111Ai-rf.0 or PI.:9 NE "F-131-1SQ"

111Ai-rf.0 or PI.:9 NE "F-131-1SQ"

In FINE Proceedings

NYC-10/52.232

Decided by Board M arch, 1,1962

Fine--Section 273(a)—Waiver of documents or parole not a defense to liability.

The grant of a waiver of documents or parole to an applicant for temporary

admission subsequent to arrival is no defense to liability of the carrier under section 273(a) for bringing to the United States an alien who lacks a

visa, if a visa Is required by law or regulation.

Basis FOE FINE: Act of 1952—Section 273(a) [8 U.S.C. 1323].

BEFORE THE BOARD

DISCUSSION: This appeal is directed to an administrative penalty of $1,000 which the District Director at New York has ordered

imposed on Compagnie Nationale Air France, as owners, agents,

charterers or consignees of Aircraft F-BHSQ, Flight 011, which

arrived at the port of New York from Paris, France, on July 3,

1961. The specific violation charged is that said carrier brought to

the United States from a place outside thereof alien passenger

H—B— who- required but lacked an unexpired visa or other document in lieu thereof valid for admission into the United States.

The request for remission of the fine will be denied and the appeal

dismissed.

it appears from the record before us that the following material

facts exist without substantial controversy. The person here involved is a male alien, a native and national of Germany, whom the

carrier embarked at Paris, France, as a passenger for the trip to the

United States. Upon arrival in this country, 8upra, he was presented to the examining immigration officer as an alien coming to

the United States for a temporary visit. He had a valid German

passport but did not have an unexpired visa or other document in

lieu :,hereof valid for his admission into the United States. The

examining immigration officer determined that he could not be admitted to the United States because he did not have an unexpired

visa, such visa being required under the provisions of the immigration laws and the regulations promulgated pursuant thereto. How595

ever, the alien passenger was paroled for a period until July 25,

1961, and apparently departed from the United States in accordance with the terms thereof.

This statute calls for the imposition of a penalty of 81000 as to

each alien passenger which a carrier brings to the United States

from a place outside thereof who requires but lacks an unexpired

visa or valid lieu document. The foregoing facts of record establish

that we are here confronted with precisely such a situation. Therefore, liability to fine has been incurred.

It is no defense to imposition of the penalty that the passenger

was, by virtue of his parole, permitted to accomplish the purpose

of his coming to the United States. The reason is that his parole

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 still seeking admission (Leng May Ma v. Barber, 357 U.S.

185). Thus, the action of the Service in paroling the alien passenger into the United States had no bearing whatsoever upon the

question of the carrier's liability to fine for bringing him to the

United States from foreign without proper documents.

We reject the carrier's claim that it is entitled to remission of

this penalty on the ground that it exercised due diligence in accepting this passenger for transportation in the belief that he would be

the beneficiary of a visa waiver under 8 CFR 212.1(f) because his

case involved an unforeseen emergency. In this connection, the

carrier asserts that the alien passenger had been designated to come

to the United States at the last minute as a substitute for an engineer of his company scheduled to come to New York on urgent

business. It claims that its representative abroad who embarked

the passenger ascertained these facts prior to permitting the passenger to board the aircraft for' the trip to the United States.'

Under this statute, the carrier had the duty of ascertaining, prior

to his embarkation, that the alien passenger was in possession of

documents valid for admission into the United States. It does not

contemplate that this or any other carrier will embark aliens for

the United States when they lack visas, with the hope that liability

can be avoided by the granting of a waiver or parole to the individual alien subsequent to his arrival in this country. This section

of the law was clearly enacted to prevent speculation such as this

on the part of the carrier's bringing aliens to the United States.

ORDER: It is ordered that the request for remission of the fine

be denied and that the appeal be and the same is hereby dismissed.

The Service report on this aspect of the case, dated July 11, 1961, reflects

that the pasienger advised the examining immigration officer that he was

never examined by any Air France personnel at any time and that he was

allowed to board the above-mentioned flight without any difficulty.

596