## Facts

- Two nationals of the People’s Republic of China traveled from Hong Kong to Guatemala via Tokyo and Los Angeles and were presented for inspection at Los Angeles International Airport as “transit without visa” (TRWOV) passengers.
- An immigration officer denied TRWOV admission and issued Form I-259 directing the carrier to detain the group pending removal on the next available return flight to Hong Kong.
- While held in an airport detention lounge under carrier custody, the two applicants left the lounge and the airport without authorization, abandoning passports, tickets, and baggage.
- Two days later, they were apprehended on an eastbound commercial bus at a Border Patrol checkpoint in Sierra Blanca, Texas.
- The government served each applicant with Form I-221S and initially charged them as excludable under INA § 212(a)(20) for lacking valid immigrant visas.
- In exclusion proceedings, the applicants argued their escape and subsequent presence in the United States constituted an “entry,” requiring deportation (not exclusion) proceedings.

## Issues

1. Whether aliens refused admission as TRWOV passengers who escape from carrier custody while awaiting removal and travel within the United States have made an “entry” under the INA.
2. If an “entry” occurred, whether the government is limited to deportation proceedings rather than exclusion proceedings.

## Decision

- The BIA dismissed the government’s appeal and affirmed termination of the exclusion proceedings.
- The BIA held that the applicants’ escape from carrier custody and subsequent freedom from official restraint constituted an “entry,” making them subject only to deportation proceedings.
- The BIA followed Matter of A-, 9 I. & N. Dec. 356 (B.I.A. 1961), and distinguished Matter of Lin, 18 I. & N. Dec. 219 (B.I.A. 1982).

## Legal Principles

- An “entry” requires (1) physical presence within the territorial limits of the United States and (2) freedom from “official restraint.”
- Detention by a carrier pursuant to a government directive pending immediate removal constitutes “official restraint” that ends when the alien escapes carrier custody.
- When an alien effects an “entry” after refusal of admission, the government must proceed in deportation proceedings rather than exclusion proceedings.
- Escape from Service custody during an ongoing exclusion process does not necessarily create an “entry” and may leave exclusion proceedings intact; escape from carrier custody pending removal is treated differently for “official restraint” analysis.

## Conclusion

Because the applicants escaped carrier custody after being refused admission and then traveled within the United States free from official restraint, they effected an “entry” under the INA, and the government could proceed only in deportation proceedings, not exclusion proceedings.


Matter of Ching & Chen, 19 I. & N. Dec. 203 (B.I.A. 1984)