Interim Decision #3388

Interim Decision #3388

In re Air India Airlines Flight No. AI 101

File NYC 932639 - New York

Decided May 4, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A carrier is subject to fine under section 273(a) of the Immigration and Nationality Act,

8 U.S.C. § 1323(a) (Supp. V 1993), for bringing an alien passenger without proper documents

to the United States even though the alien passenger is a lawful permanent resident who was

subsequently granted a waiver under 8 C.F.R. § 211.1(b)(3) (1994).

Jonathan A. Fuchs, Esquire, Brooklyn, New York, for carrier

Karl D. Klauck, Acting Appellate Counsel, for the Immigration and Naturalization Service

Before:

Board Panel: HOLMES, HURWITZ, and VILLAGELIU, Board Members.

HURWITZ, Board Member:

In a decision dated November 5, 1993, the acting director of the

Immigration and Naturalization Service National Fines Office (“director”)

imposed an administrative fine in the amount of $3000 on the carrier for one

violation of section 273(a) of the Immigration and Nationality Act, 8 U.S.C.

§ 1323(a) (Supp. V 1993). The carrier appealed from that decision. In a

decision dated April 2, 1997, the Board sustained the appeal and remanded

the record for further proceedings. In a decision dated September 5, 1997,

the director denied the carrier’s request for remission. In an order dated

March 1, 1999, the Board accepted jurisdiction of the appeal by certification pursuant to 8 C.F.R. § 3.1(c) (1999). On March 8, 1999, the carrier

requested oral argument. The appeal will be dismissed and the request for

oral argument is denied.1

1

A prior request for oral argument was previously granted and oral argument was held

on March 19, 1996.

681

Interim Decision #3388

I. BACKGROUND

The carrier brought the above-named alien passenger to the United

States from India on August 17, 1993. Although the alien passenger was a

lawful permanent resident of the United States, she did not have an Alien

Registration Receipt Card (Form I-551) or reentry permit in her possession

when she was presented for inspection. The passenger was determined by

the Service to be a national and citizen of India and a lawful permanent resident of the United States. Subsequent to her arrival, she was granted a visa

waiver on Form I-193 (Application for Waiver of Passport and/or Visa) pursuant to 8 C.F.R. § 211.1(b)(3) (1994). On August 24, 1993, the district

director issued a Notice of Intention to Fine under Immigration and

Nationality Act (Form I-79), in which he alleged that the carrier was liable

for a $3000 fine under section 273 of the Act for bringing an alien to the

United States from India without an unexpired visa or reentry permit.

In correspondence dated August 16, 1993, the carrier disputed that fine

liability existed because the alien passenger was granted a waiver under 8

C.F.R. § 211.1(b)(3). In its submission the carrier admitted that when the

alien passenger boarded the plane in Bombay, India, on August 17, 1993, its

agents permitted the alien passenger to board the flight in question after

having processed the alien as a native and citizen of India and a lawful permanent resident of the United States who was in possession of a valid passport but not in possession of an immigrant visa or documents in lieu thereof pursuant to 8 C.F.R. § 211.1. The carrier claims, however, that because

the alien passenger was subsequently granted a waiver under 8 C.F.R. §

211.1(b)(3), no fine liability exists, as the alien was not required to possess

a visa as a result of the waiver. The carrier cites Matter of Plane CCA CUT

532, 6 I&N Dec. 262 (BIA 1954), and Matter of Plane “CUT-604”, 7 I&N

Dec. 701 (BIA 1958). In those cases it was held that a carrier is relieved of

fine liability under section 273 of the 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 provides in express

terms that a visa is not required when a waiver is granted.

After consideration of the carrier’s arguments, the director found that

fine liability did exist and imposed a $3000 fine on the carrier on November

5, 1993. On appeal, the carrier renews its arguments that it is not liable for

a fine when a waiver has been granted to the alien under 8 C.F.R. §

211.1(b)(3).

II. SECTION 273 AND APPLICABLE REGULATIONS

Section 273(a) of the Act provides that it shall be unlawful for any person including a transportation company “to bring to the United States from

682

Interim Decision #3388

any place outside thereof (other than from foreign contiguous territory) any

alien who does not have a valid passport and an unexpired visa, if a visa was

required under this Act or regulations issued thereunder.”2 Section 211(b) of

the Act, 8 U.S.C. § 1181(b) (1994), provides that, under such conditions as

may be by regulations prescribed, returning resident immigrants who are

otherwise admissible may be readmitted to the United States by the

Attorney General in her discretion without being required to obtain a passport, immigrant visa, reentry permit, or other documentation. For fine purposes under section 273, whether an alien passenger actually was a lawful

permanent resident is not conclusive. The dispositive factor is whether the

alien has proper entry documents in his possession at the time of his arrival.

See Matter of “M/V Emma”, 18 I&N Dec. 40 (BIA 1981). Fine liability

cannot necessarily be avoided on the basis of the fact that the alien passenger

was eventually admitted to the United States as a returning lawful permanent

resident. See Matter of M/V “Runaway”, 18 I&N Dec. 127 (BIA 1981).

Fine liability is determined as of the time an alien is brought to the

United States and pursuant to the regulations in effect at that time. Matter

of Plane “CUT-604”, supra. The relevant regulation in effect at the time of

the alien passenger’s arrival, 8 C.F.R. § 211.1, provided in pertinent part:

Visas.

(a) General. A valid unexpired immigrant visa shall be presented by each arriving

immigrant alien applying for admission to the United States for lawful permanent residence, except as [sic] immigrant alien who: (1) Is a child born subsequent to the

issuance of an immigrant visa to accompanying parent . . . or (2) is a child born during the temporary visit abroad of a mother who is a lawful permanent resident alien,

or a national, of the United States . . . .

(b)(1) Alien Registration Receipt Card . . .—(i) Alien not travelling pursuant to government orders. An Alien Registration Receipt Card may be presented in lieu of an

immigrant visa by an immigrant alien who is returning to an unrelinquished lawful

permanent residence in the United States . . . (ii) Alien traveling pursuant to government orders. An Alien Registration Receipt Card, including an expired Alien

Registration Receipt Card issued to a conditional resident may be presented in lieu of

an immigrant visa by an immigrant alien who is returning to an unrelinquished lawful

permanent residence in the United States . . . .

(2) Reentry permit. Any immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad may present a

valid unexpired reentry permit . . . .

(3) Waiver of visas. An immigrant alien returning to an unrelinquished lawful per-

2

We note that section 273(a) of the Act has been redesignated as section 273(a)(1) by

section 308(c)(3)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-616 (effective Apr. 1,

1997), but that amendment does not affect our decision in this case.

683

Interim Decision #3388

manent residence in the United States after a temporary absence abroad who satisfies

the district director in charge of the port of entry that there is good cause for his failure to present an immigrant visa, Form I-151 or I-551, or reentry permit may, upon

application on Form I-193, be granted a waiver of that requirement.

8 C.F.R. § 211.1 (1994).

III. ISSUES PRESENTED

On appeal the carrier asserts that it exercised reasonable diligence in

boarding the alien passenger because it maintains that the waiver granted to

the passenger under 8 C.F.R. § 211.1(b)(3) is a “blanket waiver,” i.e., a waiver that is categorically applied to a specified group of aliens to exempt them

from presentation of documents. It maintains that the regulations at issue in

this case are identical in effect to the applicable regulations in Matter of Plane

CCA Cut 532, supra,3 and Matter of Plane “CUT-604”, supra.4

In its defense the carrier also notes that when the regulation at issue in

this case was promulgated in 1966, it was issued as a final rule without invitation for comment. The carrier maintains that this procedure was used

because the Attorney General deemed unnecessary compliance with the

provisions of Title V, section 553 the Administrative Procedure Act, 5

The applicable regulation in Matter of Plane CCA Cut 532 provided:

3

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: . . .

8 C.F.R. § 211.3 (1954), quoted in Matter of Plane CCA Cut 532, supra, at 702.

The applicable regulation in Matter of Plane “CUT-604” provided:

4

Visas. A valid unexpired immigrant visa shall be presented by each arriving immigrant alien except an immigrant who (a) was born subsequent to the issuance of an

immigrant visa to his accompanying parent and applies for admission during the validity of such a visa, or (b) is returning to an unrelinquished lawful permanent residence

after a temporary absence abroad (1) not exceeding one year . . . or (2) presents a valid

unexpired reentry permit . . . , or (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, in

which case an application for waiver shall be made on Form I-193.

8 C.F.R. § 211.1 (1957), quoted in Air Espana v. Brien, No. 95-CV-1650, 1997 WL 46992, at

*13 (E.D.N.Y. June 18, 1997).

684

Interim Decision #3388

U.S.C. § 551, as it was felt the rule confers “benefits on persons affected

thereby.” See 31 Fed. Reg. 13,387 (1966). The carrier argues that, as this

same procedure was followed when the 1957 regulation was issued, see 22

Fed. Reg. 6377 (1957), the 1966 regulations should be deemed to have the

same interpretation.

The carrier also asserts that it is the intent of Congress to exonerate carriers when passengers are granted documentary waivers under the regulations. It notes that the Attorney General, in response to the Board’s decision

in Matter of PAA Plane Flight 204, 6 I&N Dec. 810 (BIA 1955), which

found that the regulations provided for an individual waiver and thus the

carrier was liable for a fine, amended the regulation in 1957 to confer a

blanket waiver.

In its defense the carrier also cites the version of 8 C.F.R. § 211.1(b)(3)

as it was revised on March 6, 1997.5 It notes that the comments accompanying the regulation state that the express purpose of the revision was to make

it “easier to comprehend.” 62 Fed. Reg. 444, 453 (1997). The carrier maintains that, as it is clear that no fine liability exists under this regulation,6 a similar interpretation is warranted for the regulation at issue in its case.

The Service asserts that it properly fined the carrier because the document waiver under 8 C.F.R. § 211.1(b)(3) is not a blanket waiver under the

relevant regulations, but an individual one. It argues that the regulation at

5

In pertinent part, the regulation, which was issued as a proposed regulation on January

3, 1997, and as an interim regulation on March 6, 1997, provides as follows:

(a) General. Except as provided in paragraph (b) of this section, each arriving alien

applying for admission . . . into the United States for lawful permanent residence, or as a lawful permanent resident returning to an unrelinquished lawful permanent residence in the

United States, shall present one of the following:

....

(b) Waivers. . . .

(3) If an immigrant alien returning to an unrelinquished lawful permanent residence in

the United States after a temporary absence abroad believes that good cause exists for his or

her failure to present an immigrant visa, Form I-551, or reentry permit, the alien may file an

application for a waiver of this requirement with the district director in charge of the port-ofentry. To apply for this waiver, the alien must file Form I-193, Application for Waiver of

Passport and/or Visa . . . . In the exercise of discretion, the district director in charge of the

port-of-entry may waive the alien’s lack of an immigrant visa, Form I-551, or reentry permit

and admit the alien as a returning resident, if the district director is satisfied that the alien has

established good cause for the alien’s failure to present an immigrant visa, Form I-551, or

reentry permit.

62 Fed. Reg. 10,346-47 (1997); see also 8 C.F.R. § 211.1 (1998).

6

The carrier, in making this assertion, evidently relies on comments made by Service

officials to its attorneys. See Air Espana v. Brien, No. 95-CV-1650, 1998 WL 178823, at *1

(E.D.N.Y. Feb. 11, 1998).

685

Interim Decision #3388

issue is similar in terminology to the one discussed in Matter of PAA Plane

Flight 204, supra, in which the Board held that the carrier could be lawfully fined although the alien passenger was granted a waiver.7 The Service

therefore maintains that fine liability is proper. In its response, the Service

also notes that on July 22, 1998, the regulations were again amended to

make the waiver under 8 C.F.R. § 211.1 an individual waiver, subjecting a

carrier to a fine. See 63 Fed. Reg. 39,217 (1998).

IV. DISCUSSION

It is well established that a regulation promulgated by the Attorney

General has the force and effect of law as to this Board. Matter of Fede, 20

I&N Dec. 35 (BIA 1989). As the wording and effect of 8 C.F.R. § 211.1 has

changed a number of times over the years, we must examine the wording of

the regulations in effect at the time of the passenger’s arrival in the present

case. In this assessment we find that a visa or other entry document was

required under the regulatory provisions which control this case, and that

the granting of the alien passenger’s waiver request did not free the carrier

from fine liability. In our examination of the regulations, we find that the

regulations in effect at the time of the alien passenger’s arrival have the

same legal effect as those governing the result in Matter of PAA Plane

Flight 204, supra. The regulations in that case provided that

[a]ny 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 emergency circumstances over which the

alien has no control and that undue hardship would result to such alien if such presentation is required . . . .

8 C.F.R. § 211.3 (1955), quoted in Matter of PAA Plane Flight 204, supra,

at 811. In that case it was held that this regulation did not create a blanket

waiver under section 211(b) of the Act.

As amended on December 24, 1954, the relevant regulation provided, in part:

7

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: . . .

8 C.F.R. § 211.3 (1954), quoted in Matter of PAA Plane Flight 204, supra, at 811.

686

Interim Decision #3388

In the present case, 8 C.F.R. § 211.1(a) (1994) provided that a valid

unexpired visa had to be presented by each arriving immigrant alien

applying for admission to the United States for lawful permanent residence, except an immigrant alien who was a child born subsequent to the

issuance of an immigrant visa to his accompanying parent and fulfilled

other requirements, or who was a child born abroad of a mother who was

a lawful permanent resident or national of the United States and who fulfilled additional requirements. 8 C.F.R. § 211.1(b)(3) (1994) provided

that

[a]n immigrant alien returning to an unrelinquished lawful permanent residence in the

United States after a temporary absence abroad who satisfies the district director in

charge of the port of entry that there is good cause for his failure to present an immigrant visa, Form I-151 or I-551, or reentry permit may, upon application on Form I193, be granted a waiver of that requirement.

Under such regulatory scheme, a visa, Form I-551, or reentry permit was

required of the alien passenger in this case, subject to waiver on an individual basis under 8 C.F.R. § 211.1(b)(3).

Notwithstanding the carrier’s claims to the contrary, we find that the

present regulatory scheme is not analogous to the situations in Matter of

Plane CCA CUT 532, supra, and Matter of Plane “CUT-604”, supra. In

both of those cases, the regulations under 8 C.F.R. § 211 were written in a

manner to make clear that a visa was not required of a returning permanent

resident if a waiver had been granted.

The carrier asserts that an interpretation of the regulations which

results in fine liability does not comport with the intent of Congress, but

such argument has been rejected by the Board in other decisions concerning similarly worded regulations. See Matter of PAA Plane Flight 204,

supra; Matter of SS. Florida, 6 I&N Dec. 85 (BIA 1954) (holding that

although a nonimmigrant was granted an individual waiver after arrival,

a fine was properly assessed). The carrier also maintains that amendment

of the regulations by the Attorney General in 1957 and in 1997 to provide

for a blanket waiver shows the intent of the Attorney General (and

Congress) to provide such a waiver. We note, however, that the 1954 regulations provided for an individual waiver (and fine liability), and we find

in this case that fine liability exists under the regulations here.

Consequently, it is evident that the regulatory scheme has varied over the

years, including most recently in 1997 and 1998. The carrier also notes

that comments accompanying the 1997 version of 8 C.F.R. § 211.1 reflect

that such regulation, which provided for a blanket waiver (and no fine liability for carriers), did not constitute a substantive change. However, such

argument is clearly undermined by the 1998 revision. More importantly,

such revisions of the regulatory scheme over the years serve to underscore

the principle that fine liability is based on the wording of the regulations

687

Interim Decision #3388

in effect at the relevant time.8

ORDER: The appeal is dismissed.

8

The carrier notes that the commentary accompanying the issuance of the 1966 regulation stated that such regulation was a final rule without invitation for comment because the

rule conferred “benefits on persons affected thereby.” 31 Fed. Reg. at 13,387. On such basis

the carrier maintains that it is a beneficiary of the rule and any interpretation should not be

unfavorable to it. We find that the primary beneficiary of the regulation is the alien. In any

event, it is the language of the regulation which controls our adjudication of the case.

688