F-0606-1549.
Decided by Board April 1, 1954.
Fine — Section 273 of the Immigration and Nationality Act — Individual waiver of nonimmigrant documents not defense to imposition of penalty thereunder.
(1) An individual waiver of documents granted a nonimmigrant under section 212 (d) (4) (A) of the Immigration and Nationality Act on the basis of unforeseen emergency subsequent to arrival in the United States does not constitute a defense to the imposition of administrative penalty under section 273 of the act.
(2) The foregoing situation is distinguishable from a case involving a standing 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 situation a fine would not lie.
IN RE: SS. Florida, which vessel arrived at Miami, Florida, from Havana, Cuba, on either July 7 or 8, 1953. Alien passengers involved, R---- E---- de la N---- G---- and S---- M---- F---- y F----.
BEFORE THE BOARD
Discussion: This matter is before us by reason of a motion filed by counsel requesting reconsideration of the decision and order of this Board bearing date January 29, 1954. In that decision an appeal from the determination of the District Director of Immigration and Naturalization, Miami, Fla., bearing date September 9, 1953, was dismissed. On the occasion of that determination a fine in the amount of $2,000, $1,000 for each alien involved, was imposed upon the Peninsular and Occidental Steamship Company, owners and agents of the aforementioned vessel, which vessel arrived at the port and on the date hereinabove set forth from a foreign port or place for violation of section 273 of the Immigration and Nationality Act ( 8 U.S.C. sec. 1323).
Inasmuch as the statute was set out at length in our prior opinion it is unnecessary to set it out here at length again.
Referring to section 273 (a) of the Immigration and Nationality Act, it will be observed that the carrier is subject to a fine for bringing to the United States from any place outside thereof any alien who does not have an unexpired visa, "if a visa was required under this act or regulations issued thereunder."
Section 273 (c) of the said act permits the remission or refund of the amount of penalty if the carrier establishes to the satisfaction of the Attorney General that, prior to the departure of the vessel from the last foreign port, the carrier did not know and could not have ascertained by the exercise of reasonable diligence "that the individual transported was an alien and that a visa was required" ( 8 U.S.C. section 1323 (c)).
The specific violation found both by the Service and by this Board was bringing to the United States from a place outside thereof the two alien passengers, as aforesaid, who were not in possession of unexpired nonimmigrant visas as required by the provisions of the statute, and they were excluded from admission to the United States following their arrival under and pursuant to the provisions of section 212 (a) (26) (B) of the Immigration and Nationality Act ( 8 U.S.C. section 1182 (a) (26) (B)).
8 C.F.R. section 212.1 provides, among other things:
Except as otherwise provided in the Immigration and Nationality Act * * * an alien * * * who applies for admission to the United States as a nonimmigrant shall present a valid unexpired nonimmigrant visa issued to him under the nonimmigrant classification in which he seeks admission * * *.
Counsel on the present motion contends (1) that the order of this Board of January 29, 1954, is contrary to the law and the evidence; (2) that it affirmatively appears that the Board failed to give consideration to certain factors which were stressed at the oral argument before this Board; (3) that the Board should meet squarely (and not pass over sub silentio) the " nunc pro tunc waiver" of documentary requirements as affecting not only the aliens but also the carrier; and (4) that the decision of this Board is contrary to the whole purpose and intent of the Immigration and Nationality Act.
The specific questions raised by counsel on the present motion are predicated upon the effect of waiver of the nonimmigrant passport visa.
It is contended by counsel on the present motion that the alleged " nunc pro tunc waiver" was in legal effect a waiver of the visa requirements as of the time of application for entry. With this contention we cannot agree for the reasons already set forth and for the further reason that the facts contained in the record are contrary to the contention of counsel.
At the time of application for admission to the United States made by these two passengers they were found to be not in possession of unexpired valid nonimmigrant visas as hereinafter more definitely explained.
In addition, counsel avers that there were no visa requirements in effect at the time of application made by these two aliens for entry and that there was no violation on the part of the carrier because a " nunc pro tunc waiver" of visa requirements is in legal effect the same as if there had been no visa requirements at all at the time of application.
Again, as herein set forth, the premises advanced by counsel are faulty, because these two aliens were refused admission to the United States under and pursuant to the provisions of section 212 (a) (26) of the Immigration and Nationality Act ( 8 U.S.C. section 1182 (a) (26)) which section clearly provides "Except as otherwise provided in this Act, the following classes of aliens * * * shall be excluded from admission into the United States: Any nonimmigrant who is not in possession of * * * (B) at the time of application for admission a valid nonimmigrant visa * * *."
The evidence of record shows that R---- E---- de la N---- G---- and S---- M---- F---- y F----, husband and wife, both natives and citizens of Cuba, presented valid passports at the time of their arrival. Both passports contained nonimmigrant visas issued by the American Vice Consul in Havana, Cuba, under and pursuant to the provisions of section 3 (2) of the Immigration Act approved May 26, 1924 (8 U.S.C. section 203). These visas permitted a visit to the United States and, following a prior visit to this country, were no longer valid, they being valid for a single entry only.
As heretofore set forth in the opinion of this Board of January 29, 1954, had the steamship company's representatives interrogated these aliens carefully, the foregoing facts could have been ascertained without difficulty.
After arrival and subsequent to careful examination and inspection these aliens were found inadmissible to the United States, and accordingly were refused admission pursuant to law as herein set forth. Following their arrival and subsequent to their exclusion application was made to the Department of State for waiver of documentary requirements and that waiver was granted in order to eliminate the cause for their exclusion. As we understand it, this is not a nunc pro tunc waiver, but a permissible waiver granted subsequent to arrival. Certain waivers of nonimmigrant visa requirements have been granted under the authority of the act and we must necessarily inspect the act itself to ascertain whether on this occasion a nonimmigrant visa was not required, so it can be seen readily that the visa was as a matter of fact required, and so we likewise look to the act because of the statutory requirements whether or not a penalty has been incurred if visa is required by the law and regulations under the authority of the act.
No penalty is incurred by a carrier which brings to the United States an alien who comes within the standing waivers granted by the Attorney General and the Secretary of State jointly published in the regulations under the authority of classes (B) and (C) of section 212 (d) (4) of the act. The instant case was not one within those provisions.
In the instant case a different result follows with respect to the individual waivers granted subsequent to arrival and following exclusion. The manifest intention of Congress as appears from the plain language of section 273 of the Immigration and Nationality Act was to subject carriers to a penalty for taking on board and bringing to the United States aliens not in possession of required documents. If the carrier were to escape such penalty merely because the documents were waived subsequent to arrival and following exclusion, the carrier would be in a position of being permitted to speculate upon the administration and enforcement of the law. When a carrier takes on board and brings a nonimmigrant to the United States not in possession of the documents required by law and regulation, it has thereby incurred the administrative penalty specified in section 273 of the Immigration and Nationality Act.
If in the case of an individual alien a waiver of the documents is lawfully granted by the Attorney General and the Secretary of State on the basis of an unforeseen emergency as in the present case, there is nothing in the law as alleged by counsel which automatically removes from the carrier the liability already incurred.
The only conditions under which a penalty may not be imposed are stated in subsection (c) of section 273, which provides that a carrier is exempt from a fine if prior to the departure of the vessel from the last port outside the United States he did not know and could not have ascertained by the exercise of reasonable diligence that the individual transported was an alien and that a visa was required.
The situation here is analogous to that in the Hamburg American Line v. United States, 291 U.S. 420 (1934), in which the Supreme Court held that a waiver of documents under section 13 (b) of the Immigration Act approved May 26, 1924 (8 U.S.C. section 213 (b)) did not relieve the carrier of the penalty incurred under section 16 of that act for bringing an alien without an immigration visa (8 U.S.C. section 216). That decision took into consideration the provisions of section 13 (f) of the said act, which declared that nothing contained in section 13 should authorize the remission or refunding of a fine, liability to which had accrued under section 16. The court pointed out particularly that the fine had been incurred for bringing the alien without the visa, and that there was nothing in the said section 13 which constituted an absolute defense to that liability.
Section 273 (a) does not set up a defense to liability under that section which can be predicated upon a waiver of documents granted aliens in individual cases.
In the instant case it is clearly established that the passengers herein were not carefully interrogated prior to their embarkation as is required by the burden placed upon them, as pointed out in our previous decision, and there is nothing which would have manifested that the aliens were required to have nonimmigrant visas that could not have been ascertained by the exercise of reasonable diligence prior to the departure from foreign territory. Therefore, a violation of section 273 of the Immigration and Nationality Act applied at the time of arrival of the aliens and despite the waiver granted subsequent thereto, fine has been incurred by the carrier.
On the basis of all of the foregoing, it is the conclusion of this Board that the waiver of documentary requirements, to wit: nonimmigrant visas, granted these alien passengers following their exclusion from admission to the United States and subsequent to arrival, does not constitute a defense or bar to the imposition of the administrative penalty under section 273 of the Immigration and Nationality Act ( 8 U.S.C. section 1323) and it, therefore, becomes necessary to deny the carrier relief from liability.
Order: It is ordered that the motion for relief from liability from imposition of penalty be and the same is hereby denied.