dissenting:
The issue presented here is not whether petitioners shall be excluded or deported, but rather what due process rights shall be accorded to them in connection with that determination. Although the inroads which these petitioners made into this country were brief both in distance and time, they were sufficient under existing precedent to satisfy the requirements entitling them to a deportation hearing with its enhanced protections. Whether they will be permitted to stay will be determined in those hearings; all that we decide today is whether those hearings will be full and fair or brief and limited. That petitioners arrived in this country illegally, intending to do so, is not disputed and reflects upon them and the conditions in their own country which forced them to undertake such a hazardous journey. The process by which we deal with them, however, reflects upon our nation and our basic traditions; it is this process that makes such a journey worthwhile to so many.
I.
As the ship “Golden Venture” headed within sight of New York in the early morning hours of June 6, 1993, the approximately 300 Chinese nationals aboard were in the final stages of a long escape from the People’s Republic of China (PRC). As described by this court in an earlier decision in this litigation, they endured much hardship in the course of their journey. First they traveled overland, through the mountains of the PRC and Burma to the jungles of Thailand. See Yi v. Maugans, 24 F.3d 500, 502 (3d Cir.1994) (denying class certification for the “Golden Venture” passengers). There they *1551climbed into the cargo hold of the smuggling ship “Golden Venture,” settling in for a long journey that they hoped would successfully, though illegally, bring them to the United States. Id. The ship sailed for over 100 days — days during which the passengers sat in the bowels of the ship. The culmination of this arduous journey was the grounding of the vessel a mere 100 to 200 yards off the shore of the Gateway National Recreation Area in Queens, New York. Id.
As set forth in Matter of G-, Int.Dec. 3215, at 5-7 (BIA 1998), the passengers on the ship were in desperate straits once it ran aground:
According to newspaper accounts of several passengers interviewed, pandemonium erupted on board when the ship was grounded. Passengers began spewing out of the cargo hold of their ship, where they had been forced to stay during their 3-month-long voyage. They crowded the ship’s deck, only to be told by the ship’s crew to jump overboard.
Id. at 6.
By the time the ship was first spotted by two park police officers at 1:45 a.m., its passengers were well into an evacuation from the distressed ship. Some of the passengers were already running on the shore, others were in the water, swimming and wading towards the beach, and still others were on board the ship awaiting rescue. At some unspecified time after the arrival of the first rescue personnel at 2:19 a.m., a cordon was established on a portion of the beach, about % to mile long, extending 600 yards inland from the water line.
All six of the petitioners in the instant appeal had reached the beach prior to being encountered by rescue personnel. I recount their individual stories here as they presented them below to the BIA.
Petitioner Dek Fun Lin jumped off the ship after it ran aground. Appendix (“App.”) at 144. With difficulty, he swam to shore. When he arrived, he was too exhausted to move and rested on the beach with other passengers from the boat. Id. About a half an hour after he arrived, someone in a uniform came up and wrapped him in a blanket, and then others came and offered him medical help. Id.
Petitioner Shimu Chen climbed to the deck of the ship when it ran aground and spotted a helicopter. Id. at 158. He then followed other passengers and jumped into the water. He struggled to shore where he lay, too exhausted to “continue [his] escape.” Id. at 159. A man approached him after an unspecified amount of time and carried Chen to a group of other Chinese people where he rested and was looked after until he could be brought to the Red Cross. Id.
Petitioner Wu Chao swam for about half an hour in the water before arriving on the beach. Id. at 175. When he made it to shore, Chao noticed about ten or fifteen other Chinese nationals on the beach with him, as well as some fences nearby. Then he lay down to rest because he was too exhausted from his swim to leave the beach. Id. at 181-82. He was on the beach for a “pretty long time” before he was taken by people wearing blue and white to a place where he received medical attention. Id. at 176-77.
Petitioner Sing Chou Chung dove into the water from the “Golden Venture” and swam to shore. Being a weak swimmer, he was exhausted upon arriving there and rested. About a half-hour after he arrived on the beach, Chung was approached by someone in a uniform whom he believes to be a policeman. This person offered him a blanket. He was also given medical care by people wearing white uniforms. Then Chung was handcuffed by police and brought to the hospital. Id. at 206.
Petitioner Shan Zhao also arrived on shore on his own. Once on land, he claims that he “almost walked to the street,” id. at 213, prior to being approached by an official about 30 minutes after he arrived on the beach. Id. at 216.
Petitioner Dar Hwa Wang arrived on the beach and noticed that the only other people around were other passengers from the vessel. Id. at 235. After “some time,” the length of which was unspecified in the record, Wang was given a blanket by “some people,” and then about a half an hour later, *1552was taken to an immigration office and then incarcerated. Id. at 236.
The first immigration officials arrived on the scene at about 3:30 a.m., some time after the rescue operation was well underway. In Matter of G-, Int.Dec. 3215, at 7. No effort was made to differentiate or keep track of which passengers were found on the shore, which were rescued from the water, which were rescued from the boat, or which were taken to medical facilities. Rather, “[i]mmi-gration officials processed all detainees as one large group.” Id. The captain of “Golden Venture” and his crew were arrested pending criminal prosecution for smuggling by the evening of the grounding.
The six petitioners in the instant case, along with about half of their compatriots from the doomed smuggling ship, were taken to York County Prison on June 7, 1993, the day after their tumultuous arrival. They have been detained there ever since — a period of twenty-seven months to date, which followed 100 harrowing days at sea.
II.
In the instant habeas corpus action petitioners claim that they are entitled to deportation hearings rather than exclusion proceedings because they “entered” the United States within the meaning of the Immigration and Nationality Act (“INA”). The type of proceeding to which they are entitled is significant to the petitioners. The procedural protections provided to applicants in deportation hearings are significantly greater than those available to asylum seekers in exclusion proceedings. As the Second Circuit has noted:
Deportation proceedings are generally more favorable to the alien than exclusion proceedings. Rights available in deportation but not exclusion include advance notice of the charges, a burden of proof placed on the government, direct appeal to the Court of Appeals, the right to seek suspension of the order, and the right to designate the country of destination....
Other than protection against gross physical abuse, the alien seeking initial entry appears to have little or no constitutional due process protection.
Correa v. Thornburgh, 901 F.2d 1166, 1171 n. 5 (2d Cir.1990) (citation omitted).
I respectfully dissent because I believe that the district court was correct in determining that the petitioners here are entitled to adjudicate their asylum claims in deportation hearings with their attendant due process protections. The district court properly concluded that the “Golden Venture” passengers were both physically present and free from official restraint from the time they crossed into the territorial waters of the United States. I also concur with the district court determination that the six petitioners actually and intentionally evaded inspection, although as explained herein, this test ordinarily would not be met by merely crossing into United States territorial waters.
A.
The territorial waters of the United States extend twelve miles from its shores.1 Petitioners contend, and the district court held, that they were physically present in the United States the moment they crossed into its territorial waters.
I do not contest either the Fourth Circuit’s statement, or the majority’s reliance upon it, that “mere presence in the territorial waters of the United States does not constitute entry into the United States.” Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1343 (4th Cir.1995); Majority Opinion, at 1547. The issue is not whether physical presence alone constitutes entry, but rather whether the first prong of the three-prong entry analysis is met by crossing into the territorial waters of the United States. I believe that it is.
I base my conclusion on case law, statutory construction, and clear logic. Like the district court, I am convinced that United States *1553v. Vasilatos, 209 F.2d 195 (3d Cir.1954), mandates this conclusion. In Vasilatos, the court made very clear that Vasilatos was physically present in the United States prior to arriving on land: “[T]hat presence in the United States which is essential to entry existed when, and even before, the ship arrived in Philadelphia. No landing was necessary to supply that prerequisite.” Id. at 197 (emphasis added).
The majority finds Vasilatos inapplicable here, making much of the fact that, at the time Vasilatos entered the United States, the INA as it exists today was not yet enacted. Specifically, the majority discredits Vasilatos because “[t]he definition of ‘United States’ that the Vasilatos court interpreted” was repealed and replaced by different language when Congress enacted the INA in 1952. See Majority Opinion, at 1548. Yet there is no discussion in the Vasilatos opinion at all about interpreting the phrase “United States.”
Rather, the court looked to the definition of “entry,” the word at the heart of this case. Vasilatos, 209 F.2d at 197. The court noted that the word “entry,” defined in section 101(a)(18) of the INA of 1952 as “any coming of an alien into the United States from a foreign port or place,” 8 U.S.C. § 1101(a)(13), was not defined in the immigration laws applicable at the time the Vasilatos case arose. However, it concluded:
It must have been apparent, long before the fact was emphasized in the 1952 definition [of entry], that in a literal and physical sense a person coming from abroad enters the United States whenever he reaches any land, water or air space within the territorial limits of this nation.
Id. at 197 (emphasis added). Thus, the court in Vasilatos believed that the 1952 definition of “entry” actually “emphasized ” its conclusion that a person is physically present in the United States upon crossing into territorial waters. Clearly, then, the Vasilatos court thought that the phrase “United States” appearing in the 1952 definition of “entry” included territorial waters.
Even if the majority were correct that Vasilatos was based on a now repealed definition of “United States,” I think the majority misreads the current statute when it concludes that the term “United States” for purposes of entry does not include territorial waters for three reasons. First, I read the definition of the “United States” supplied in section 101(a)(38) of the INA to include territorial waters. Second, section 215 of the INA and its more specific definition of the “United States”, which the majority cites in an effort to show that the general definition of “United States” does not include territorial waters, demonstrates that Congress explicitly did anticipate that aliens may have achieved entry by coming into the territorial waters. Third, I am convinced that the majority’s conclusion that physical presence can only be accomplished on dry land is too vague and would lead to absurd results in its application. I will address each of these points in turn.
1.
Section 101 of the INA, the definitions section, provides that “United States” is defined as “the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.” 8 U.S.C. § 1101(a)(38) (emphasis added). The government asserts, and apparently the majority agrees, that the word “continental” means that this definition encompasses only dry land. The word “continental,” however, is used merely to distinguish offshore states and territories from the lower forty-eight states. This conclusion finds support in 8 C.F.R. § 215.1(f) which reads, “The term continental United States means the District of Columbia and the several States, except Alaska and Hawaii.” (emphasis in original).2
*15542.
The majority argues that the definition of “United States” in section 101(a)(38) of the INA cannot mean more than dry land because another section of the Act, section 215(c), presents a more specific definition of “United States” for the purposes of that provision, which includes “all territory and waters, continental or insular.” 8 U.S.C. § 1185(c). The majority contends that this definition would be meaningless if territorial waters were already part of the general definition of “United States” in section 101(a)(38) of the Act. Majority Opinion, at 1548-49.
Yet, the section 215(c) definition of “United States,” along with its inclusion of territorial waters, applies to a provision of the INA that is about entry, and even specifically, the illegal transport of aliens. Thus section 215 and its definition of “United States” actually disproves the majority’s point. Section 215(a)(1) provides:
[I]t shall be unlawful for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.
8 U.S.C. § 1185(a)(1) (emphasis added). Section 215(a)(2) provides:
[I]t shall be unlawful for any person to transport or attempt to transport from or into the United States by another person with the knowledge or reasonable cause to believe that the departure or entry of such other person is forbidden by this section.
8 U.S.C. § 1185(a)(2) (emphasis added).
Section 215 actually demonstrates that Congress did envision that an alien could be physically present in the United States for purposes of entry by crossing into the territorial waters. Indeed, it seems apparent that Congress included the more specific definition of “United States” in this section to emphasize this point, thus ensuring that the President has adequate authority to regulate the entry and departure of aliens into and from the United States.
3.
Finally, I believe it would be impossible to base a determination of physical presence in the United States on arrival on land because it is unclear precisely what “dry land” means. Does this mean touching shore that is not covered by any water at all? What is the effect of high and low tides? Has an alien reached dry land upon standing on a beach that is moist with ocean water, or does the sand need to be perfectly dry? These questions may seem absurd, but they demonstrate how difficult it would be to premise these determinations on such a vague standard which changes as constantly as the tides.
Accordingly, I agree with earlier precedent that, for the purposes of determining physical presence, crossing into the territorial waters of the United States is sufficient. This of course does not mean that crossing into the territorial waters alone is sufficient to constitute entry. Indeed, as long established by the U.S. Supreme Court, an alien can be physically present in the United States and still not have entered the U.S. within the meaning of the INA. Leng May Ma v. Barber, 357 U.S. 185, 188, 78 S.Ct. 1072, 1074, 2 L.Ed.2d 1246 (1958). For that, an alien must satisfy the other two prongs of the test.
B.
The second prong of the “entry” test requires that an alien be either inspected and admitted by an immigration officer, or that he or she actually and intentionally evade inspection at the nearest inspection point. The BIA found in the cases of three petitioners, Chao, Chung and Wang, that they had affirmatively met this standard, App. 163, 203, 222, and it made no specific finding on this issue one way or the other for petitioners Lin, Chen and Zhao. App. at 141, 146-47, 211. The majority declined to resolve this issue directly, but implied that an alien must first reach dry land prior to actually and intentionally evading inspection. I agree that this issue need not be expressly resolved on appeal because the government never contested that the six petitioners, all of whom arrived on dry land prior to being ap*1555proached by any government officials, had actually and intentionally evaded inspection. However, because I consider this prong of the entry analysis to be an important piece of the entire entry puzzle, I will explore this issue in some detail.
In finding that petitioners Chao, Chung and Wang had actually and intentionally evaded inspection, the BIA looked to the conclusion in Matter of G-, Int.Dec. 3215 (BIA 1993). In Matter of G-, the BIA determined that another passenger from “Golden Venture” demonstrated intent to evade inspection:
[N]owhere in the record is there evidence suggesting that the applicant deliberately surrendered himself to the authorities for immigration processing, or that, once ashore, he sought them out, voluntarily awaited their arrival, or otherwise acted consistently with a desire to submit himself for immigration inspection. In fact, given the circumstances under which the Golden Venture landed, the applicant’s payment of money to a smuggling operation for passage to the United States, his lack of travel documents entitling him to enter this country, and his conduct once he came ashore, we find that the requisite intent to evade can be sufficiently gleaned from the record.
Matter of G-, Int.Dec. 3215, at 13 (BIA 1993).
This analysis, when applied to the stories of each of the six petitioners in this appeal, makes clear that all of them satisfied the actual and intentional evasion prong: all of them paid money to be smuggled to the United States; none of them carried travel documents; and none of them sought out immigration inspectors once ashore. However, it leaves open the question of whether “Golden Venture” passengers who were either rescued while in the water or while still aboard the ship met this prong.
In its briefs before the court, the government argues that inspection stations are always on land, and thus, in order to have actually evaded inspection, an alien would necessarily have to be on land. While I agree that in most circumstances this would be true, I also am aware that there are at least some circumstances in which inspections take place at sea. The Coast Guard commonly engages in activity related to enforcing immigration laws. For example, during the exodus of thousands of Haitians from Haiti in the early 1990’s, the Coast Guard interdicted aliens on the high seas to prevent their illegal entry into the United States. See Exec.Ord. No. 12,807, 57 Fed.Reg. 23,133 (1992) (ordering issuance of instructions “to the Coast Guard in order to enforce the suspension of the entry of undocumented aliens by sea”).
I thus once again decline to accept a bright line rule that an alien must, unequivocally, be on dry land in order to meet a prong of the entry test. Rather, I think an analysis of numerous facts must be considered in determining whether an alien has actually and intentionally evaded inspection while still at sea. Such facts should include, but are not limited to: (1) whether an incoming vessel is heading toward an inspection site or is intending to avoid any; (2) the proximity of the vessel to an inspection site; (3) the distance traveled within the boundaries of the United States without encountering an inspection site or an inspecting officer; (4) whether the vessel has reached a harbor or other protected area as opposed to being in the open sea; and (5) the presence or absence of government ships or airplanes that could interdict or observe incoming vessels.
In this case, I find the facts tend to support a conclusion that all passengers aboard “Golden Venture” actually and intentionally evaded inspection, regardless of whether they arrived on land. I find that all the detail in the record about the nature of the smuggling operation demonstrated intent to evade inspection. Given that “Golden Venture” (1) was not heading toward an ordinary inspection site; (2) was not, as far as the record reveals, in the vicinity of an inspection site; (3) had traveled virtually twelve miles into United States territory; (4) was apparently not in the open ocean but rather in a harbor or other kind of protected area; and (5) had successfully evaded Coast Guard vessels that were allegedly in the area looking *1556for it,31 would be inclined to conclude that all of its passengers actually evaded inspection. However, given the lack of evidence on the record as to the distance of the vessel from the nearest inspection station and the geographical nature of the harbor or bay where it ran aground, I would remand this determination to the district court for further fact-finding before making an entry determination.
C.
The BIA based its determination that the petitioners in this case never achieved entry on the grounds that they were never free from official restraint. The majority agrees with the BIA’s determination, dismissing Ninth Circuit case law as nonbinding on the Third Circuit and concluding that the petitioners had failed to meet their burden of proving they were free from official restraint. As I discuss, infra, I disagree with the court’s analysis of the burden of proof question. I also disagree with the majority’s conclusion that the petitioners were not free from official restraint because I am persuaded that statutory authority and case law cannot support such a conclusion.
“Freedom from restraint” means an alien attempting entry is not under governmental constraint that would “otherwise prevent her from physically passing on.” Correa, 901 F.2d at 1172, (citing Vasilatos, 209 F.2d at 197). This restraint can be effected by someone other than an immigration official. See Vasilatos, 209 F.2d at 197 (finding restraint of plaintiff was effected by the master of the ship); Correa, 901 F.2d at 1172 (“restraint need not be by immigration officers”). Furthermore, official restraint can be accomplished through mere observation; actual physical restraint is not required. See United States v. Aguilar, 883 F.2d 662, 682 (9th Cir.1989), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 112 L.Ed.2d 771 (1991); In re Pierre, 14 Int.Dec. 467, 469 (BIA 1973) (“restraint may take the form of surveillance”).
It is not, however, necessary that an alien act upon this freedom. See Aguilar, 883 F.2d at 683 (“where an alien is able to exer-eise his free will subsequent to physical entry, he is not under official restraint”); Matter of Patel, Int.Dec. 3157 (BIA 1991), 1991 WL 353524 at *5 (“The critical point ... is that freedom from official restraint exists, not that such freedom has been exercised.”). The majority includes no discussion in its analysis regarding whether the aliens aboard “Golden Venture” were free from official restraint prior to arriving on land. Unlike the majority, I have concluded, supra, that the petitioners were physically present in the United States prior to arriving on land. Accordingly, I consider whether freedom from official restraint was accomplished at the point of the petitioners’ physical arrival in the United States — presence in our territorial waters.
Section 271(a) of the INA, 8 U.S.C. § 1321(a), and the case law that interprets it clearly indicate that an alien could be free from official restraint while still in the water. The statute reads in part:
It shall be the duty of every person, including the owners, masters, officers, and agents of vessels, aircraft [or] transportation lines ... bringing an alien to, or providing a means for an alien to come to, the United States ... to prevent the landing of such alien in the United States at a port of entry other than as designated by the Attorney General or at any time or place other than as designated by the immigration officers.
8 U.S.C. § 1321(a).
This statute has been interpreted to mean that aliens who are physically present in the United States are nonetheless under official restraint by virtue of the duty placed on the owner, master, officer, or agent of the vessel. In Vasilatos, the court explained that aliens have not achieved entry merely by crossing into territorial waters “so long as they are detained there pending formal disposition of their requests.” Vasilatos, 209 F.2d at 197. In support of this proposition, the Third Circuit cited to 8 U.S.C. (1946 ed.) § 146, reenacted as 8 U.S.C. § 1321, and noted “[t]he reasonableness of this concept is emphasized by the fact that the master of an incoming vessel is under a legal duty to restrict passengers and crew members to the ship pending immigration clearance.” Id.
*1557Similarly, in Edmond v. Nelson, 575 F.Supp. 532 (E.D.La.1983), the court determined that Haitian aliens were not free from restraint when they were aboard a ship in U.S. territorial waters because they were under restraint of the ship’s captain who was following his section 271 duty:
While the petitioners were not under ‘official restraint,’ in that they were not under arrest or in the custody of the INS, it is clear that they were under a restraint required by the statute that governs entry of aliens, a statute that contemplates that law-abiding ship’s masters will act as did this ship’s master. For this reason, entry was never effected.
Id. at 535 (emphasis added).4 It can be inferred from Edmond that if the ship’s captain had not acted according to the statute, but instead released the petitioners, or even told them to dive overboard upon approaching land, they would not have been under restraint any longer.
But for ship personnel’s duty and authority under section 271 of the INA, then, passengers on board ships in U.S. territorial waters would be free from official restraint. In the instant case, the petitioners were carried into the territorial waters of the United States aboard a smuggling ship. Obviously, captains of smuggling ships are not officially restraining their passengers under section 271. Indeed, in this case, the master of the “Golden Venture” told the passengers to jump ship, see Matter of G-, Int.Dec. 3215 at 6, clearly indicating he was evading his duty under section 271 and defying the laws of the United States. Thus, I conclude that the passengers aboard “Golden Venture” were free from official restraint from the moment they crossed into the territorial waters of the United States.
However, I do not conclude that entry is achieved by merely crossing into U.S. territorial waters without being spotted by U.S. government officials. While I assert that passengers aboard a smuggling ship can be both physically present and free from official restraint the moment they cross into U.S. territorial waters, passengers on board the ship have not entered within the meaning of the INA unless they have also actually and intentionally evaded inspection. As noted in my discussion of evasion of inspection above, only rarely will an alien be found to have actually evaded inspection prior to reaching land.
Furthermore, smuggling ships can still be spotted outside territorial waters and therefore be under official restraint by observation the moment they cross into territorial waters. Indeed, in the case of “Golden Venture,” the ship was under surveillance by the Coast Guard prior to its entry into U.S. territorial waters; it was only after the ship disappeared from tracking devices that it was able to slip into the U.S. territorial waters.
III.
While my analysis would preclude the need to address the burden of proof issue, I feel I must do so here because I cannot agree with the majority that the BIA’s interpretation of section 291 of the INA is reasonable. Section 291 provides:
Whenever any person ... makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he ... is not subject to exclusion under any provision of this chapter....
8 U.S.C. § 1361.
The district court concluded that section 291 does not place the burden of proving freedom from official restraint on the petitioners. Bather, the court originally relied upon In re Application of Phelisna, 551 F.Supp. 960 (E.D.N.Y.1982), and concluded that section 291 required nothing more than that petitioners bear the burden of proving they “ ‘came physically into the United States at some point not in the vicinity of an inspection station.’” Chung v. Reno, 886 F.Supp. 1172, 1185 (M.D.Pa.1995) (citing Phelisna, 551 F.Supp. at 963). As noted by *1558the majority, the Second Circuit subsequently overruled Phelisna’s holding in Zhang v. Slattery, 55 F.3d 732, 756 (2d Cir.1995). The district court in this matter then revisited the issue and reached the same conclusion based on a finding that the BIA’s interpretation of section 291 was not reasonable. Chung v. Reno, No. 94-1702, slip op. at 9 (M.D.Pa. June 6, 1995).
While I agree that the Second Circuit did overrule Phelisna’s holding regarding the burden of proof in Zhang, I feel it important to note that it did so only on the grounds of deference to administrative interpretation, not because it found the district court’s statutory analysis in Phelisna to be inherently flawed. Indeed, the Zhang v. Slattery opinion explicitly agrees with the conclusion in Phelisna that there is “ ‘no express statutory provision allocating the burden of proving “entry.” ’ ” Zhang v. Slattery, 55 F.3d at 756 (citation omitted). The Second Circuit overruled Phelisna’s ultimate conclusion only on the grounds that the agency’s interpretation of the statute was “reasonable” and thus entitled to deference under Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984). Zhang v. Slattery, 55 F.3d at 756. The majority follows the Second Circuit’s reasoning to reach the same conclusion.
I disagree with the majority because I do not find the BIA’s statutory interpretation reasonable and thus determine it need not be accorded deference. Id. at 845, 104 S.Ct. at 2783 (explaining deference accorded to agency only if the interpretation “reasonable”).
The BIA’s interpretation of section 291 would require the petitioners to bear the burden of proving that they were not being observed by the government, observation being a form of official restraint. See In re Pierre, 14 I & N Dec. at 469. Because observation can “take the form of surveillance, unbeknownst to the alien,” id., the alien would be required to prove something she does not know. Indeed, in this case, the ship was originally under Coast Guard surveillance prior to being lost again, and it is inconceivable that any of its passengers were aware of this at the time. I think it is unreasonable, impossible and inequitable to call upon the passengers aboard “Golden Venture” to prove they had not been under such surveillance and therefore conclude that the BIA erred in determining that the burden of proof regarding freedom from official restraint lies with the aliens.
IV.
For the foregoing reasons, I would affirm the district court’s decision.
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE, and SAROKIN, Circuit Judges.. Until recently, the territorial seas of the United States were limited to within three miles from the coast. President Reagan extended this to twelve miles by Presidential Proclamation in 1988. Exec. Order No. 5928, 54 Fed.Reg. 777 (1989). See 8 C.F.R. § 287.1(a)(1) (defining “external boundaries” of the United States as “the land and boundaries and the territorial sea of the United States extending 12 nautical miles from the baseline of the United States_”).
. While I recognize that 8 C.F.R. § 215 is a codification of section 215 of the INA, the statutory section the majority posits has an expanded definition of "United States,” I find the definition in the regulation instructive for purposes of the general meaning of "continental United Statés.” I further note that the phrase “continental United States” does not exist in the definition of “United States” presented in section 215(c) of the INA, and conclude that the phrase at it appears in 8 C.F.R. § 215 was borrowed from the general definition of “United States” for the whole INA.
. The record reveals that Coast Guard vessels had tracked "Golden Venture” but lost track of the vessel prior to its crossing into territorial waters.
. It is notable that the court in Edmond, a decision rendered after the enactment of the INA in 1952, did not rule that petitioners failed to achieve entry because they had not stepped on dry land. Rather, the court recognized they had "entered United States waters," noting "[hjowever ... petitioners were ... under lock and key detention by the ship’s master,” thus implicitly accepting that physical presence for purposes of entry was achieved by crossing into the waters. Id. (emphasis added).