On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 84-3066)
Seitz, Gibbons and Sloviter, Circuit Judges
Petitioner Haruna Dabone, a citizen of Ghana, entered this country lawfully as a permanent resident alien on June 12, 1977, pursuant to his marriage to a United States citizen. Dabone was engaged in the import-export business dealing in Ghanaian goods. On June 19, 1979, following a trip abroad, he was arrested and charged with possession of fifteen pounds of marijuana. Following a guilty plea he was sentenced to two years of probation.
Thereafter, Dabone left the United States several times in connection with his import-export business and was admitted back into the country. On January 11, 1982, he went to London, Amsterdam, Liberia, and Ghana, obtaining visas for London and Amsterdam. When he returned to the United States on March 11, 1982, Dabone was not permitted to re-enter the country and was charged as excludable under Section 212(a)(23) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(23), which requires exclusion of anyone convicted of illegal possession of marijuana. He was paroled into the United States, placed in exclusion proceedings, and found excludable in a decision rendered June 8, 1982. For reasons that remain unexplained on this record, that decision was not served on Dabone until more that a year later.
Although the time for filing an appeal had expired, the Board of Immigration Appeals (BIA) took jurisdiction by certification because of the delay in service. It affirmed the decision of the immigration judge on April 11, 1984 and notified Dabone that his deportation to Ghana was scheduled for June 26, 1984. On June 12, 1984 Dabone moved to stay deportation and to reopen the exclusion proceeding based on his contention that he had now been lawfully domiciled in the United States for 7 years and therefore had become eligible to apply for discretionary relief under Section 212(c), 8 U.S.C. § 1182(c). The request for a stay was denied on the ground that there was little likelihood of granting the motion to reopen. That motion remains pending. Dabone filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania, which denied the writ but stayed deportation pending appeal.
On appeal Dabone challenges the propriety of placing him in exclusion proceedings and the BIA's failure to find that he made out a prima facie case of eligibility under § 212(c) of the Act in his motion to reopen. We turn first to the exclusion issue.
Propriety of Exclusion Proceedings
Dabone argues that the BIA erred as a matter of law in finding that he was properly placed in exclusion proceedings. He contends that if the INS sought to deprive him of his resident alien status because of his conviction, it was obliged to do so through deportation procedures. Both parties agree that Dabone was deportable after his drug conviction. See Section 241(a)(11), 8 U.S.C. § 1251(a)(11). Dabone apparently seeks the benefit of the panoply of rights and procedures that attend deportation proceedings, but that are unavailable in exclusion proceedings. Of course, if he was properly placed in exclusion proceedings, it is irrelevant that the INS may also have had the option to use deportation proceedings against him.
Whether exclusion proceedings were appropriate depends on whether he made an "entry" on March 11, 1982. It is a general principle of immigration law that an alien who leaves the country and makes a new entry on his or her return is then subject to all current exclusionary laws. Bonetti v. Rogers, 356 U.S. 691, 698, 2 L. Ed. 2d 1087, 78 S. Ct. 976 (1958). The new entry stands the alien on the same footing as if it were the initial entry. Before the enactment of the Immigration and Naturalization Act of 1952, the term "entry" had been defined strictly as "any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one. " United States ex rel. Volpe v. Smith, 289 U.S. 422, 425, 77 L. Ed. 1298, 53 S. Ct. 665 (1933).
This restrictive approach was modified by subsequent decisions. When a train from Buffalo to Detroit carried an alien without knowledge that the route passed through Canada, the Second Circuit held the alien had not effected an entry. DiPasquale v. Karnuth, 158 F.2d 878, 879 (2d Cir. 1947). The court, in an opinion by Judge Learned Hand, said that an entry requires intent and "demands knowledge by the alien that the route which he is to take will carry him across our borders. "The Supreme Court approved the DiPasquale approach shortly thereafter. Faced with a fact pattern where an alien on a merchant whip that was torpedoed during World Was II was taken to Cuba for one week to recuperate, it held that the alien was not ...