                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-1995

Yi Yang v Maugans
Precedential or Non-Precedential:

Docket 95-7316




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Recommended Citation
"Yi Yang v Maugans" (1995). 1995 Decisions. Paper 279.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/279


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                    Nos. 95-7316, 7317, 7318,
                       7319, 7320 and 7321



 YOU YI YANG; BONG WON YEE; GUANG FENG LI; CHU-SU CHEN; PIN LIN;
 YONG ZHONG PAN, a/k/a Pu Wing Chun; SO GEE DONG; CHANG CHUN LU;
XIN-FEI ZHANG, a/k/a Xin-Fuei Zarang; TONG WAI ZHANG; DAI MIN LU;
       SHI CHUN ZHENG; CHUN HUA LIN; XING CHEN; SHUIDI ZHENG;
       GUO ZHEN XIE; LI YUN-YOU; MING LONG LIN; DEK FUN LIN;
       ZHONG CHEN; WANG CHAO LIN; NAN REN LIN; YENG MING LIN;
  CHAN BIN JONG; ZENG HUA ZHENG; YUNG KWON CHENG; RUI QUI HUANG;
     SHIMU CHEN; GUI LIN CHENG; REN YAN YANG; YONG ZHENG; KWAI
        SUNG CHENG; XUE KIAN CHEN; YI HONG LIN; GOU ZHI LEE;
   JIAN LE SHI; WU CHAO; XING-KWONG ZHENG, a/k/a Xing-Ke Zheng;
     XUE YAO LIN; JIAN BIN LIN; WING JONG JUNG; BIN HUA ZHENG;
     XIANG GUI CAO; ZUOXUN LEE; CHAI KAN CHENG; AI MING WANG;
    SING CHOU CHUNG; JAR JIAN WANG; HE PING CAO; ZENG-PING LUI;
    KOU ZHANG CHENG; GONG SHI; CAI WAN CHEN; YUE FENG LEE; ZHAO
       SHAN ZHAO; FEN-HOU CHEN; CHONG SHENG QU; XUE-DEE CHEN;
  MAO-JIANG LIN; WEN-HAO CHEN; JIAN FU CHAI; DE HUI CHEN; JI LI
  ZHENG; FU SING ZHENG; YE ZING CHAI; FA YU ZHUANG; SHI J ZHENG;
     ZHONG ZHOU; LIAN BING ZHENG; ZHAI YOUNG ZHU; XUE CAN ZOU;
  XYE RONG ZHAN; AU ZIA ZHAO; YUE FENG ZHANG; DA HE ZHENG; SHAN
CIEN ZHANG; NAN WEI ZHANG; HUA YI ZHON; YE SONG; GIN GUAN WU; YEE
 JAN WONG; XIN CHANG SHANG; ZHONG WU LUO; HUSEH TA TANG; WANG WU
  DONG; YOU SHUI WANG; ZIM SHENG WHANG; SI OU; LI TUN CHENG; PAN
  SHAO MIN; YOU QUAN LIN; BI SHENG LIU; XU YONG LU; LU TIAN HAO;
      GHUAN LI LIU; RUI KAN LIN; XIANG KENG LIN; KONG ZHI LI;
  DUAN SHENG KIN; ZHON GUAN LI; JIN LIM FU; ZHE SHUNG JAIN; HYEI
 GWOR; WING-HON CHENG; DAI ZI HE; ZHI PING GAO; XIANG NMU GAO; YI
    CHENG DONG; EI YOUNG GIANG; SON SHING DONG; JIA RENG DONG;
    CHI CHI CHUNG; WOR OI CHIN; ZHU F. CHENG; SON CHING CHENG;
     GIN SEN CHENG; TIA SIAN CHEN; KAN GUAN CHEN; KAI Q. ZENG;
 GUO CHENG LIN; XIANG GUAN CAI; XIN SING ZHOU; YONG QUI CHI; YONG
       GING WU; CIAN GLUAN YONG; CHENG YE WU; MING GUANG LIU;
    CHUN LIN JIN; JAN YON CHUNG; ZHEN HUAN WENG; KANG DI WENG;
 CHENG XIAO DAI; GUO PING YE; CHANG QING ZHOU; MEI XI CHEN; JIAN
BIAO WENG; DAR HUA WANG; FUI LIN; ZHE SHUNG JAN; ZHONG MING TIAN;
GUAN JUN WANG; JIAN YUN WAN; JIA WEN LIU; BAO JIN LUI; ZHANG SONG
                        XHONG; XIN BIN ZHENG

                               v.

     GEORGE MAUGANS, District Counsel of the United States


                               1
        Immigration and Naturalization Service - Baltimore
     District; DAVID L. MILHOLLEN, Director of the Executive
   Office for Immigration Review and Chairman of the Board of
  Immigration Appeals; RICHARD J. SHARKEY, District Counsel of
          the US Immigration and Naturalization Service -
        Philadelphia District; J. SCOTT BLACKMAN, District
   Director of the US Immigration and Naturalization Service -
        Philadelphia District; UNITED STATES IMMIGRATION &
    NATURALIZATION SERVICE; EXECUTIVE OFFICE FOR IMMIGRATION
   REVIEW; JANET RENO, Attorney General of the United States;
      DORIS MEISSNER, Commissioner of the US Immigration and
   Naturalization Service; MARY MAGUIRE DUNNE, Acting Director
    of the Executive Office for Immigration Review and Acting
            Chairman of the Board of Immigration Appeals

          JANET RENO, Attorney General of the United
          States; DORIS MEISSNER, Commissioner of the
          U.S. Immigration and Naturalization Service;
          GEORGE MAUGANS, District Counsel of the U.S.
          Immigration and Naturalization Service,
          Baltimore District; DAVID L. MILHOLLEN,
          Director of the Executive Office for
          Immigration Review and Chairman of the Board
          of Immigration Appeals; RICHARD J. SHARKEY,
          District Counsel of the U.S. Immigration and
          Naturalization Service, Philadelphia
          District; J. SCOTT BLACKMAN, District
          Director of the U.S. Immigration and
          Naturalization Service, Philadelphia
          District; MARY MAGUIRE DUNNE, Acting Director
          of the Executive Office for Immigration
          Review and Acting Chairman of the Board of
          Immigration Appeals,

                                        Appellants, in 95-7316,
95-7317, 95-7318, 95-7319, 95-7320, 95,7321


(Appeal from matter regarding Dek Fun Lin at D.C. Cv. No. 94-59)


(Appeal from matter regarding Shimu Chen at D.C. Cv. No. 94-192)


(Appeal from matter regarding Chao Wu at D.C. Cv. No. 94-257)


    (Appeal from matter regarding Sing Chou Chung at D.C. Cv.
                            No. 94-435)



                               2
     (Appeal from matter regarding Dar Hwa Wang at D.C. Cv.
                          No. 94-560)


    (Appeal from matter regarding Zhao Shan Zhao at D.C. Cv.
                           No. 94-601)




      On Appeal from the United States District Court for
              the Middle District of Pennsylvania
                  (D.C. Civil No. 93-cv-01702)



                       Argued:    August 25, 1995

             BEFORE:      GREENBERG, COWEN and SAROKIN
                            Circuit Judges


                       (Filed    October 24, l995)


Craig T. Trebilcock
Stock & Leader
35 South Duke Street
P.O. Box 5167
York, PA 17405-5167

Frances P. Rayer
Pepper, Hamilton & Scheetz
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103-2799


Beverly J. Points
100 East Market Street
York, PA 17405-7012

Ann Carr
156 East King Street
Lancaster, PA 17602

Robert S. Kitchenoff
David H. Weinstein (ARGUED)


                                    3
Weinstein, Kitchenoff, Scarlato
 and Goldman
1608 Walnut Street
Suite 1400
Philadelphia, PA 19103

Kathleen Blanchard
Astra Merck, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087-5677

Sharon J. Phillips
11 Park Place
New York, New York   10007

Kurt A. Blake
Katherman & Heim
345 East Market Street
York, PA 17403


          COUNSEL FOR APPELLEES

               Dek Fun Lin
               Shimu Chen
               Chao Wu
               Sing Chou Chung
               Dar Hwa Wang
               Zhao Shan Zhao


Philemina M. Jones
David M. McConnell
Gary G. Grindler (ARGUED)
United States Department
 of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, D.C. 20044

          COUNSEL FOR APPELLANTS

               GEORGE MAUGANS, District Counsel of
               of the United States Immigration and
               Naturalization Service - Baltimore District

               DAVID L. MILHOLLEN, Director of the
               Executive Office for Immigration Review
               and Chairman of the Board of Immigration


                                  4
               Appeals

               RICHARD J. SHARKEY, District Counsel
               of the United States Immigration and
               Naturalization Service - Philadelphia District

               J. SCOTT BLACKMAN, District Director
               of the United States Immigration and
               Naturalization Service - Philadelphia District

               IMMIGRATION & NATURALIZATION SERVICE

               EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

               JANET RENO, United States Attorney General

               DORIS MEISSNER, Commissioner of the
               United States Immigration and Naturalization
               Service

               MARY MAGUIRE DUNNE, Acting Director of the
               Executive Office for Immigration Review and Acting
               Chairman of the Board of Immigration Appeals



                             OPINION



COWEN, Circuit Judge.


          This case involves the issue of whether an "entry" may

be effected pursuant to section 101 of the Immigration and

Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101, merely by

encroaching upon United States territorial waters without being

detected or pursued by authorities.    Also at issue is whether the

district court accorded the Board of Immigration Appeals' ("BIA")

construction of section 291 of the INA, 8 U.S.C. § 1361, which is

the statute's burden of proof provision, the deference to which

it was entitled under the standard the Supreme Court set forth in



                               5
Chevron v. U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984).

             The related appeals before us arise from the habeas

corpus petitions of six citizens of the People's Republic of

China who are currently being held for deportation by the

Immigration and Naturalization Service ("INS").    Petitioners Sing

Chou Chung ("Chung"), Dek Fu Lin ("Lin"), Shimu Chen ("Chen"), Wu

Chao ("Chao"), Shan Zhoa ("Zhoa") and Dar Hwa Wang ("Wang") set

foot upon a Rockaway, Queens beach on June 6, 1993, after having

traveled for three months in the cargo hold of the "Golden

Venture," an alien smuggling ship carrying over 300 passengers.

None of the petitioners ever left the beach area and all of them

admittedly were arrested within thirty minutes of their arrival.

          Chung, Lin, Chen, Chao, Zhoa and Wang all had their

legal claims adjudicated in exclusion proceedings.    At their

respective

exclusion proceedings, the six petitioners' applications for

asylum were denied and they were ordered excluded from the United

States.   They then filed habeas corpus petitions in the United

States District Court for the Middle District of Pennsylvania,

pursuant to section 106(b) of the INA, 8 U.S.C. § 1105a(b).      All

six petitioners proceeded to file motions in the district court

for partial summary judgment on the issue of whether they had

"entered" the United States within the meaning of the INA.1

1
The question whether the petitioners had "entered" the United
States is not merely a matter of semantics. Under the law, once
an alien has "entered" the United States, that individual has
certain rights that can be adjudicated only pursuant to a full


                                  6
            On May 16, 1995, the district court held that

petitioner Chung had "entered" the United States as a matter of

law before he had reached dry land.    Chung v. Reno, 886 F. Supp.

1172, 1184 (M.D. Pa. 1995).    As to the allocation of the burden

of proof under section 291 of the INA, the district court further

held that it was unreasonable for the BIA to place the burden

upon illegal aliens to establish that they were "free from

official restraint."    Id. at 1185.   On June 6, 1995, the district

court denied the government's motion for reconsideration and

ordered deportation proceedings to commence against Chung within

ten days.    The government was ordered to release Chung if

deportation proceedings were not commenced within that time

period.     On June 9, 1995, based upon its decision in Chung, the

district court ordered the government to initiate deportation

proceedings against petitioners Lin, Chen, Chao, Zhoa and Wang.


The government appeals the district court's orders granting

partial summary judgment on the issue of entry in the six

petitioners' habeas corpus actions.    As the district court

interpreted our decision in United States v. Vasilatos, 209 F.2d
195 (3d Cir. 1954) too broadly and failed to accord the BIA's

interpretation of the INA the required level of deference, we

reverse.



deportation hearing. However, if the individual is found in the
United States but never "entered" within the meaning of section
101 of the INA, the alien can be excluded through the summary
process of an exclusion hearing.


                                  7
                                  I.

                           A.

          These cases arise from the following series of events,

as described in the BIA's decision in Matter of G-, Int. Dec.

3215, at 5-7 (BIA 1993).

In the early morning hours of June 6, 1993, the "Golden Venture"

struck a sandbar 100 to 200 yards offshore of Fort Tilden

Military Reservation, which is located on the Rockaway Peninsula

in the Gateway National Recreation Area in Queens, New York.        The

plight of "Golden Venture" first came to the attention of law

enforcement officers at approximately 1:45 a.m.      At that time,

two United States Department of the Interior Park Police officers

saw the ship, some of its passengers running on the beach and

others attempting to swim ashore.      At 1:58 a.m., the officers

contacted the New York City Police Department ("NYPD") and other

law enforcement agencies for assistance.

          A formidable array of law enforcement officers soon

arrived upon the scene.     NYPD officers responded to the emergency

call at 2:19 a.m.    Soon thereafter a police cordon was set up to

secure the beach area.     Also involved in the rescue operation

were police canine units, New York State Police helicopters

equipped with searchlights, Coast Guard boats and helicopters and

personnel from the New York Park Police, the Jacob Riis Park

Police, the New York City Fire Department and the Emergency

Medical Service.    INS officials arrived at approximately 3:30

a.m.




                                  8
           Over 100 "Golden Venture" passengers remained on the

ship to await the arrival of rescue personnel.   Approximately 200

of the passengers, however, decided to hazard the fifty-three-

degree waters and high waves by attempting to swim ashore.

Although it appears that most of the people who ultimately

reached the beach were too exhausted to go farther, about thirty

passengers fled into the surrounding community before the

perimeter of the beach had been sealed off.   Others were arrested

on the beach and held in a building on Fort Tilden Military

Reservation.   The police escorted passengers who needed medical

attention to local hospitals where, after they received

appropriate medical treatment, were placed in the custody of the

INS.

           At York County Prison, exclusion hearings were brought

against the "Golden Venture" detainees, including the six

petitioners.   At their respective exclusion proceedings, the

petitioners provided the following accounts of their arrivals:

Chung, Lin and Chen said that they jumped from the ship, swam

ashore and lay down in exhaustion until they were approached by

an officer.    Chao also said that he jumped from the ship and swam

ashore.   He came up on the beach near a fence, walked about

thirty steps, changed his clothes and waited until some officers

took him away.   Zhoa averred that he "almost walked to the

street" before a police officer approached him approximately

thirty minutes after his arrival on the beach.   Wang stated that

he jumped into the ocean, swam ashore, changed clothes and sat on




                                 9
the beach.    While on the beach he was taken away by the officers

after being given emergency care.

             The BIA entered a final exclusion order in each of

petitioners' cases after concluding that the aliens had not

proven that they made an "entry" into the United States within

the meaning of section 101 of the INA.     All six petitioners and

many of their "Golden Venture" co-passengers also applied for

political asylum in their exclusion hearings, alleging that they

were being persecuted by China's one-child-to-a-family policy.

Their applications for asylum were all rejected.     Presently the

petitioners, along with nearly half the "Golden Venture"

passengers, are being detained at York County Prison in

Pennsylvania.


                                  B.

             The BIA addressed the issue of entry in Matter of G-,

which involved the case of petitioner Sing Chou Chung, one of the

"Golden Venture" passengers.     Applying well-established law, the

BIA defined "entry" as requiring satisfaction of the following

three elements:    "(1) a crossing into the territorial limits of

the United States, i.e., physical presence;     (2) (a) inspection

and admission by an immigration officer, or (b) actual and

intentional evasion of inspection at the nearest entry point; and

(3) freedom from official restraint."     Id. at 8 (citing Correa v.
Thornburgh, 901 F.2d 1166, 1171 (2d Cir. 1990);     Matter of Patel,

Int. Dec. 3157 (BIA 1991)).




                                  10
            Since Chung landed on the beach, the BIA found that he

had satisfied the "physical presence" requirement.      The BIA also

found that the second element of the entry test had been met

because "the circumstances under which the Golden Venture landed,

[Chung'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"

suggested that Chung intended to evade inspection at the nearest

entry point.     Matter of G-, Int. Dec. 135, at 13.

             The determinative factor was whether Chung had

satisfied the third element of the entry test, i.e., whether he

was ever "free from official restraint."      The BIA interpreted

section 291 of the INA as placing the burden upon the "Golden

Venture" aliens to establish that they were free from official

restraint.     The BIA recognized that "in cases where there is no

clear evidence of the facts determinative of the entry issue,

those cases ultimately must be resolved on where the burden of

proof lies."     Id. at 11.   The BIA held that Chung did not "enter"

the United States because he had failed to meet this burden.        Id.

at 14-15.


                                   C.

             Over 100 of the detainees, including the petitioners,

filed habeas corpus petitions in the United States District Court
for the Middle District of Pennsylvania, pursuant to section

106(b) of the INA, 8 U.S.C. § 1105a(b).      As these petitions

presented similar issues, the district court consolidated them


                                   11
under the caption Yang You Yi v. Maugans, No. 93-1702.    The

consolidation order, entered on November 15, 1993, consolidated

"for all purposes" current and future habeas corpus petitions

from the "Golden Venture" passengers detained at York County

Prison.

          After the district court's consolidation order had been

entered, the six petitioners filed individual motions for partial

summary judgment on the issue of whether they had effected an

"entry" into the United States.    On May 16, 1995, the district

court granted petitioner Chung's motion for partial summary

judgment, holding that he had entered the United States within

the meaning of the INA.   Chung v. Reno, 886 F. Supp. at 1185. The

district court concluded that the BIA had applied the governing

immigration law incorrectly in two areas.    First, the court

rejected the BIA's conclusion that all three elements necessary

to establish that an entry into the United States has occurred

must be satisfied while the alien is on "dry land."    Id. at 1179.

The district court interpreted our decision in United States v.

Vasilatos, 209 F.2d 195 (3d Cir. 1954), as binding authority,

which led it to conclude that Chung had satisfied all three

elements of the entry test before he reached dry land. Chung, 886
F. Supp. at 1184.

          The district court further held that the burden of

proof had not_!




                                  12
