MIA-10/61.133
Decided by Board April 3, 1958
Fine — Section 273 of the 1952 act — Penalty not imposed for bringing immigrant to U.S. without proper documents where alien is beneficiary of standing waiver published in the regulations.
Transportation company is relieved of fine liability under section 273 of the Immigration and Nationality Act for bringing an immigrant to the United States without a proper visa where such person is admitted under the authority of a published regulation and the regulation in express terms provides that a visa is not required when a waiver is granted. (Cf. 6 IN Dec. 262, 810.)
BASIS FOR FINE:
Act of 1952-Section 273 ( 8 U.S.C. 1323).
BEFORE THE BOARD
Discussion: This appeal in administrative fine proceedings is directed to a penalty of $1,000 which has been ordered imposed on Compania Cubana de Aviacion, owners and/or agents of Plane "CUT-604," which arrived at the port of Miami, Florida, from foreign on September 7, 1957, for bringing to the United States the alien passenger L---- F---- G---- y G---- who was not in possession of an unexpired visa or valid lieu document. The appeal will be sustained and the fiine will not be permitted to stand.
The passenger is a 3-year-old female alien, a native and national of Cuba, who arrived in the company of her parents. She presented a valid passport showing a previous lawful admission to the United States for permanent residence, but she did not present a valid visa or lieu document. However, she was granted a documentary waiver and admitted as a lawfully returning permanent resident alien. The record indicates that the waiver was granted under 8 CFR 211.3, but we assume that this was an inadvertent reference to 8 CFR 211.1 (b) (3), amended August 9, 1957, and will dispose of the matter accordingly.
The issue is whether the alien's admission under the waiver relieved the carrier of liability to fine. We have previously answered this question both affirmatively and negatively, depending on the regulations in effect at the time involved. The latest revision of the regulations necessitates re-examination of the problem.
On August 3, 1954 ( Matter of Plane CCA "CUT-532," 6 IN Dec. 262), we held that liability to fine had not been incurred where a lawfully returning resident alien was admitted under a waiver granted pursuant to 8 CFR 211.3, which then read:
Immigrants not required to present visas. Aliens of the following-described classes * * * who are otherwise admissible, who have been lawfully admitted to the United States for permanent residence, and who are applying for admission to the United States after a temporary absence, are not required to present visas: * * *
(e) Any alien in whose particular case a waiver of the visa requirement is granted * * * upon a determination * * * that presentation of a visa is impracticable because of emergent circumstances over which the alien has no control and that undue hardship would result to such alien if such presentation is required: * * *.
We pointed out that the regulation as thus phrased created a blanket visa waiver, and that a visa was not required because a waiver in an individual case had been granted. Therefore, we concluded that liability to fine had not been incurred because the statute only applied to the bringing of aliens without a visa "if a visa was required under this Act or regulations issued thereunder."
However, on December 19, 1955 ( Matter of PAA Plane Flight 204, 6 IN Dec. 810), we held that it was not a defense to imposition of a fine that, after arrival, a returning resident alien was granted a visa waiver under 8 CFR 211.3 which, as amended December 24, 1954, read:
Authority to grant individual waivers. Any alien * * * who has been lawfully admitted to the United States for permanent residence and who is applying for admission to the United States after a temporary absence may be granted * * * a visa waiver * * * upon a determination * * * that presentation of a visa * * * is impracticable because of emergent circumstances over which the alien has no control and that undue hardship would result to such alien if such presentation is required: * * *.
That decision was based on our April 1, 1954 opinion ( Matter of SS. "Florida," 6 IN Dec. 85; affirmed, Peninsular Occidental Steamship Co. v. United States, 242 F. (2d) 639), holding that an individual documentary waiver granted a nonimmigrant after arrival in the United States, on the basis of an unforeseen emergency, did not constitute a defense to imposition of a fine. Said waiver was granted under section 212 (d) (4) of the Immigration and Nationality Act ( 8 U.S.C. 1182), providing that:
Either or both of the requirements (visa and passport) of paragraph (26) of subsection (a) may be waived by the Attorney General and the Secretary of State acting jointly (A) on the basis of unforeseen emergency in individual cases, * * *.
We distinguish that situation from one involving a standing or blanket general waiver granted jointly by the Attorney General and the Secretary of State and published in the regulations under the authority of section 212 (d) (4) (B) and (C) of the act, in which case a fine would not lie.
Waivers under section 212 (d) (4) (A) were first published in the regulations on October 20, 1956 ( 21 F.R. 8075). 8 CFR 212.1 (a) (7) and 212.1 (b) (16), amended effective January 8, 1958, now provide for blanket type waivers in (A) type cases, just as in (B) and (C) types.
The waiver in the present case was granted under 8 CFR 211 which, as amended August 9, 1957, reads:
§ 211.1 Visas. A valid unexpired immigrant visa shall be presented by each arriving immigrant alien except an immigrant who * * * (b) * * * (3) satisfies the district director in charge of the port of entry that there is good cause for the failure to present the required document, * * *.
The clear meaning of the regulations as now written is that a blanket general waiver applied as to this returning immigrant alien. But this is the precise situation which existed under 8 CFR 211.3, under which we decided Matter of Plane CCA "CUT-532," supra. Therefore, the decision in that case is controlling here, and we so hold. That is, we still conclude that a carrier is not subject to a fine when it brings to the United States an alien who is the beneficiary of a standing waiver published in the regulations. Again, the reason is that the statute provides for a penalty only if a visa is required and under this regulation, which has the force and effect of law, a visa is not required.
Order: It is ordered that the appeal be sustained and that the penalty be not imposed.