The opinion
Interim Decision #1922
MATTER OF M/V GUADALUPE!
In Fine Proceedings
SAJ-10/50.179
Decided by Board November 18, 1968
The carrier's contention that due diligence was exercised where the alien
presented a wax-sealed envelope from the American Consulate asserting it
contained the necessary visa, is rejected as a defense to fine liability
under section 273 (a) of the Immigration and Nationality Act for bringing
an alien without a visa, since under existing practice (22 CFR 42.124(a),
(b), (c) and (d)) the forms constituting the visa are not sealed.
BASIS FOR FINE: Act of 1952—Section 273(a) [8 U.S.C. 1323].
IN RE: M/V Guadalupe, which arrived at San Juan, Puerto Rico, from for-
eign, on March 22, 1968. Alien passenger involved: Rafael Cru-
zata-Lambert.
ON BEHALF OF APPELLANT: M. A. Gonzalez, Vice-President & Gen. Mgr.
International Shipping Agency, Inc.
P. O. Box 2748
San Juan, Puerto Rico 00903
This appeal is directed to an administrative penalty of $1,000
which the District Director at an Juan has ordered imposed on
the International Shipping Agency, Inc., as agents for a vessel,
for bringing to the United States from a place outside thereof,
other than foreign contiguous territory, the above-named alien
passenger who was not in possession of an unexpired visa and
was not exempt from the presentation of same by the statute or
the regulations promulgated pursuant thereto. The request for
cancellation of the fine must be denied and the appeal will be dis-
missed.
Rafael Cruzata-Lambert is a 24-year-old native and national of
Cuba, who arrived in the United States from Spain as a passen-
ger on this vessel, at the time, place and in the manner described
above. He was presented for immigration inspection as an appli-
cant for admission for permanent residence. He was in possession
of a valid passport, but he was not in possession of an unexpired
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Interim Decision * 1922
visa or other document valid in lieu thereof for admission into
the United States. Accordingly, liability to the fine has been
incurred, and this is uncontested.
Section 273 of the Immigration and Nationality Act makes no
provision for mitigation of a fine arising thereunder? However,
subsection (c) of the statute does provide for remission (forgive.
ness in full) of the penalty if, prior to the passenger's foreign
embarkation, the carrier did not know and could not have ascer-
tained by the exercise of reasonable diligence that he was an
alien and required but lacked a valid visa or lieu document. Since
the record shows that the carrier knew this passenger was an
alien, the only question remaining for our consideration is
whether it knew or could have ascertained by the exercise of due
diligence that he lacked a visa.
The carrier claims that when this passenger came for his ticket
he was accompanied by his parents, also Cuban nationals, and
that all were requested to present their United States visas. It
asserts that they showed the ticket agent a big wax-sealed enve-
lope from the American consulate in Bilbao, Spain, and declared
that it contained visas for each member of the family. It contends
that it could not open the official-envelope because it was sealed
and, therefore, had to take the aliens' word for the fact that the
envelope contained visas for all.
The record, however, contains a memorandum from the exam-
ining immigration officer, dated October 21, 1968. It sets forth
that visas for this alien's parents were packaged in the normal
manner, i.e., various documents were enclosed in a brown manila
envelope with appropriate Forms FS-511 for the parents
attached to the outside of the envelope with grommets and
ribbon. According to 22 CFR 42.124(a), (b), (c) and (d), Form
FS-511, with a Form FS-510 (Visa Application) attached
immediately beneath it, constitutes the visa; and the only docu-
ments which would be enclosed in a sealed envelope and could
only be examined by an immigration officer would be confidential
relating documents, but not the visa itself. Under these circum-
stances, we agree with the District Director that only a cursory
inspection was necessary on the carrier's part to ascertain that
this alien passenger was not in possession of the required visa.
Accordingly, we concur in said official's conclusion that due dili-
gence was not exercised in this matter, and that remission of the
1 Matter of Plane "CUT-480," 5 I. & N. Dec. 226.
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Interim Decision *1922
fine is not warranted. All we can add is that the carrier is
responsible for the acts of its representatives abroad.
ORDER: It is ordered that the request for cancellation of the
fine be denied; that the District Director's decision be affirmed;
and that the appeal be and the same is hereby dismissed.
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