Id. (quoting Matter of Pierre, 14 I. & N. Dec. 467 (1973)). When under surveillance, the alien "has still not made an entry despite having crossed the border with the intention of evading inspection, because he lacks the freedom to go at large and mix with the population."

In those instances, the aliens are entitled to due process protections. For example, Matter of Pierre, 14 I & N Dec. 467 (BIA 1973), is the landmark Board of Immigration Appeals decision regarding entry into the United States. Prior to the enactment of IIRIRA, aliens were treated with separate procedures for deportation or removal depending on whether they had made an entry into the country.

Case 1:16-cv-21868-DPG Document 8 Entered on FLSD Docket 05/26/2016 Page 12 of 19 13 Under the INA ' 101(a)(13), 8 U.S.C. ' 1101(a)(13)(1994), Aentry@ was defined as Aany coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise ... .@ The Board of Immigration Appeals (BIA), in Matter of Pierre, 14 I & N Dec. 467 (BIA 1973), formulated a more precise test as to what constitutes entry into the United States: An entry involves: (1) a crossing into the territorial limits of the United States, i.e. physical presence; (2)(a) an inspection and admission by an immigration officer or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint. As to the concept of Aphysical presence,@ the Second Circuit in Correa v. Thornburgh, 901 F.2d 1166 (2nd Cir. 1990), held that an alien who arrived by airplane from Guatemala, to Houston, Texas, was Aphysically present@ when she disembarked her flight in Houston.