BIA 1960; A.G. 1961); cf. Suite v. INS, 594 F.2d 972 (3d Cir. 1979). Yet, their use of the passport and statements to airline officials were not made in connection with the procurement of a visa or their documentation and did not involve misrepresentation before officials of the United States Government. See Matter of Kai Hing Hui, supra; Matter of Sarkissian, supra; Matter of Box, supra; Matter of L-L-, supra. Similarly, there is no evidence that the applicants made material misrepresentations or committed fraud in connection with their applications for refugee status. See United States v. Fedorenko, 449 U.S. 490 (1981). Consequently, we find that the applicants are not excludable under the first clause of section 212(a)(19) of the Act as aliens who sought to procure or who have procured a visa or other documentation by fraud or by willful misrepresentation of a material fact.
However, we find the applicants excludable under the second clause of section 212(a)(19) for seeking to enter the United States by fraud or a material misrepresentation. See Matter of M-, 6 I&N Dec. 752 (BIA 1955); Matter of M-, 6 I&N Dec. 149 (BIA, A.G. 1954). Our decisions in Matter of Box, supra; Matter of L-L-, supra; Matter of Sarkissian, supra; and Matter of Kai Hing Hui, supra,
In United States v. Kavazanjian, 623 F.2d 730 (1st Cir. 1980), the court held that if an alien adopts the TRWOV device solely for the purpose of reaching the United States and submitting an asylum application without any intention of pursuing the remainder of the journey, it constitutes a fraud on the United States. The TRWOV device is designed to facilitate international travel by permitting aliens travelling between foreign countries to make a stopover in the United States without presenting a passport or visa. See section 212(d)(4)(C),
Pursuant to section 101(a)(15)(C) of the Act,
The applicants clearly intended to enter the United States. This was their ultimate goal. They chose not to wait abroad for a refugee visa. Instead, their first step for eventually entering this country as refugees was to apply for asylum when they arrived in the United States on February 5, 1983. They needed to be physically present in this country in order to submit such an application. Yet, they could not fly here legally because they did not have visas and were precluded from obtaining TRWOV status as Afghan nationals. They avoided the
Section 101(a)(13) of the Act,
We also agree with the immigration judge‘s denial of their application for asylum as a matter of discretion, even though he found that they had a well-founded fear of persecution in their native Af
An asylum applicant seeks the favorable exercise of discretion. Consequently, as with all such discretionary applications, an applicant has the burden to establish that the favorable exercise of discretion is warranted. Matter of Salim, supra; Matter of Seda, 17 I&N Dec. 550 (BIA 1980); Matter of Salmon, 16 I&N Dec. 734 (BIA 1978); Matter of Rojas, 15 I&N Dec. 492 (BIA 1975); Matter of Arai, 13 I&N Dec. 494 (BIA 1970). The critical factor for denying the applications for asylum is that by using fraudulent passports they improperly bypassed the orderly procedures prescribed for obtaining refugee status abroad. The record reflects that the applicants were sold the airplane tickets and documents which they used to board an airplane bound for the United States by an organized ring of smugglers. We have in the past considered it a strong negative factor to enter the United States with the aid of a professional smuggler because of the threat it presents to the enforcement of our immigration laws. Matter of Rojas, supra.
The number of Afghan refugees admitted into the United States must fall within the ceiling of 5,000 allocated by the President to Middle East refugees. Therefore, the State Department, Bureau of Human Rights and Humanitarian Affairs, recommended in its advisory letter that the asylum applications be denied for policy considerations since the applicants misused our immigration laws to gain an advantage over all other similarly situated Afghan refugees who are following the established procedures for legally immigrating to the United States.
We have weighed all the equities and conclude that the applications for asylum were properly denied in the exercise of discretion. Walai v. INS, 552 F. Supp. 998 (S.D.N.Y. 1982); Matter of Salim, supra. To grant asylum to someone who reaches our shores aided by a ring of smugglers, after he had already escaped from the country where he reasonably feared persecution, would only encourage others to likewise bypass the orderly procedures prescribed for immigrating as a refugee. The applicants should not be placed ahead of all the other similarly situated Afghan refugees. Their only relatives in this country are other applicants for asylum. Their contention that being denied asylum could result in an unjust result because the mother and daughter are not in detention and are also applicants for asylum is illogical. If the mother and daughter
Finally, the applicants erroneously contend that they cannot be deported to Pakistan unless Pakistan agrees to their resettlement there. See Walai v. INS, supra. Under section 7 of the Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, 95 Stat. 1611, the applicants can ultimately be deported to any country which will accept them. See Walai v. INS, supra; Matter of Salim, supra, n.1.
ORDER: The appeal is dismissed.