L-Y-Y-

MATTER OF
In DEPORTATION Proceedings
A-7139375
Decided by the Attorney General September 10, 1960
Parole—Section 212(d)(5)—Termination does not change status as applicant
for admission.
Termination of parole requires that alien's case be continued in exclusion pro-
ceedings; it does not allow conversion Into deportation proceedings.
CHARGE :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable
at entry as an alien not In possession of the visa required by
section 13(a) of the Immigration Act of 1924 [8 U.S.C. 213(a)1.
BEFORE THE BOARD
(Jan. 25, 1960)
DISCUSSION: The Board has ruled that the Service can termi-
nate the parole of an excluded alien and then dispose of the case in
expulsion (deportation) proceedings. The Service believes that it
has authority to deal with such an alien only in exclusion proceed-
ings, and asks that the issue be referred to the Attorney General for
review.
Respondent, a 28 - year- old male, a native and citizen of China,
sought to enter as a citizen on December 20, 1948. He was paroled
pending a decision in his case. In June 1949, he was ordered ex-
cluded. Appeal to the Board was dismissed in November 1949. In
December 1957, the District Director terminated parole, nuns pro
tune, as of December 20, 1948. This was apparently done in order
that the respondent could be considered a resident of the United
States so that he could make an application for subpeuiuti of de-
portation. In any event, an application for suspension of deporta-
tion under the Immigration and Nationality Act of 1952 was sub-
mitted on December 23, 1957.
In July 1958, expulsion proceedings were started. In August the
respondent filed a motion for reopening of the exclusion proceedings
for the consideration of new evidence. The motion was denied by
the Board in October on the ground that any evidence which re-
spondent might desire. to submit could be presented during the
expulsion proceedings. The file fails to reflect that the Service
70

representative at the Board made known any position on the motion.
No opposition to the Board order was received.
In January 1959, hearings were held in the expulsion proceedings.
In April the special inquiry officer found the respondent deportable
on the charge stated above. Respondent's application for suspension
of deportation was denied because he had failed to establish exist-
ence of the requisite hardship, and because favorable discretionary
action was not merited.
Appeal was taken to the Board. On September 8, 1959, the Board
dismissed the appeal. The Board found that the alien was deport-
able and that he had failed to establish eligibility for suspension of
deportation. At oral argument, the Service representative had asked
that the proceedings be terminated on the ground that there was nu
authority to try the case in expulsion proceedings. He argued that
a person paroled into the United States cannot be regarded as if he
were "in" the United States and, therefore, could not be proceeded
against in expulsion proceedings —used only against a person "in"
the United States. The Service representative is of the belief that
termination of parole places the respondent in the position of an
applicant for admission. (He believes that the respondent is inad-
missible to the United States.) Counsel for respondent stated he
had submitted a motion to reopen the exclusion proceedings but had
been informed by Service officials that after the revocation of parole
the case could be beard only in expulsion proceedings.
Parole—the enlargement of the confinement of an excluded alien—
was used in the early 1920's, and probably before. Prior to the Im-
migration and Nationality Act of 1952 there was no specific author-
ity to release an excluded alien on parole. However, the practice
existed, for ; the need was there, and authority could be found in the
fact that the Attorney General had the pbwer of staying the im-
mediate deportation of an excluded alien. A feature of parole was
the fact that the actual physical presence of .the parolee did not in
the eyes of the law put him "in" the United States. The parole e
was considered as "knocking at the gates." Therefore, one who had
been paroled following an exclusion order could not file an applica-
tion for those adjustments of status which required him to be "in"
the United States (Matte• of 3- 541).
In the ordinary case, the parolee was taken into custody and de-
ported on the basis of the order of exclusion after the purpose for
which he had been paroled had been served. However, with the
approval of the Attorney General, a long-standing practice existed
which did permit a paroled alien to be "in" the United States. In
comparatively few cases, excludable aliens with close family ties
were paroled so that they could adjust their immigration status by
applying for voluntary departure and preexamination, or registry,
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suspension of deportation, or naturalization. To be eligible for any
of these reliefs the alien had to be "in" the United States. In other
cases, the administrative authorities desired to put the alien "in"
the Untied States so that they could take advantage of laws relating
to the, expulsion of aliens. These laws permitted a wider latitude
in the choice of countries to which an alien could be deported. To
put the parolee "in" the United States, the administrative author-
ities terminated parole and abandoned the order of exclusion. The
alien was then considered to be "in" the United States, although in
illegal status. The alien could apply for any of the adjustments of
status for which he deemed himself eligible, and he could be pro-
ceeded against in expulsion proceedings. Thus, prior to the Im-
migration and Nationality Act, it was established that in the dis-
cretion of the authorities an alien on parole could be considered as
"in" the United States. Prior to the Immigration and Nationality
Act, the procedure followed in the instant case would not have been
questioned (see, United States ex rel. Milanovic v. Murff, 253 F.2d
941, 943 (C.A. 2, 1958) ; Matter of W — , 1- 558, 562; Matter of G — ,
1- 217; Matter of R — , 1- 389, 393; Matter of R — , 3-45 ; Matter of
F— , 2 709; Matter of L—W----1 7, Int. Dec. No. 242, Acting Attor-
ney General, March 23, 1951).
Respondent's parole was terminated, nurse pro tuna, to a time when
there was no dispute that administrative authorities could terminate
parole to put an alien "in" the United States. It would seem, there-
fore, that there should be no issue as to whether respondent is "in"
the United States and as to whether expulsion proceedings were
proper. However, the Service view is broad and would deprive the
Attorney General of an important discretionary right. We believe
it is necessary to discuss it fully.
We come now to the Immigration and Nationality Act of 1952.
Bills which subsequently became the Immigration and Nationality
Act gave the Attorney General discretion to parole an inadmissible
alien for the purpose of receiving medical treatment. The Depart-
ment suggested the use of the language which is now found in sec-
tion 212(d) (5) of the Immigration and Nationality Act (8 U.S.C.
1182(d) (5) ), and in doing this indicated that the intent was to
give "statutory force and effect" to the existing administrative "prac
tice" (Revision of Immigration, Naturalization, and Nationality
Lawn, Joint Hearings Before the Subcommittees of the Committee
on the Judiciary, 82d Cong., let Sess., on S. 716, H.R. 2379, and
H.R. 2816, p. 713; S.R. 1137, 82d Cong., 2d Sess., pp. 12-13). After
the passage of the Immigration and Nationality Act of 1952 the
practice of terminating parole and proceeding as if the alien were
"in" the United States continued. A question as to the validity of
72

this practice was raised in 1056 in unreported Matter nf P—,
A-5452888 (October 18, 1956).' The Board affirmed the validity
of the practice. No further action was taken by the Service for some
time. On January 8, 1958, the Service amended the regulation con-
cerning parole to provide that upon termination of parole "further
inspection or hearing shall be conducted under section 235 or 236
of the act and this chapter, or any order of exclusion and deporta-
tion previously entered shall be executed" (8 CFR 212.5, 23 F.R. 142,
January 8, 1959).
On June 16, 1958, the Supreme Court decided the case of Laic
May Ma v. Barber, 357 U.S. 185 (1958). The Service argues that
the case requires that termination of parole be followed by the return
of the alien to the jurisdiction of an exclusion proceeding.
In Leng May Ma v. Barber, supra, the court held that a parolee
(physically present in the United States) was not "within the United
States" for immigration purposes. We think that Leng May Ma says
no more than that the Immigration and 'Nationality Act has not
changed the previous law regarding parole. Long May Ma, was ex-
cluded and paroled in August 1952 pending final decision in her
case. Her appeal was dismissed in December 1953. She was notified
to surrender for deportation to China in January 1954. She then
applied for a stay of deportation under section 243(h) of the Im-
migration and Nationality Act (8 U.S.C. 1253(h) ) alleging that
deportation would subject her to physical persecution. This law
had been held inapplicable to an alien in exclusion proceedings for
it required an alien to be "within the United States." Leng May Ma
I The case concerned an alien who had been paroled in 1954 for prosecu-
tion; parole was later terminated and expulsion proceedings were instituted.
The special inquiry officer found the alien subject to deportation. No issue
was raised as to the nature of the hearing. On appeal, the Board reopened
the case to enable the alien to be adequately represented by counsel. At the
reopened hearing, the special inquiry ufileer terminated proceedings on the
ground that the alien's status could be determined only in exclusion proceed-
ings. The special inquiry officer certified his decision to the Board. Inter-
estingly enough, when the case came before the Board on certification, the
Service representative opposed the position of the special Inquiry officer. He
argued that expulsion proceedings were proper and asked that the case be
returned to the special Inquiry officer for consideration on the merits. The
Board saw no reason to depart from the practice which had existed for so
song a period and remanded the case to the special inquiry officer for hearing
on the merits in the expulsion proceedings. Shortly thereafter, the Service
reversed its position and filed a motion asking that the case be terminated
because the issue of the alien's immigration status could be determined only
In eaclusion proceeding©. It was argued that both the law and regillatiOn
required such a conclusion. On October 18, 1956, the Board entered an order
denying the service motion on the ground that section 212(d) (5) of the Immi-
gration and Nationality Act, considered in the light of administrative prac-
tice and legislative history, revealed no intention to curb the administrative
practice.
73

argued that having been paroled, she was physically "within" the
United States and therefore as a matter of right was eligible for
the relief. The court ruled that the alien was not "within the
United States" and was not eligible for the relief. The court stated
that prior to the Immigration and Nationality Act, (1) the detention
of a n alien in custody pending determination of his icim ssi hi 1 i ty
did not legally constitute an entry although the alien was physically
within the United States, and (2) that an alien on parole was "still
in theory of law at the boundary line." The court found no evidence
`that the Congress, in enacting section 243(h) of the 1952 Act, in-
tended to depart from previous interpretations. In reaching its
conclusion, the court relied upon the cases which had been decided
prior to the Immigration and Nationality Act. Since the court's
holding represented no departure from what had existed prior to
the Immigration and Nationality Act, its decision should not demand
a change in the administrative practice which had been established
prior to 1952. As a matter of fact, there is a vital factual difference
between Leng May Ma and the instant case. Leng May Ma does
not involve an alien whose parole had been terminated to enable him,
to be "in" the United States. Kaplan v. Tod, 267 U.S. 228 (1925),
upon which the court relied, did not involve an alien whose parole
had been terminated to enable him to be "in" the United States.
The decision in Leng May Ma should no more prevent the continu-
ance of the administrative practice than did the decision in Kaplan.
' The Service states that it is contrary to the amended regulation
to terminate parole of an alien and then handle his case in other than
exclusion proceedings We cannot agree with this interpretation. In
the first place, the amendment of the regulation occurred after the
termination of parole. In the second place, the Commissioner cannot
by a regulation take from the Attorney General a power that the law
gives him.2
We have pointed out, Congress did not indicate that it desired to change
the administrative practice which existed prior to the Immigration and Na-
tionality Act. This is significant in view of the fact that when Congress
wanted to change an administrative practice of long standing, it did so ex-
plicitly_ It would not be proper to deprive the .Attorney General of a power
the law gives him and which he still needs. (An alien paroled after exclusion
is ordered deported under the order of exclusion to the country whence he
came—the only place to which an excluded alien can be deported is to the
country whence he earne— that enuntry refuses to accept him — the Service
needs the power to terminate parole to place the aliea "in" the United States
so that expulsion proceedings permitting deportation to a wide choice of coun-
tries may be utilized. (See, 8 U.S.C. 1227 and 1253, and United States ex rel.
lifilanovie v. Murif. 253 F.2d 941 (CA. 2. 1958).)) Inability to place an ap-
plicant for admission in expulsion proceedings may hamper the Government
in its efforts to deport undesirable aliens (see, United States ex rel. Paetau v.
Watkins, 164 F.2d 457 (C.A. 2, 1947)). On the other hand, it may become
74

The conclusion that an excluded alien must be heard only in exclu-
sion proceedings under all circumstances has been rejected judicially.
Section 212(d) (5) of the Immigration and Nationality Act, which
states that the alien "shall" be returned to the custody from which
he was paroled and that he be regarded as an applicant for admis-
sion, does not require that all parolees be heard in an . exclusion
proceeding. In certain cases the Government must give an applicant
for admission the hearing which is given to a resident alien (Kwong
Hai Chew v. Rogers, 257 F.2d 606 (C.A. D.C., 1958) ).
It is appropriate to note an analogy. The Immigration and Na-
tionality Act provides that an alien against whom a warrant of
arrest in expulsion proceedings has been issued may not have a hear-
ing upon a petition for naturalization. Nevertheless, the Attorney
General possesses the inherent discretionary power to terminate ex-
pulsion proceedings to permit the alien to adjust his status through
naturalization (Matter of B—, 6-713; see also, Matter of M—, 5-
622) The power to terminate parole, in exclusion proceedings to
enable an alien to adjust his status is analogous to the power to termi-
nate deportation proceedings to enable a "deportable" alien to apply
for naturalization.
We conclude, therefore, that although an alien excluded and pa-
roled cannot as a matter of right change his status as one standing
at the gates, the administrative authorities may, in their discretion,
in the public interest or for compelling humanitarian reasons, ter-
minate the parole of an alien so that he shall be "in" the United
States for the purpose of availing himself for relief which may enable
him to adjust his status. (The continuance of the administrative
practice should not prove more difficult under the Immigration and
Nationality Act than it has in the past, or than have similar prac-
tices as termination of deportation proceedings to enable one to have
a hearing on a naturalization petition, or continuance of an excluded
alien on parole on the ground that, his deportation would result in
physical persecution.)
Of course, the action of the Service in making an issue of this
case is not egregious nor is the Service estopped from making the
issue; however, we do feel the wisdom of raising the issue in this
case is debatable. Respondent is under an order of deportation. He
has been denied suspension of deportation. The order of deportation
was entered after the respondent sought to reopen his exclusion case
and was told that the expulsion procedure being followed was the
proper one. He was told this by the Service, and by the Board with-
out Service objection, even though he attempted to reopen the exclu-
sion case after the Service had started expulsion proceedings. He
apparent that an alien's deportation would result in such serious ennse-
quences to United States citizens that it should be avoided by permitting the
alien to apply for relief available to aliens "in" the United States.
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has been put through the expense and trouble of an expulsion pro-
ceeding. He has gone through the expense and trouble of an ad-
ministrative appeal. It has taken 10 years to bring the case to its
present stage. Now the Service would start all over. Why? In
the expulsion proceeding, the only administrative relief left is an
application under section 243(h) of the Immigration and Nationality
Act for a stay of deportation on the ground that he will face physical
persecution. If he is now placed in exclusion proceedings and is
ordered deported, he cannot file the same application but can achieve
a similar result by requesting an extension of parole on the ground
that he would face physical persecution. If he is granted such relief
in the exclusion case, would he not have been granted a stay in the
expulsion case? And, if he is denied the extension of parole in the
exclusion case, can he not be denied a stay in the deportation case?
ORDER: Pursuant to the provisions of 8 CFR 3.1(h) (1) (iii) and
at the request of the Commissioner, this case is referred to the At-
torney General for review.
BEFORE THE ATTORNEY GENERAL
(Sept. 12, 1960)
ORDER: It is directed that the deportation proceeding herein be
terminated and that the case be returned to the Immigration and
Naturalization Service for disposition in exclusion proceedings pur-
suant to section 235 or 236 of the Immigration and Nationality Act,
with consideration being given to an extension of parole status as
long as the alien is in danger of physical persecution in his native
land.
This case is before me in accordance with the provisions of 8 CFR
8.1(h) (1) (iii) for review of a decision by the Board of Immigration
Appeals.
The subject is a native of China who claimed to be a citizen when
he applied to enter the United States on December 20, 1948. Pend-
ing determination he was paroled and when his citizenship could
not be established, his parole was terminated as of the date of his
1948 entry. He was then permitted to file an application for sus-
pension of deportation. The question at issue between the Commis-
sioner of Immigration and Naturalization and the Board of Immigra-
tion Appeals, and the subject of this reference to me, is whether it
was allowable, within the provisions of the Immigration and Na-
tionality Act, to convert proceedings in the case from exclusion to
deportation, thus permitting application for suspension of deporta-
tion following termination of the alien's parole. The Service con-
fesses error in permitting the conversion. The Board would uphold
the procedure although it finds the alien in this case unqualified for
suspension of deportation.
76

For the purposes of this decision the parole provisions in section
212(d) (5) of the Immigration and Nationality Act are notable in
two respects. While they permit the Attorney General to parole
aliens applying for admission to the United States, they impose a
limitation that "such parole of such alien shall not be regarded as
an admission of the alien" and they require that when the purposes
of the parole have been served "the alien shall forthwith return or
be returned to the custody from which he was paroled and thereafter
his case shall continue to be dealt with in the same manner as that
of any other applicant for admission to the United States." In my
opinion, these provisions in section 212(d) (5) form a clear direc-
tive to the Attorney General to treat any alien paroled as "an
applicant for admission to the United States" as soon as the purposes
of his parole "have been served." No interval of time is provided
between termination of parole and return "forthwith" to custody
during which an alien could be rendered deportable for any purpose.
The Board finds no ambiguity in the language of the parole pro-
visions but contends that Congress in enacting those provisions did
not indicate an intention to change the administrative practice pre-
vailing prior to the Immigration and Nationality Act. Under the
former practice an alien could be rendered deportable upon ter-
mination of parole. If that position were supported by the history
of the legislation, valuable powers would be preserved under which
the Attorney General could, in his discretion, permit adjustments of
status available to him in deportation but not in exclusion proceed-
ings. Unfortunately, the history is barren of such support. More-
over, in the case of Leng May Ma v. Barber, 357 U.S. 185, decided
June 16, 1958, the Supreme Court concluded that when Congress
enacted the Immigration and Nationality Act it gave no evidence of
an intention to depart from the traditional concept that parole is
not an admission of an alien. Specifically, the Court held that sec-
tion 243(h) of the Act, which authorizes the Attorney General to
withhold deportation of an alien who would be subject to physical
persecution in his native land, is not available to an inadmissible
alien who is in the United States in a parole status. The Court
ruled that the status of Leng May Ma was not changed when her
parole was terminated. As long as she was an excludee, she remained
on the threshold of initial entry and was not entitled to additional
rights and privileges which might be extended to aliens who are
within the United States after an entry, irrespective of its legality.
The Leng May Ma decision is a determinative interpretation in
the instant case. Taken with the language of section 212(d) (5), it
leaves no alternative to the conclusion that the termination of parole
requires that the case be continued in exclusion proceedings. As
ordered, it is therefore returned to the Immigration and Naturaliza-
tion Service for that purpose.
77