Matter of Ching and Chen

Ching and Chen (plaintiffs) were citizens of China who were traveling from Hong Kong to Guatemala via Tokyo and Los Angeles on a commercial airline. Upon arrival at Los Angeles International Airport, the carrier (i.e. the airline) presented the group to Immigration for inspection and admission under a transit without visa (TRWOV) privilege. The immigration officer denied them entry as TRWOVs and directed the carrier to put them on the next flight to Hong Kong. Ching and Chen agreed to return to Hong Kong, but while they were awaiting removal in the airline’s custody, they snuck out of the airport. They were caught two days later on a bus at a border patrol in Texas. The Immigration and Naturalization Service (INS) (defendant) apprehended them. The INS placed them in exclusion proceedings, but Ching and Chen argued that the exclusion proceedings should be terminated, because they should only be properly subject to deportation proceedings on the grounds that they had effectively entered the U.S. without inspection when they escaped. Ching and Chen cited a factually similar case, Matter of A-, 9 I & N Dec. 356 (BIA 1961), in which a stowaway escaped from carrier custody, landed on shore, and remained in the United States for two years, after which he was deemed to have made an “entry” and was thus subject only to deportation proceedings. The INS argued that a case called Matter of Lin, 18 I & N Dec. 219 (BIA 1982) should control. There, an alien who escaped from an INS detention facility while awaiting exclusion hearings did not make an entry into the United States and thus was subject to exclusion proceedings. The immigration judge found in favor of Ching and Chen and terminated exclusion proceedings. The INS appealed.