MATTER OF CANADIAN PACIFIC AIRLINE

MATTER OF CANADIAN PACIFIC AIRLINE

In FINE Proceedings

500-2093-4

Decided by Board Docontbor 17, 1957

Fines—Section 273 of 1952 act—Signatory carrier (sec. 238 of 1952 act) exempt

from fine liability for transporting natives of contiguous territory or returning residents inadmissible on documentary grounds.

No fine lies under section 273 of the 1952 act against a carrier signatory to an

Overseas Agreement pursuant to section 238 of the act for transporting to

Canada, destined to the United States, alien passengers who are returning

residents or natives of contiguous territory inadmissible solely on documentary grounds. tut. 4 I. & D. Dec. ∎FiD; 1. & N. Dec. 3 2D.)

13Asts FOR FINES: A ct of 1952—Section 273 (8 U.S.C. 1323) .

DEFORE TIID BOARD

Discussion : These appeals in administrative fine proceedings are

directed to penalties of $1,000 each ordered imposed on this Canadian common carrier for bringing to Canada on July 27, and

August 6, 1956, respectively, from Europe, alien passengers G

P—C--- and A

who were ultimately destined to,

J

W

but limited asaunents valid fur admission into, the United Staten.

Both alien passengers were Canadian nationals (one native-born)

who had previously been lawfully admitted to the United States

for permanent residence. They were returning via Canada, after

visiting in Europe. Both lacked documents valid for admission to

this country (former 8 CFR 211.2). Both had Alien Registration

Receipt Cards, Form I-151, which at the date of applications for

admission were not valid reentry documents after a European trip.

The facts in relation to the fine for transporting A I W---are as follows: The passenger is a native of England, who was admitted to the United states for permanent residence on August 6,

1950. She purchased a round-trip air ticket in Santa. Barbara, California, for travel to Amsterdam, Holland, and return to California.

She was routed via United Air Lines from Los Angeles, California,

to Vancouver, B.C., and thence to Amsterdam, Holland, via Canadian

Pacific Air Lines. Return passage was a reverse of this. This

passenger was manifested for the United States by Canadian Pacific

Air Lines both on the United States manifest and on the general

manifest covering all passengers on the flight. In this case, the

record shows the passenger used Canada solely and exclusively as

a means fn travel flunk Holland to California.

The record reveals the following situation concerning the transportation of G P—C--- via Canadian Pacific Air Lines.

This passenger, a native of Canada, was permanently admitted to

the United States on March 12,1956. Transportation was purchased

in White Rock, B.C., for a trip from Vancouver to Norway and

Holland returning to Vancouver. The passenger's family lives in

White Rock, B.C. Upon return to Vancouver after the European

trip, it was her intention to visit in Canada for a few days before

returning to the United States. The passenger was on a Canadian

Pacific Air Lines manifest for United States passengers.

The issue is whether the Overseas Agreement, to which Canadian

Pacific Air Lines subscribes, requires the imposition of a penalty in

these cases. Stated broadly, the agreement imposes on transportation agencies bringing aliens destined to the United States via

Canada, the same responsibility as if the agency brought the passenger directly to a 'United Stuteq port.

Because Canadian transportation agencies by Canadian law are

required to transport to Canada any Canadian citizen requesting

such transportation, it has been held that where such transportation takes place even if the passenger is ultimately destined to the

United States, a penalty for violation of our immigration laws will

not be incurred (Matter of Tel Plane CF TFF 206, F-0109-19,

4 I. & N. Dec. 689). However, if Canada is used solely and exclusively as a means for reaching the United States, this exception

has no application for the reason that Canadian law is interested in

the transportation of Canadian eitizonn to Canada and Imo no interest in the transportation of Canadian citizens to the United States

(Matter of CPA Plane Flight 301, 500-2026, 7 I. & N. Dec. 329).

On these holdings, there would be a fine for the transportation of

A J—W , but no this in the case of G P C - Miss

C was clearly destined to Canada to visit relatives. Miss

W—'s interest in Canada was solely as a means of reaching the

United States.

The initial provision of law which was the basis for the first

Canadian Overseas Agreement was found in section 23 of the Immi102, 1940 ed.), and is as follows:

gration act of 1911' (6

Provided further, That in prescribing rules and making contracts for

the entry and inspection of aliens applying for admission from or through foreign contiguous territory, due care shall be exercised to avoid any discriminatory action in favor of foreign transportation companies transpbrting to such

territory aliens destined to the United States, and all such transportation

563713-61-

companies shall be required, as a condition precedent to the inspection or examination under such rules and contracts at the ports of such contiguous territory of aliens brought thereto by them, to submit to and comply with all the

reauirements of this Act which would study won, they bringing mrh nliano

directly to seaports of the United States, and, from and after the taking effect

of this Act, no alien applying for admission from foreign contiguous territory

shall be permitted to enter the United States unless upon proving that he was

brought to such territory by a transportation company which had submitted to

and complied with all the requirements of this Act or that he entered, or has

resided in, such territory more than two years prior to the date of his application for admission to the United States.

The Immigration Act of 1924 contained a provision in section

17 (8 U.S.C. 217, 1940 ed.) almost the same as the one in the 1917

act. In the 1924 act an exception to the two-year bar to readmission was made in favor of aliens lawfully admitted to the United

States returning from a temporary visit from contiguous territory.

The reasons for these provisions of law were to put transportation lines going into contiguous territory on a parity with those

coming directly to United States ports in regard to the transportation

of aliens destined to the United States, and to help prevent contiguous territory from being used as A. means of gaining entry into ,

the United States by aliens desiring to come to this country but

who could not obtain passage directly to a United States port because

not qualified for admission.

In current law, the provisions which are the basis of the existing

Overseas Agreement and which are substantially the same as in the

earlier laws are contained in section 238 (a), (b), and (c) of the

Immigration and Nationality Act (8 U.S.C. 1228, 1952 ed.). The

provision in the new law for the exclusion of aliens brought to contiguous territory by transportation agencies who have not entered

into a contract as provided in section 255 is found in section 012

(i) (24) of the Immigration and Nationality Act (8 U.S.C. 1182

(a) (24), 1952 ed.). This subsection carries forward the two-year

bar on the admission of aliens not brought to contiguous territory by

complying transportation agencies, but makes an exception of importance in considering the cases now before us. The present law

exempts from the two-year bar aliens who are natives of Western

Hemisphere countries (with a minor exception not material to the

consideration of these cases) and returning residents.

Although section 238 of the Immigration and Nationality Act is

broad enough to cover natives of Western Hemisphere countries and

returning residents, it is argued that as Congress has seen fit to

exempt these two classes from the two-year exclusion bar, Congress

was not concerned with their transportation to contiguous territory

and, hence, penalty should not be imposed for transporting such

aliens from overseas to Canada.

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In the Service argument before the Board, it was stated that the

reasons which gave rise to this provision of law in 1917, today do

not exist. Because of changes in Canadian law, and other circumstances, no longer is it profitable for a European alien whose ultimate destination is the -United States to use Canada as a means of

obtaining that end. The Service specifically urged the Board to

adopt the position that under the Overseas Agreement carriers are

exempt from liability as to natives of contiguous territory and returning residents who are inadmissible solely because of documentary

requirements. In view of this background, we are asked to construe

!existing law liberally toward carriera. The change in the 1952 act

exempting from the two-year exclusion bar aliens described in section 101(a) (27) (C) (8 U.S.C. 1101, 1952 ed.), that is, aliens who

are natives of Wectern Hemisphere. countries, and aliens described

in section 101(a) (27) (B) (8 U.S.C. 1101), that is, aliens returning

to the United States after a temporary visit abroad, gives a basis for

concluding that as to them, Congress no longer felt the contractual

obligation assumed by carriers under section 238 of the Immigration

and Nationality Act should apply. No legislative comments concerned with this change in the Immigration and Nationality Act

have been found. in light of all the circumstances connected with

this problem, we feel this is a reasonable conclusion and we adopt it.

Order: It is ordered that the appeals be sustained and that the

fine he not imposed.

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