O

16 I. & N. Dec. 344
CourtBoard of Immigration Appeals
DecidedJuly 1, 1977
DocketID 2614
StatusPublished
Cited by5 cases

This text of 16 I. & N. Dec. 344 (O) is published on Counsel Stack Legal Research, covering Board of Immigration Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O, 16 I. & N. Dec. 344 (bia 1977).

Opinion

Interim Decision #2614

MATTER OF 0, et al.

In Exclusion Proceedings A-22432000, et al. Decided by Board May 12, 1977, and September 14, 1977

(1) This proceeding involves 126 aliens who were applicants for admission to the United States. They were brought to Guam on United States military aircraft as part of the evacuation of Vietnam. While they were not natives of Vietnam, they had Vietnamese spouses and had Vietnamese children. Most had been employed by U.S. Government contractors. The Service contends. that these aliens were not paroled into the United States but that their inspection was deferred. The applicants contend they were paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act and therefore entitled to prior notice before exclusion proceedings were begun. (2) It is the opinion of the Board that these applicants were paroled. The procedure employed in bringing them to the United States was no different from the procedure used to bring aliens to the United States who concededly were paroled under section 212(d)(5) of the Act. The correspondence written by the Attorney General and Commis- sioner to the Congress would appear not to limit the use or the parole authority solely to natives of Vietnam. Congress, in defining the term "refugee" used a definition broad enough to encompass the present applicants which supports the conclusion that th000 applicants were not to be treated differently than native–born Vietnamese. The appli- cants were persons who had lived in Vietnam. The majority of them had been em- ployed at one time or another by U.S. Government contractors. They were removed from Vietnam with the express consent of the United States Government. These facts taken together lead to the conclusion that the applicants were paroled into the United States. (3) Under 8 C.F.R. 212.5(b) an alien is entitled to written notice of termination of parole prior to the institution of exclusion proceedings. These aliens were paroled; however, the Service did not provide them with written notice of termination of their parole prior to the institution of exclusion proceedings, as required by 8 C.F.R. 212.5(c). The Service motion for reconsideration of the Board's decision terminating the exclusion proceed- ings is denied. EXCLUDABLE:

Order Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant—no visa

ON BEHALF OF APPLICANTS: ON BEHALF OF SERVICE: Jack Wasserman, Esquire Paul C. Vincent, Esquire Wasserman, Orlow, Ginsberg Sr Rubin Chief Trial Attorney 1707 H Street, N. W. Washington, D. C. 20006

Before the Board May 12, 1977

Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

344 Interim Decision #2614 These cases are before us on appeals from decisions of an immigration judge finding each applicant excludable from the United States under section 212(a)(20) of the Immigration and Nationality Act. Each appli- cant was brought to the United States territory of Guam by United States authorities in the course of evacuating various persons from the Repub- lic of Vietnam in April and May 1975. The total number of these evacuees numbered approximately 130,000. Exclusion hearings were conducted on September 8 and 9, 1975. In each hearing, several appli- cants appeared before the immigration judge simultaneously. In all, six hearings are involved concerning 126 aliens. In turn, these matters were consolidated on appeal and argued as one case before the Board. In each instance, the applicant was brought to Guam on military aircraft. It appears that some of the applicants had "affidavits" ' from the United States Embassy; others had had their passports stamped by an embassy official. In either case, the possession of the affidavit or the stamped passport was sufficient documentation to enable each applicant to board United States military aircraft or vessels and to be brought to United States territory. None of the applicants, which was apparently the case with all alien evacuees regardless of nationality, had visas in their possession. All of the applicants were born in countries other than Vietnam, a fact which seems to underlie these exclusiqon proceedings. In each ease, the immigration judge found that the applicants had not been paroled into the United States; that their inspection had merely been deferred and that they therefore were excludable under section 212(a)(20) of the Act. The applicants contend that they were paroled into the United States pursuant to section 212(d)(5) of the Act, and therefore were entitled to a written notice of revocation of parole prior to the institution of exclusion proceedings. See 8 C.F.R. 212.5. No such notice was given since the Service took the view that parole had not been granted. The applicants also argue that even if they were not paroled, the Government is equitably estopped from excluding and deporting them since they were brought here by the United States and with full knowledge that they lacked visas at that time. Finally, the applicants argue that any exclusion order is ineffective since they can- not, in any event, be returned to the Republic of Vietnam, which they argue is the "country from whence they came" and the only country to which they may be returned under section 236 of the Act. _ In none of the six cases does the immigration judge's decision contain a detailed discussion with respect to each applicant. The transcripts also

The nature of these affidavits is not entirely clear from the record. However, it appears that there were forms normally used by the Embassy for matters other than parole.

345 Interim Decision #2614 do not reveal much individual information. However, all but one 2 of the 126 aliens who are involved were interviewed by Service officers prior to the exclusion hearings. The transcripts of these interviews were introduced into evidence in each instance. 3 Although the status and backgrounds of the majority of the applicants is similar, there are enough differences to warrant fuller discussion. For convenience, each joint hearing will be referred to separately by the name of one alien. The immigration judge's decision in Ho Joo Wong concerns 33 aliens. Thirty-two are Koreans and one is a native and citizen of India. All but four of this group had worked, at least at one time, for United States Government contractors. Among the four who did not is the Indian native, who was self-employed, and one Korean who was a seaman, but who lived in Saigon. Seven of this group are married to Vietnamese women. One other, although married to a Vietnamese, had not divorced his Korean wife. Five other applicants admitted to "common-law" rela- tionships with Vietnamese women. They had been in Vietnam for a period of nine years, eight months, to two years. The large majority had arrived in Vietnam prior to 1970. Several had initially entered Vietnam as members of the Army of the Republic of Korea and had remained after discharge and, ultimately, taken employment with United States contractors. Four indicated they were permanent residents of Vietnam, or intended to become such. In Yonk Sik Ko, 37 aliens are involved. Five are Chinese and the remainder are Koreans. Of this group, eleven Koreans had Vietnamese wives and, in most instances, children. One Chinese had a Vietnamese wife. One other Chinese applicant had two children who were born in Vietnam, but whose wife was a Chinese citizen.

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