The opinion
Interim Decision #2862
MATTER OF "M/V EMMA"
In Fine Proceedings
MIA-10/12.1461.1
Decided by Board April .1 7, 1981
(1) Under section 273 of the Act, any bringing of an alien to the United States who does
not meet the visa requirements of the Act incurs liability for a $1000 fine.
(2)There is no provision for mitigation of fines imposed under section 273 of the Act.
(3) Section 273(e) permits remission (foregiveness in full) only where prior to the carrier's
departure from the last port outside the United States, 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.
(4) The carrier's liability for violations of section 273 is established by 1-94 forms which
indicate that passengers he brought to the United States were aliens who did not have
visas or other entry documents.
(5) The carrier is not entitled to remission under 273(c) on the basis of the argument that
he had implied consent from the United States government to bring Cuban refugees
to the United States because the government had not stopped private boat owners from
bringing such refugees to the United States.
(6)The carrier who proceeded to Cuba to pick up alien relatives in violation of the law and
bring them to the United States not only incurred a fine under section 273(c) as to the
relatives, but as to other Cubans whqm the government of Cuba forced upon the carrier,
since there was a failure of "due diligence" both in ascertaining the requirements of the
law and in placing the boat within the jurisdiction of the Cuban government under the
chaotic conditions that prevailed. .– --
In re: "M/V EMMA", which arrived at Key West, Florida, from Cuba, on June 5, 1980.
Alien passengers involved: Wises Carlos Dela Joe-Caballero, Lazard E. Lawson-
Brown, Orlando Moreno Camfillo, Eusebio Goitisolo Vildoste0o. Leonardo
- -
Capote-Marrero, Eduards Suguerlies-Seuedero, Wilfredo Gonzalez, Manuel Mil-
tares-Acosta, Ramon Perez-Ricardo, Erosuuo Reyes-Rauio, and Ciro Sanchez-Diaz
BASIS FOR FINE: Act of 1952—See. 273(a) [8 U.S.C. 273(a)}—Bringing to the United States
aliens not in possession of unexpired visas
ON BEHALF OF CARRIER: Nancy I. Fernandez, Esquire
201 Sevilla, Suite 310
Coral Gables, Florida 33134
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
-In a decision issued on January 5, 1981, a District Director imposed
administrative fines totalling $10,000 upon Mr. Rene Rodriguez for bring-
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Interim Decision #2862
ing 10 of the 11 above-named passengers to the United States in viola-
tion of section 273(a) of the Immigration and Nationality Act, 8 U.S.C.
1323(a). Pursuant to his prosecutorial discretion, the District Director
elected not to impose a fine in connection with the 11th passenger. Mr.
Rodriguez has appealed. The appeal will be dismissed.
The record shows that Mr_ Rodriguez and two associates departed
from the United States on April 25, 1980, bound for Cuba. On June 5,
1980, they returned to the United States with the above-named
passengers. The record contains a Form 1-94 for each of the passengers
(Exhibit I). These forms state that the passengers were aliens who did
not have visas or other entry documents.
A Notice of Intention to Fine was served on Mr. Rodriguez on the- day
of his return from Cuba, charging hint with 11 violations of section
273(a) of the Act; on the ground that he had 11 aliens on his boat who did
not have visas or other entry documents. Mr. Rodriguez filed a written
defense to those charges, and, on December 16, 1980, he appeared
before an immigration officer for a personal interview.
Mr. Rodriguez explained that he had been trying to bring his parents
to the United States from Cuba for 3 years when the boat lift operation
from Cuba started. He waited 4 or 5 days to find out whether the boats
going to Cuba would be stopped. When the boat lift operation had not
been stopped by the end of that period, he and two associates went to
Cuba to get 10 of their relatives. While they were in Cuba, they were
only able to bring three of their relatives on board their boat. However,
before they were permitted to leave Cuban waters, eight additional
passengers were put on board the boat by Cuban authorities. Conse-
quently, although they had intended to bring 10 relatives back to the
United States, they bought. back 8 Strangers and only 3 relatives. '
Section 273(a) of the Act provides that it shall be unlawful for any
person "to bring to the United States from any place outside thereof
(other than from foreign contiguous territory) any alien who does not
have an unexpired visa, if a visa was required under this Act or regula-
tions issued thereunder." Section 273(b) provides that the fine for each
violation of subsection (a) shall be $1,000.
It is important to emphasize that fines under section 273 of the Act
are imposed without regard to the intentions of the carrier. It is not
necessary for there to be a willful disregard of United States law. Under
section 273 the carrier becomes, in effect, an insurer that its alien pas-
sengers have met the visa requirements of the Act. Any bringing to the
United States of an alien who does not meet these requirements incurs
liability. Further, there is no provision for mitigation of such fines.
Matter of Swissair "Flight #104," 15 I&N Dec. 1 (BIA 1974). Section
273(c), however, permits remission (forgiveness in Tull) in one circum-
stance: where it appears that prior to the alien's departure from the last
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Interim Decision #2862
port outside the United States, the carrier did not know, and could not
have ascertained by the exercise of-reasonable diligence, that the indi-
vidual transported was an alien and that a visa was required. What
constitutes "reasonable diligence" varies according to the circumstances
of the ease. Matter qt' "S.S. Florida," 3 I&N Dec. 1 (BIA; A.G. 1948).
In this case, Mr. Rodriguez contends that the record does not estab-
lish that the above-named passengers were alieris without visas or other
entry documents. Secondly, he contends that in any event fines should
not be imposed for the passengers who were forced upon him by Cuban
authorities. Thirdly, he contends that the United States government
gave implied consent to the boat lift operation by not stopping the
flow of private boats between the United States and Cuba.
We first find tht the 1-94 forms in the record establish that the
above-named passengers were aliens who did not have visas or other
entry documents. Secondly, we reject Mr. Rodriguez' argument that
fines should not be imposed for the passengers who allegedly were
forced upon him by the Cuban authorities. As stated above, fines under
section 273 are imposed without regard to the carrier's intentions. Any
bringing of an alien who does not have proper documents incurs liability.
We find further that Mr. Rodriguez has not established a basis under
section 27(c) of the Act for remission of his fines. We are not persuaded
by his argument that he departed for Cuba on April 25, 1980, with
"implied consent" from the United States government to bring Cuban
refugees to this country. It was not reasonable for him to infer such
consent from the fact that private boat owners were still bringing Cuban
refugees to the United States after 4 or 5 days had passed. In any event,
however, it was not reasonable diligence on his part to rely upon such an
inference without making any inquiries, and he has failed to establish
that he could not by the exercise of reasonable diligence have ascer-
tained the requirements of the law. Furthermore, if he had exercised
reasonable prudence, he would not have placed himself and his boat
under the jurisdiction of the Cuban government in the face of the chaotic
circumstances that existed in Cuba at that time. We conclude, therefore,
that remission of the fines is not warranted.
We conclude that the decision of the District Director is correct_ The
appeal, accordingly, will be dismissed.
ORDER: The appeal is dismissed.
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