623 F.

2d 730

UNITED STATES of America, Appellee,

v.
Edward KAVAZANJIAN, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Mourad AVEDISSIAN, Defendant, Appellant.
Nos. 79-1243, 79-1244.

United States Court of Appeals,

First Circuit.
Argued March 11, 1980.
Decided June 27, 1980.

Daniel Riesel, New York City, with whom Lawrence R. Sandak, and
Winer, Neuburger & Sive, New York City, were on brief, for appellant,
Edward Kavazanjian.
Marshall F. Newman, Boston, Mass., by appointment of the court, with
whom Newman & Newman, P. C., Boston, Mass., was on brief, for
appellant, Mourad Avedissian.
Alan D. Rose, Asst. U. S. Atty., Boston, Mass., with whom Edward F.
Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and
WYZANSKI, Senior District Judge.*
BOWNES, Circuit Judge.

Following a jury trial in the District Court for the District of Massachusetts,
appellants Edward Kavazanjian and Mourad Avedissian were convicted under
18 U.S.C. 371 of conspiring both to defraud, and to commit offenses against,
the United States and under 8 U.S.C. 1324 of encouraging or inducing the
entry into this country of aliens not lawfully entitled to enter or reside here. We
conclude that an error of law tainted the indictment and therefore reverse the
convictions.

I.
2

The case revolves around the efforts of the appellants to assist aliens mostly
Armenian Christians of Iraqui citizenship who had gathered in Athens, Greece
to avoid persecution in their country in coming to the United States and seeking
political asylum. The evidence showed that, in the latter part of 1977, several
dozen aliens arrived at United States airports in the status of "transits without
visa" and then, in most cases, applied for asylum and were "paroled" into this
country. A brief description of these immigration law devices must precede any
further explication of the facts.

The transit without visa (TWOV) device is designed to facilitate international

travel. It permits aliens travelling from one foreign country to another, which
route entails a stopover in the United States, to proceed "in immediate and
continuous transit" through this country without a passport or visa. 8 U.S.C.
1182(d)(4)(C) (1970). An individual desiring to use the transit without visa
privilege must establish, inter alia, that (1) he is admissible under the
immigration laws, (2) he has confirmed means of transportation to at least the
next country, and (3) he will accomplish his departure within eight hours after
his arrival or on the next available transport. 8 C.F.R. 214.2(c) (1980);
accord, id. 212.1(e)(1); 22 id. 41.30. A TWOV is barred from applying for
extension of temporary stay or for adjustment of his status to that of permanent
resident, 8 U.S.C. 1255(c)(3) (Supp. VI 1976); 8 C.F.R. 214.2(c)(1) (1980),
and the responsibility for his custody lies with the transportation line which
brought him to the United States unless the Immigration and Naturalization
Service (INS) intervenes. Id.

The parole device constitutes one of two alternative mechanisms for dealing
with foreign nationals who seek asylum in the United States because of
persecution in their native countries. The second device, known as conditional
entry, is the more rigid; it permits the admittance each year of up to 10,200
aliens who, inter alia, have fled from, and are unable or unwilling to return to, a
communist-dominated or Middle East country because of actual or threatened
persecution on the basis of race, religion, or political opinion. 8 U.S.C.
1153(a)(7) (1970). Two years after their conditional entry, these refugees are
able to apply for permanent resident status. Id. The parole mechanism, by
contrast, is not subject to any numerical limitation and is not contingent upon
an alien's being otherwise admissible. 8 C.F.R. 212.5 (1980). An additional
distinction is that the availability of parole is not restricted to political refugees;
the Attorney General is authorized to parole aliens into the United States
"temporarily under such conditions as he may prescribe for emergent reasons or
for reasons deemed strictly in the public interest." 8 U.S.C. 1182(d)(5)

(1970). As a result of this inherent flexibility, large numbers of aliens both

refugees and others have been paroled into this country.1 Unless a parolee gains
permanent resident status in the interim pursuant to 8 U.S.C. 1255 (1970), he
is restored to his former status upon fulfillment of the conditions of parole or
whenever parole is deemed no longer warranted. Id. 1182(d)(5).
5

Count one of the indictment charged the defendants with three separate acts of
conspiracy. First, it alleged that, by arranging for aliens to come to this country
ostensibly as TWOV's and, upon their arrival, to claim asylum and obtain
parole, the defendants conspired to defraud the United States by circumventing
the TWOV and conditional entry programs, all in violation of 18 U.S.C. 371.
Second, the defendants were charged with conspiring to violate 8 U.S.C.
1324 by encouraging or inducing the entry into the United States of aliens not
lawfully entitled to enter or reside here. Finally, count one alleged that they
conspired to violate 18 U.S.C. 1001 and 18 U.S.C. 2 by concealing material
facts and making and causing others to make false statements in material
matters within the jurisdiction of the INS. The second and third actions were
said to constitute conspiracies to commit offenses against the United States,
again in violation of 18 U.S.C. 371. Counts two and three were substantive
counts, alleging that the defendants violated 8 U.S.C. 1324 by assisting two
named aliens in seeking asylum and gaining parole after their arrival as
TWOV's at Boston's Logan Airport.2

II.
6

From the evidence presented at trial, the jury could have found as follows: The
defendant Kavazanjian, an American citizen of Armenian descent, served for
fourteen years until his retirement in 1976 as a criminal investigator in the New
York district of the INS. Thereafter, he worked in New York as a travel agent
and as a private consultant on immigration matters. Throughout this period,
Kavazanjian volunteered substantial amounts of time to various Armenian
church and philanthropic organizations in their efforts to assist Armenians both
in this country and abroad. The defendant Avedissian is a young Armenian
Christian who came to the United States in 1976 and acquired permanent
resident status. In August of 1977, Kavazanjian employed Avedissian as an
"intern" because of the latter's fluency in Arabic.

The defendants' activities were thereafter devoted in large part toward

attempting to alleviate the plight of the Armenian community in Athens. Many
of the residents there were Iraqui citizens, who had fled their country following
the ascendency to power of the Baathist party and the ensuing persecution of
Armenian Christians.3 Their situation in Athens was unstable, for jobs were

scarce and many of the arrivals were of uncertain immigration status and feared
being forcibly returned to Iraq. Obtaining asylum in the United States was thus
a widely-shared goal. However, only thirty conditional entry visas per month
were available to be assigned by the consular office in Athens, resulting in
substantial delays for most applicants.
8

As a solution to this problem, the defendants realized that, if these aliens could
somehow reach this country and assert their status as refugees, they would be
allowed to remain here. Consequently, they were instrumental in implementing
a scheme whereby aliens would board airplanes in Athens, ostensibly as transits
through the United States to third countries, and then claim asylum upon arrival
at American airports. The TWOV status of these aliens avoided the need for
United States visas. Between September and November of 1977, dozens of
aliens were successful in reaching the United States by these means so much so
that, on December 5, 1977, the TWOV privilege was revoked with respect to
all Iraqui citizens. 42 Fed.Reg. 61449, 61451 (1977).

Sanharib Jallow, a co-defendant in this case who later pleaded guilty and
testified for the government at trial, recruited many of the participants in this
scheme, often with the promise that they would be met by a lawyer upon
arrival in this country.4 In return for a several hundred dollar fee plus costs, he
procured for each alien a ticket and visa, and an appropriately stamped
passport, for a country the route to which involved a stopover in New York or
Boston.5 Typically chosen as destinations were Mexico, Panama, and the
Bahamas.6 None of the aliens had any intention of actually transiting through
the United States and proceeding to these locations. Jallow also frequently
provided the travellers with what he termed "gifts" to be given to the defendants
an envelope containing from $200 to $1200 for Kavazanjian, and a suitcase
containing new clothes and occasionally a smaller sum of money for
Avedissian. On some occasions, Jallow informed the defendants of the flight
number and arrival time; on others, the defendants specified this information
beforehand.

10

Other aliens became involved in this arrangement by contacting the defendants

directly. Kavazanjian was well known throughout the Armenian community in
Athens and his telephone number was readily available. Some aliens called with
general requests for assistance, and were instructed to arrange a flight through a
designated American airport. Others, already familiar with the TWOV
procedure, phoned specifically to ask for assistance upon their arrival. In some
instances, contact with the defendants was initiated by an alien's friends or
relatives in the United States. As a rule, the travel plans were finalized only
after agreement as to the defendants' fee had been reached.7

11

The circumstances surrounding the arrival of these groups of aliens in New

York or Boston were varied. One or both of the defendants typically met the
aliens as they deplaned, often making contact by calling out their names. In
some cases, they then proceeded together to the immigration office, where the
defendants formally applied for political asylum on the aliens' behalf. Upon
completion of a short application form (Form I-94), these aliens were paroled
into this country temporarily typically for several weeks with instructions to
visit an INS office on a specified date to complete the application process.8
Once outside the airport, the defendants collected the sum of money agreed
upon usually between $400 and $800 per person or, from those travellers sent
by Jallow, the envelopes and suitcase provided by him. The aliens were then
generally put on flights for Chicago or California where friends or relatives
resided.

12

The defendants treated other arriving aliens to a somewhat more harried

reception by spiriting them out of the airport without contacting INS officials at
all. On one occasion, Kavazanjian met the arrivals dressed in a maintenance
uniform and shepherded them outside in a manner described as "kind of
running." When confronted by a guard, he was reported to have flashed some
type of badge. At another time, an airline employee escorted several aliens, in
the company of the defendants, to another terminal to embark on the next leg of
their ostensible journey; when the escort temporarily absented himself, the
defendants ushered the aliens outside. A third group of aliens, also in the
custody of an airport guard en route to another terminal, was freed when
Avedissian paid $450 to the guard in a men's restroom. In each of these
instances, the defendants collected their fees from the travellers once safely
outside the airport.

13

The defendants' subsequent involvement with the aliens, who still faced the
task of perfecting or initiating their claims for asylum, took one of three
courses. In some cases, either or both of the defendants visited the alien and
assisted in the preparation of Form I-589, typically by posing to him the same
questions contained in the application and writing down his responses.9 They
then accompanied the alien to the INS office to provide any necessary
assistance during the formal application and interview process. On other
occasions, the defendants' involvement was limited to helping in the
preparation of Form I-589. Sometimes, the defendants drafted appropriate
responses after questioning the aliens. However, there was evidence that the
defendants mailed to several aliens already completed applications without ever
discussing the contents with them; some of the responses on these forms were
identical,10 and some of the information provided was erroneous. 11 Finally, a
third group of aliens was denied any further assistance from the defendants,

despite earlier promises to the contrary and despite repeated requests for help.
14

There was also evidence that the defendants later engaged in efforts to conceal
or downplay their involvement in this scheme. Upon learning of one alien's
being summoned for questioning by the INS, Kavazanjian attempted to
dissuade him from attending, and Avedissian instructed him not to divulge the
amount of money collected as their fee. More importantly, both defendants
gave sworn statements to INS investigators which conflicted with the evidence
at trial in several respects, particularly concerning their relationship with
Jallow, the manner of contacting the aliens and the amounts of money received.

15

Apparently, no final decision has yet been made on any of the aliens' requests
for asylum. None of the aliens has been returned to Greece or Iraq.

III.
16

The centerpiece of the indictment is 8 U.S.C. 1324(a)(4) (1970), which the

defendants are alleged both to have conspired to violate (count one) and to have
violated as a substantive matter (counts two and three). This provision prohibits
any person from "willfully or knowingly encourag(ing) or induc(ing), or
attempt(ing) to encourage or induce, either directly or indirectly, the entry into
the United States of any alien . . . not duly admitted by an immigration officer
or not lawfully entitled to enter or reside within the United States . . . ." As is
evident from this language, and as is underscored by the fact that the first
paragraph of section 1324(a) punishes anyone who "brings into or lands in the
United States" an illegal alien, id. 1324(a)(1), an actual or contemplated
"entry" is a prerequisite to any conviction under section 1324(a)(4).12 The term
"entry" is defined broadly in 8 U.S.C. 1101(a)(13) (1970) as "any coming of
an alien into the United States, from a foreign port or place or from an outlying
possession . . . ." However, the defendants point to the judicial gloss placed on
this term of art and argue that the aliens, by arriving as TWOV's and obtaining
parole, never effected an "entry" within the meaning of the statute. We think
this argument has substantial merit.

17

Most courts that have construed this term have concluded that "entry" is not
accomplished until physical presence of an alien in this country is accompanied
by freedom from official restraint. E. g. United States v. Oscar, 496 F.2d 492,
493-94 (9th Cir. 1974); Vitale v. INS, 463 F.2d 579, 581-82 (7th Cir. 1972);
United States v. Vasilatos, 209 F.2d 195, 197 (3d Cir. 1954); Klapholz v.
Esperdy, 201 F.Supp. 294, 297 (S.D.N.Y.1961), aff'd, 302 F.2d 928 (2d Cir.),
cert. denied, 371 U.S. 891, 83 S.Ct. 183, 9 L.Ed.2d 124 (1962). The Oscar case
is illustrative. The defendant there was convicted under 8 U.S.C. 1325 (1970)

for, inter alia, assisting two aliens in "obtain(ing) entry to the United States by a
willfully false or misleading representation . . . ." The evidence showed that he
had driven the aliens to a port of entry and instructed them to hide their
passports from customs officials and claim to be American citizens. The aliens
were immediately directed by the INS examiner to a secondary inspection area
where their alien status was disclosed. The court reversed the conviction,
concluding that no entry had been accomplished since the aliens were never
free from the official restraint of the customs officers. 496 F.2d at 493-94.
18

Under this construction,13 we reject the government's contention that the aliens
entered this country when they stepped off the plane as TWOV's. The
government argues that the INS regulations contemplate the admission of
TWOV's for a short period of time, and refers us to 8 C.F.R. 214.2(c)(1)
(1980), which speaks of an "applicant for admission under the transit without
visa privilege" and requires that he be "admissible under the immigration laws."
However, that regulation goes on to state:

19
(U)ntil
his departure from the United States responsibility for his continuous actual
custody will lie with the transportation line which brought him to the United States
unless at the direction of the district director he is in the custody of this Service or
other custody approved by the Commissioner.
20

Id. (emphasis added). However the INS may characterize his status, it certainly
cannot be said that a TWOV is free from official restraint while awaiting his
departure. This fact formed the basis for the court's conclusion in United States
v. Esperdy, 210 F.Supp. 786, 790 (S.D.N.Y.1962), that "(w) hile at the airport
and in the custody of the airline or the Immigration Service, (the TWOV) . . .
had not effected an entry." See also Vitale, supra, 463 F.2d at 582 (placing alien
"in the custody" of airline precluded entry).

21

It is also apparent, as the government appears to concede, that no entry

occurred when the aliens were paroled pending disposition of their asylum
requests. As one court described it, "(C)ases are legion to the effect that parole
does not effect entry . . . ." Siu Fung Luk v. Rosenberg, 409 F.2d 555, 558 (9th
Cir.), cert. denied, 396 U.S. 801, 89 S.Ct. 2151, 24 L.Ed.2d 58 (1969). See, e.
g., Vitale, supra, 463 F.2d at 582; United States v. Esperdy, 386 F.2d 232, 235
(2d Cir. 1967), cert. denied, 392 U.S. 935, 88 S.Ct. 2301, 20 L.Ed.2d 1393
(1968); Wong Hing Fun v. Esperdy, 335 F.2d 656, 657 (2d Cir. 1964), cert.
denied, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965). In part, this result
reflects the continued official restraint under which parolees operate. In
addition, as the Supreme Court has explained, "The parole of aliens seeking
admission is simply a device through which needless confinement is avoided

while administrative proceedings are conducted. It was never intended to affect

an alien's status . . . ." Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct.
1072, 1075, 2 L.Ed.2d 1246 (1958) (construing 8 U.S.C. 1253(h), which
pertains to aliens "within the United States"). The statutory provision
authorizing the grant of parole specifically embraces this principle, stating that
"such parole of such alien shall not be regarded as an admission of the alien. . .
." 8 U.S.C. 1182(d)(5) (1970).
22

We note that the government advanced the additional view below that the
aliens would at least effect an entry into this country when (and if) their asylum
claims are eventually allowed. Because it was neither presented on appeal nor
incorporated into the jury instructions, we pause only long enough to note
several difficulties with this argument. First, it is not at all clear whether the
aliens ultimately will succeed in gaining asylum. We question whether section
1324(a)(4), notwithstanding the apparent breadth of its sanction against one
who "attempts to encourage or induce . . . indirectly" an entry, was intended to
encompass so speculative an eventuality. Second, a successful claimant for
political asylum may remain in parole status indefinitely. The INS Operations
Instructions, for example, prescribe that an alien who presents a meritorious
claim for asylum at a seaport or airport "shall be paroled or reparoled in
increments of a year with permission to work" and shall be "reviewed
annually." INS Operations Instructions 108.1(c) (1974). The government
apparently contemplated an eventual attempt by the aliens to adjust their status
"to that of an alien lawfully admitted for permanent residence" under 8 U.S.C.
1255(a) (Supp. VI 1976).14 However, such adjustment of status is specifically
prohibited for "any alien admitted in transit without visa. . . ." Id. 1255(c);
accord, id. 1228(d); 8 C.F.R. 214.2(c) (1980). See, e. g., Fook Hong Mak v.
INS, 435 F.2d 728 (2d Cir. 1970). We raise, without deciding, the question
whether the aliens' intervening status as parolees would suffice to exempt them
from this prohibition.

23

The indictment also fares poorly under the second element of section 1324(a)
(4) that the aliens were "not duly admitted by an immigration officer or not
lawfully entitled to enter or reside within the United States." In the
government's view, because the aliens had no intention of proceeding in
immediate and continuous transit through the United States, they were
inadmissible under 8 U.S.C. 1182(a)(19) (1970), which renders excludable
any alien who, inter alia, "seeks to enter the United States, by fraud, or by
willfully misrepresenting a material fact." As a result, the government argues
that they are not "lawfully entitled to enter or reside" here.

24

We agree that the aliens, by arriving as TWOV's with no intention of effecting

24

an orderly and expeditious departure, were guilty of fraud or misrepresentation.

As noted above, an alien desiring to avail himself of the TWOV privilege
"must establish . . . that he will continue his journey . . . within 8 hours after his
arrival. . . ." 8 C.F.R. 214.2(c)(1) (1980). In addition, any nonimmigrant
applying for admission must "agree to abide by all the terms and conditions of
his admission . . . (and) to depart the United States at the expiration of his
authorized period of admission. . . ." Id. 214.1(a).15 Under these
circumstances, the actions of an alien who adopts TWOV status solely for the
purpose of reaching this country's border, without any intention of pursuing his
journey,16 constitute a circumvention of the TWOV program and a fraud on the
United States.17 But even if this rendered their arrival illegal,18 they were
nonetheless lawfully entitled both to seek asylum and to reside in this country if
successful in obtaining parole. The district director of a port of entry is
specifically authorized to parole inadmissible aliens into the United States. 8
C.F.R. 212.5(a) (1980); see, e. g., Fleurinor v. INS, 585 F.2d 129, 134 (5th
Cir. 1978); Pierre v. United States, 547 F.2d 1281, 1284-85 (5th Cir.), vacated
and remanded to consider question of mootness, 434 U.S. 962, 98 S.Ct. 498, 54
L.Ed.2d 447 (1977). And once having obtained the status of parolee, an alien is
obviously entitled to "reside" here, at least until "the purposes of such parole . .
. have been served" and the alien is "returned to the custody from which he was
paroled." 8 U.S.C. 1182(d)(5) (1970).

25

The foregoing is not meant to suggest that no violation of section 1324(a)(4)

was established from the evidence presented at trial. Those aliens who fled
from the airport without applying for asylum and gaining parole clearly
effected an entry into this country.19 See, e. g., United States v. Esperdy, supra,
210 F.Supp. at 790. And having accomplished such entry by fraudulent means,
they were entitled under section 1182(a)(19) neither to enter nor (at least until
such time as parole was granted) to reside in this country. See, e. g., United
States v. Bunker, 532 F.2d 1262 (9th Cir. 1976). However, counts two and
three of the indictment both relate to aliens who were formally paroled after
requesting asylum. In light of the discussion above, these counts fail to state a
crime under section 1324(a)(4) and the convictions under them must be
reversed.

26

With respect to the allegation of conspiracy to violate this provision, contained

in count one, the indictment and the judge's charge were ambiguous. Although
the court did instruct that "parole does not effect entry," it did not charge the
jury that it could convict of a conspiracy to violate 1324(a) (4) only if it found
a scheme to induce aliens to come to the United States as TWOV's and then to
escape from the control of immigration authorities. Indeed, other portions of the
charge conveyed the erroneous impression that a conviction was possible, not

only with respect to those aliens who fled the airport, but also as to those who
immediately applied for asylum. At no point did the court adequately
distinguish between these two groups of aliens, and it is apparent, based upon
the verdicts returned under counts two and three, that the jury failed to grasp
this distinction. Therefore, this portion of the indictment and charge was
similarly improper. Of course, count one also contained allegations of
conspiracy to defraud the United States under 18 U.S.C. 371 and conspiracy
to commit the offense of concealing material facts from, and making false
statements to, the INS under 18 U.S.C. 1001, 2. However, even if the jury's
verdict were supportable on either or both of these grounds, it is impossible to
conclude that the conspiracy conviction was not based on the 1324(a)(4)
charge. Faced with such an "ambiguous" verdict, we are compelled to reverse
the conviction under count one as well and remand for a new trial.20 See, e. g.,
Yates v. United States, 354 U.S. 298, 311-12, 77 S.Ct. 1064, 1072-73, 1
L.Ed.2d 1356 (1957); United States v. Moynagh, 566 F.2d 799, 804 (1st Cir.
1977), cert. denied, 435 U.S. 917, 98 S.Ct. 1475, 55 L.Ed.2d 510 (1978);
United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975), cert. denied, 425
U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976).
27

This disposition obviates the need to consider the additional contentions

advanced by the defendants.

28

Reversed and remanded.

Of the District of Massachusetts, sitting by designation

Aside from assisting political refugees, the parole device has been invoked for a
multitude of reasons, ranging from an alien's receiving medical treatment to his
serving as a witness. See generally, C. Gordon & H. Rosenfield, Immigration
Law and Procedure 2.54 (rev. ed. 1979). Parole frequently has been used as
well in lieu of detention when a determination of an arriving alien's
admissibility has been delayed. See, e. g., Leng May Ma v. Barber, 357 U.S.
185, 190, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958)

The fourth count was directed only at Sanharib Jallow, who later pleaded guilty
and testified for the government at trial. Count five, which charged
Kavazanjian with making a false statement to the INS in violation of 18 U.S.C.
1001, was withdrawn during trial

As described at trial, such persecution was characterized by imprisonment and

torture as well as a general curtailment of civil liberties

Neither of the defendants is a lawyer

There was evidence that the defendants had previously identified to Jallow
certain individuals in Athens who could provide these papers as needed, and a
suggestion that the passports were fraudulently prepared

One alien testified that his travel documents were initially prepared for Mexico
but later changed for Panama; he was informed by Jallow that the Mexico route
was no longer feasible because immigration officials in New York "knew about
it." Jallow also testified that, at one time, Kavazanjian instructed him to channel
the aliens through Boston because the New York route had "too many
problems."

When one prospective client balked at the price, Avedissian offered for a
reduced fee merely to get the alien out of the airport without obtaining any
immigration or working papers

Requests for asylum are submitted on Form I-589. 8 C.F.R. 108.1 (1980).
The district director in charge of a port of entry can request execution of this
form immediately following an asylum applicant's arrival and is empowered to
grant or deny parole if the request is clearly meritorious or clearly lacking in
substance. Id. 108.2; id. 212.5(a); INS Operations Instructions 108.1
(1974). More often, however, formal inspection of an applicant for asylum is
deferred; the alien is temporarily paroled into this country with instructions to
appear at an INS office with a completed I-589 on a specified date. This was
the procedure followed in the present case
There were several suggestions at trial that the methods employed by the
defendants to secure temporary parole for these aliens were of questionable
propriety. Kavazanjian was quoted on one occasion as boasting that he had "a
group posed in the Immigration Office." Avedissian in turn reportedly
cautioned Jallow not to arrange for flights on a certain date because "our man is
not on duty." In addition, there was evidence that Kavazanjian directed a group
of aliens to a specific window at the immigration counter which was occupied,
even though others at the time stood vacant. Whatever improprieties may have
occurred, however, were not a central part of the defendants' scheme. For
example, before rendering assistance to a group of aliens landing in Boston, the
defendants, accompanied by an attorney, consulted with the INS district
director to inform him of their intentions and to inquire about local procedures.
Moreover, the evidence did not show, nor has the government alleged, that the
asylum claims of any of these aliens were entirely lacking in merit; indeed, the
fact that none of the aliens has been returned to Iraq would suggest otherwise.
In these circumstances, the governing regulations make parole almost

automatic: "If the district director is satisfied as to the validity of the alien's
contention that he would be subject to persecution if he returns to his home
country, the alien shall be paroled. . . ." INS Operations Instructions 108.1(c)
(1974) (emphasis added).
9

Form I-589 calls for specific information from each applicant for asylum about
his personal history and the conditions in his native country. In particular, it
inquires, inter alia, whether a return to his country would subject him to
persecution because of race, religion, nationality, political opinion, or
membership in a particular social group; whether he has ever been detained,
interrogated, or imprisoned for any of these reasons; and whether he can
provide any documentation or evidence in support of his request

10

For example, the applications of three separate aliens each reply to an inquiry
about what would happen if they returned to their native country with the
comment: "I would be arrested immediately upon my arrival in Iraq . . .
(b)ecause I have expressed my opinions and I am against communism."

11

One alien at trial, for example, denied the validity of statements, contained in
an application which he received from the defendants and later submitted to the
INS, that he had been "tortured, interrogated and detained" in Iraq

12

Whether a defendant actually took part in an entry is irrelevant under this

provision; the offense is committed when the encouragement or inducement to
enter is given, even if no entry is ultimately made. E. g., United States v.
Castillo-Felix, 539 F.2d 9, 12 n.3 (9th Cir. 1976); United States v. NarvaezGranillo, 119 F.Supp. 556, 560 (S.D.Cal.1954). However, the encouragement
must of course relate to conduct that is capable of constituting an entry, if
pursued to a conclusion

13

None of these cases interpreted the term "entry" in the specific context of 8
U.S.C. 1324(a)(4); indeed, many of them were civil proceedings involving an
alien's claim to a deportation, as opposed to an exclusion, hearing. However,
like the Oscar court, we deem it "unlikely that Congress would define a term in
1101 for use throughout Chapter 12 if it intended the term to have different
meanings in different sections of the chapter." 496 F.2d at 494

14

Section 1255(a) provides that, if three specified conditions are met, "(t)he
status of an alien who was inspected and admitted or paroled into the United
States may be adjusted by the Attorney General, in his discretion and under
such regulations as he may prescribe, to that of an alien lawfully admitted for
permanent residence . . . ." (emphasis added)

15

In the case of a TWOV, it is unclear to whom these representations are made;

there was expert testimony at trial, for example, that a TWOV generally makes
no statements upon arrival to INS officials. Even if this were so, however, we
think an alien's assumption of TWOV status by itself constitutes an implicit
representation that he intends merely to transit through the United States before
again departing. See Reyes v. Neely, 228 F.2d 609, 611 (5th Cir. 1956), ("A
misrepresentation may be made as effectively by conduct as by words"); United
States v. Mount Fuji Japanese Steak House, Inc., 435 F.Supp. 1194, 1199 n.3
(E.D.N.Y.1977) (exhibition of tourist visa "might well constitute a fraudulent
act as much as an avowed statement" that purpose of entry was to visit)
16

The aliens' avowed lack of intention to continue on to their ostensible

destinations distinguishes the present case from Bong Youn Choy v. Barber,
279 F.2d 642 (9th Cir. 1960), and Brownell v. Carija, 254 F.2d 78
(D.C.Cir.1957). In each of those cases, the court characterized as nonfraudulent the conduct of an alien who visited the United States in good faith
for bona fide reasons, but with the further intention to remain here permanently
if permitted to do so lawfully

17

For this reason, the defendants were properly charged with conspiracy to
defraud the United States. See, e. g., Hammerschmidt v. United States, 265
U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924): "To conspire to defraud
the United States means primarily to cheat the Government out of property or
money, but it also means to interfere with or obstruct one of its lawful
governmental functions by deceit, craft or trickery, or at least by means that are
dishonest."

18

As discussed above, those aliens who sought political asylum and gained parole
were not "seek(ing) to enter the United States" and thus are not within the
literal purview of 1182(a)(19)

19

The fact that these aliens subsequently applied for political asylum at a regional
INS office does not counsel otherwise, for even a temporary evasion of the
inspection process suffices to produce an entry. See, e. g., Cheng v. INS, 534
F.2d 1018, 1019 (2d Cir. 1976); United States v. Martin-Plascencia, 532 F.2d
1316, 1317-18 (9th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d
177 (1976)

20

A retrial under these circumstances would not violate the double jeopardy
clause. See, e. g., Burks v. United States, 437 U.S. 1, 14-16, 98 S.Ct. 2141,
2148-2149, 57 L.Ed.2d 1 (1978); United States v. Tateo, 377 U.S. 463, 465, 84
S.Ct. 1587, 1588, 12 L.Ed.2d 448 (1964); United States v. Ball, 163 U.S. 662,
671-72, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896)