MATTER OF AIRCRAFT “VT-DJK”
NYC-10/52.1037
In Fine Proceedings
Decided by Board June 22, 1967
Interim Decision #1744
Liability to fine lies under section 273(b) of the immigration and Nationality Act for bringing an alien passenger without a visa in violation of section 273(a) of the Act notwithstanding the carrier (signatory to an agreement pursuant to section 238(d) of the Act) alleges the passenger was “in transit” when, in fact, he was presented for inspection as a nonimmigrant visitor for businеss. BASIS FOR FINE: Act of 1952-Section 273(a) [8 U.S.C. 1323]. IN RE: Air-India Aircraft “VT-DJK” (Flight #105), which arrived at the port of New York from foreign on August 31, 1966. Alien passenger involved: John Ashlyn.
James E. Landry, Vice Pres. and James R. Gorson, Director; Air Transport Association of America; 1000 Connecticut Avenue, N.W.; Washington, D.C. 20036 (Amicus Curiae brief filed; also presеnt oral argument)
ON BEHALF OF SERVICE: Irving A. Appleman, Appellate Trial Attorney (Oral argument)
The District Director at New York, finding no justification whatsoever for remission thereof, has ordered аn administrative penalty of $1,000 imposed on Air-India, as owners, agents, charterers, or consignees of the above-described aircraft, for bringing to the United States from a рlace outside thereof, other than foreign contiguous
The person named above, a citizen of Great Britain arrived in the United States as a passenger at the time, place, and in the manner described above. He applied for admission as a nonimmigrant temporary visitor for business. He presented a valid British passport, but he was not in possession of an unexpired visa authorizing his admission to the United States. He was paroled into the United States to accomplish the purpose of his visit, upon the condition that his departure from this country be effected on or before September 15, 1966. Apparently, this condition was met.
It is no defense to imposition of this fine thаt the carrier was signatory to an Agreement (Form I-426) entered into between it and the Commissioner, pursuant to
In connection with the foregoing, it is of no assistance to the carrier that it agreed with the passenger, prior to his embarkаtion in London, that in the event the Service should refuse to admit him upon arrival at New York, he would then be presented as an “in-transit” passenger and returned to London. The manifest intention of the Congress, as appears from the plain language of the statute, was to subject carriers to a penalty for taking on board and bringing to the United States aliens not in possession of the required documents. If the carrier were to escape such penalty because of developments subsequent to arrivаl in the United States and exclusion of the alien passenger, the carrier
The only conditions under which the penalty mаy not be imposed are stated in
The foregoing moots the question, raised by the appellant, in the amicus curiae brief, аnd by the District Director, of whether aliens proceeding from Europe to the United States and back to Europe may properly be considered as “in-transit” within the terms of the Agreement. It also adequately answers the carrier‘s contention that it was advised by an immigration officer on duty at the time of the alien passenger‘s arrival in the Unitеd States that it would not be prejudiced for bringing him here without a visa. The reason, again, is that liability to the fine had already been incurred.
The carrier‘s situation in this respect is not altered by the fact that the alien passenger was paroled into this country to accomplish the purpose of his trip. That is because the passenger‘s рarole did not constitute his “admission” into the United States. In the eyes of the law, after the parole he stood at the threshold of this country seeking admission (Leng May Ma v. Barber, 357 U.S. 185). Thus, the action оf the Service in paroling the alien passenger had no bearing whatsoever upon the question of the carrier‘s liability to the fine for bringing him to this country from foreign without proper documents, or upon the question of remission thereof.
It is of no assistance to the carrier that the alien passenger told its representative abroаd that he would not remain in the United States for the reason that he would be able to transact his business at the airport. As hereinbefore indicated, the alien was not entitlеd to be presented as an in-transit alien, and he was not so presented. The fact that he only intended to remain in the United States for a brief period of time is immaterial.
We find it to be of no consequence here that, in order to reduce this country‘s balance-of-payments deficit, and to aid foreign travelers desiring to spend brief periods in the United States en route to “Expo 67” in Canada or the up-coming Olympic games in Mexico,
We likewise find herein no basis for remitting this fine, on the theory that the carrier did not know and could not have ascertained by the exercise of reasonable diligence that the passenger, who was known to be an alien insofar as the United States is concerned, required but lacked a visa. The record clearly reflects that the carrier knew that the alien passenger did not havе a visa, but nevertheless embarked him for transportation to the United States. It did not present him for inspection as an alien being brought within the Agreement, or in any way indicate thаt he was being transported within the terms thereof. Actually, the carrier‘s claim that the fine should be remitted herein depends upon the assertion that the alien passengеr had to proceed urgently from London to New York at such short notice that he had no time to obtain a visa. Unfortunately for the carrier, however, action on its part based on considerations of expediency peculiarly personal to the passenger does not constitute the due diligence contemplated by the statute.
ORDER: It is ordered that the appeal be and the same is hereby dismissed.