A

MATTER OF A—

Ill DEPORTATION Proceedings
A-12198196
Decided by Board June 2, and July 11, 1961
Deportation proceedings—Jurisdiction—Entry—Stowaway ordered detained on
board who escapes from vessel effects entry.
Where alien stowaway is ordered detained on hoard, later manages an escape
from the -vessel, and remains schore for nearly two yearn prior to appre-
hension,held: (1) jurisdiction to proceed under the detention order with-
out hearing has been lost, (2) subject has effected an "entry" into the
United States, and (3) his removal can be enforced only through deporta-
tion proceedings pursuant to section 242 of the Act.
CHARGES :

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]--Nonimmi-
grant crewman—Remained longer than permitted (withdrawn).
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1))—Excluda-
ble under section 212(a) (18)—Stowaway.

BEFORE THE BOARD
(June 2, 1961)
DISCUSSION : The case comes forward pursuant to certification
by the special inquiry officer of his order dated April 6, 1961, directing
that the proceedings be terminated.
The record relates to a native and citizen of Greece, 33 years old,
male, single, who last arrived in the United States at the port of
New York as a stowaway on the WIT Alida Gorthon on April 24,
1959. He had been discovered on board the vessel before it arrived
at the port of New York. Upon arrival, the respondent was in-
spected by an • immigrant insppetnr and was nrdarAd dalaine,d nn
board under section 212(a) (18). He was locked up in a cabin on
board the vessel which remained at the dock, but about four or five
hours later managed to escape from the vessel through a porthole.
The respondent has remained in the United States since April 25,
.1959, but was served with an order to show cause in expulsion pro-
ceedings on March •4, 1961.
The special inquiry officer's Order sets forth that the respondent
was excluded as a stowaway by the primary immigrant inspector
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without a formal exclusion hearing ; that section 273 (d) of tho Im-
migration and Nationality Act prohibits the referral of a stowaway
to a special inquiry officer for an exclusion hearing under section 235
of the Immigration and Nationality Act and provides that the alien
shall have no right of appeal under section 236. Despite the fact
that the respondent escaped and went ashore shortly after being
ordered detained on board, the special inquiry officer determined
that the respondent could he deported under the outstanding detain
and deport order and that jurisdiction did not lie with the special
inquiry officer under section 242 of the Immigration and Nationality
Act to proceed in expulsion proceedings. The special inquiry officer
is of the opinion that the respondent is not entitled to receive a
hearing in deportation proceedings and did not gain any additional
rights by getting ashore while the vessel was in the harbor and while
he was under the outstanding exclusion order. He cited no judicial
authority to support this opinion.
Section 273(d) of the Immigration and Nationality Act, 8 U.S.C.
1323(d), provides for penalties for railing to detain on board a.
stowaway until inspection, to detain him after inspection, or to de-
port him if so ordered by the immigration officer. The last sen-
tence of section 273(d) provides:
The provisions of section 235 for detention of aliens for examination before
special inquiry officers and the right of appeal provided for in section 236
shall not apply to aliens who arrive as stowaways and no such alien shall be
permitted to land in the United States, except temporarily for medical treat-
ment, or pursuant to such regulations as the Attorney General may prescribe
for the ultimate departure or removal or deportation of spell alien from the
United States.

As provided by the last sentence of subparagraph (d) of section
273, the entrant stowaway who is ordered detained on board and
deported by a primary inspector is not entitled to an exclusion hear-
ing before a special inquiry officer or to an appeal as provided in
sections 235 and 236 of the Act.' There appears to be a paucity
of judicial decisions regarding this last sentence of section 273(d),
The reported decisions relating to this section generally deal with
the penalty provisions against steamship owners for bringing in or
failing to detain or deport a stowaway. Nor do we quarrel with the
cases cited by the Service representative to the effect that the parole
of an excluded alien does not affect the status of the alien who is
still regarded as stopped at the border and not dwelling in the
United States, and has never "entered" the United StnteR within
the meaning of the law. 2

Cf. Matter of B—, 5-712.
2 Kaplan v. Tod, 267 U.S. 228 (19m).

357
 However, we think that neither the last sentence of section 273 (d)
of the Immigration and Nationality Act nor the cases relating to
exclusion and parole are applicable or relevant to the facts present
in this case. Here, the respondent, although ordered detained on
board as a stowaway, nevertheless effected his entry into the United
States. The term "entry" is defined in section 101(a)'(13) of the
Tmmigration and Nationality Act, 8 U.S.C. 1101(a) (13), as any
coming of an alien into the United States, from a foreign port or
place, whether voluntary or otherwise. In the case of United States
ex rel. Fink v. Tod, 3 it was held that when an alien arrives and ap-
plies for admission into the United Sttaes, he may be detained and
held without warrant until immigration officials have determined
whether he is entitled to admission; however, the original jurisdiction
to hold and exclude rests upon the custody of his person acquired at
the time of his arrival and this original jurisdiction continues
until the question of the right to be admitted has been determined
and the proceedings before the immigration officials closed. How-
ever, if the right to enter and remain in the United States has once
been acquired, then the alien could not thereafter have been de-
prived of that right without notice and an opportunity to be heard
and could not have been taken into custody except by a warrant. In
the Fink case, supra, the alien had merely been enlarged on bond
and at no time had he been completely discharged from custody.
There is no doubt that the original exclusion could have been re-
opened as long as the alien remained in the custody of immigration
officials.' Where an alien has been released from custody, jurisdic-
tion to exclude and deport has been lost and thereafter the alien's
right to remain in the United States can be determined only in
expulsion proceedings. 5
In the case of Leng May Ma v. Barber, 6 the Supreme Court ob-
served that our immigration laws have long made a distinction be-
tween those aliens who have come to our shore seeking admission
(such as the petitioner who had been excluded and paroled) and
those aliens who are within the United States after an entry, irre-
spective of its legality. In the latter instance the court has recog-
nized additional rights and privileges not extended to those in the
former category who are merely "on the threshold of initial entry."
The court then noted that for half a century it had held that de-
tention of an alien in custody pending determination of his ad-
31 F.2d 246, reversed on confession of ,, rror, 267 U.S. 571 (probably due to
effect of medical certification).
4 Wong Doom v. Cahill, 78 F.2d 301. (C.A. 9, 1935).

5 Matter of V—Q--, 9-78 (1960) ; United States ex re/. Tsclberentschansky v.

ShanghnesYy, Ch. , . No. 52 - 761 ( S.D. N.Y., Dec. 6, 1949) ; Ea parte Chin ,Shoe Wee,
272 Fed. 480 (D, Mass., 1921).
6 357 U.S. 185, 187 (1958).

358
missibility does not legally constitute an entry although the alien is
physically within the United States.
It can thus be seen from the cases that the elements of the reten-
tion of custody and control over the alien seeking entry into the
United States are determinative of the rights to exclude, without a
hearing, as provided by law. Once such custody and control are
lost, and the alien has effected an entry into the United States,
irrespective of the legality of such entry, then the original jurisdic-
tion to hold and exclude has been lost and thereafter the status of
the alien must be determined in expulsion proceedings.
In the instant case, there is no doubt that the respondent is illegally
in the United States. The case will be remanded for appropriate
disposition in expulsion proceedings.
ORDER: It is ordered that the case be remanded for hearing in
expulsion proceedings pursuant to section 242 of the Immigration
and Nationality Act and for such further action as may appear
appropriate.
BEFORE THE BOARD
(July 11, 1961)

DISCUSSION: The case comes forward on motion of the Assist-
ant Commissioner, Investigations, Immigration and Naturalization
Service, requesting the Board to reconsider and reverse its order of
June 2, 1961, remanding the case for a hearing in expulsion pro-
ceedings pursuant to section 242 of the Immigration and Nationality
Act and requesting that the order of the special inquiry officer
terminating deportation proceedings be reinstated.
The facts are fully set forth in our prior order. Briefly, the
record relates to a native and citizen of Greece, 33 years old, male,
single, who last arrived in the United States at the port of New
York on April 24, 1959, as a stowaway on the M/V Alida Gorthon.
He was presented for inspection, was refused admission as a stowa-
way, and was ordered detained on board. However, he managed to
escape about four or five hours later and was not served with an
order to show cause in expulsion proceedings until March 24, 1961,
almost two years later. By order dated April 6, 1961, the special
inquiry officer concluded that jurisdiction did not lie under sec-
tion 242 of the Immigration and Nationality Act in expulsion pro-
ceedings and that respondent was not entitled to such a hearing,
but should be deported without a hearing pursuant to section 273(d)
under the outstanding exclusion order; accordingly, the special in-
quiry officer terminated proceedings. The case was certified to
the Board and on June 2, 1961, we concluded that the 'respondent
should be given a hearing in expulsion proceedings pursuant to
section 242 of the Immigration and Nationality Act.

359
 The present motion repeats in large part the arguments which
were advanced at oral argument and which were considered in our
decision. As we previously stated, we do not quarrel with the cases
holding that the parole of an excluded alien does not affect the status
of the alien who is to be regarded as stopped at the border and who
is regarded as not having entered the United States within the
meaning of the immigration law; nor do we dispute that there is a
distinction between exclusion and deportation proceedings. The
motion attempts to equate the proceeding under section 273(d) with
that set forth in section 252 (b), but we feel that the provisions of
law are not similar.
In our prior order we held that the elements of retention of custody
and control over the alien seeking entry into the United States are
determinative of the right to exclude without a hearing, as provided
under the pertinent sections of law. However, after custody and
control of the alien have been lost, and the alien has effected an
entry Lau the United States, the original jurisdiction to hold and
exclude has been lost and thereafter the status of the alien must
be determined in expulsion proceedings.
We are fortified in this view by the decision of the court in the
case of In re Dubbiosi, 191 F. Supp. 65 (E.D. Va., 1961). In that
case the alien was a member of a crew who had been inspected and
had been given a D 1 landing permit, but in connection with an in-
-

vestigation of stowaways had been placed under physical restraint
on board the ship while the search for the stowaways was completed;
the alien was implicated, and then taken off the vessel under guard,
arrested, and placed in jail. The court held that while in a literal
and physical sense the alien entered the United States when the
ship reached the waters within the territorial limits of this coun-
try, actual clearance was not accomplished so long as the crewmen
were detained pending formal disposition of their request for ad-
mission; that the present prevailing view with respect to bona fide
crewmen is that freedom from of ficial restraint must be coupled
with physical presence before it can be said that the "entry" for
immigration purposes has been accomplished; and that since the ele-
ment of freedom from official restraint was lacking, the alien had
not effected an entry into the United States and was properly the
subject of exclusion proceedings.'
It is recognized that while the judicial authorities cited do not
concern cases with the same or a similar factual situation such as
is presented in the instant case, yet the language is material and
applicable. It is not believed that the reference in the motion to
section 101(g) has any relevancy to this case. However, it is be-
1 United States v. Vaglutes, 209 F2d 195 (CA. 3. 1954) , United States v.
Lazarescu, 104 F. Supp. 771, affd. 199 F.2d 898 (C.A. 4, 1952).

360
liovcd from a study of the Caseq cited in our prior order and in
this order, that the distinction between exclusion and expulsion
proceedings lies in whether an entry within the meaning of the im-
migration laws has been made. The cases indicate that unless such
an entry has been made, unless there are present the elements of
retention and custody control over the alien seeking entry into the
United States, unless freedom from official restraint is coupled with
physical presence in the United States, no entry has been accom-
plished and there is no right to an expulsion proceeding Otherwise,
the alien must be regarded as stooped at the border and not having
made an entry and is properly the subject of exclusion proceedings
and the restrictive provisions regarding an alien seeking admission
into the United States, such as the swnmary provisions of section 252,
section 254 and section 273, would apply. However, we believe that
where an alien has effected an entry into the United States, although
such entry is admittedly illegal, and has remained in this country
for almost two years, he is properly the subject of expulsion pro-
ceetlifigs
ORDER: It is ordered that the motion be denied and that no
change be made in our prior order of June 2, 1961.

361