A-8945406.
Decided by Board September 26, 1955.
Excludability — Section 212 (a) (24) of Immigration and Nationality Act — Not applicable where alien admitted to United States as nonimmigrant prior to being taken to foreign contiguous territory or adjacent islands by nonsignatory line.
(1) An alien who is admitted to the United States in transit to contiguous territory and who applies within two years thereafter for admission to the United States is not excludable under section 212 (a) (24) of the act, notwithstanding that she was brought to the contiguous territory by a nonsignatory line.
(2) The provisions of section 212 (a) (24) of the act do not apply where an alien has been brought directly to a port in the United States first, since the line has to comply with all the immigration laws respecting arrival of aliens so that the interests of the Government are protected. The statute is aimed primarily at transportation companies bringing aliens to the described areas from foreign and not from the United States.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (24) — Seeks admission from foreign contiguous territory having arrived on a noncomplying signatory line under section 238 (a) within two years.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer excluding appellant on the ground stated above. She has been paroled into the United States.
On December 2, 1954, the appellant, a 21-year-old female, a native and citizen of Italy, married a citizen of the United States who was visiting Italy. She desired to come to the United States for permanent residence to make her home with her husband who apparently desired to return to the United States immediately after the marriage. The issuance of an immigrant visa was a matter which could not be accomplished by the time her husband had to return.
Her husband was a resident of San Diego, California. To be as close to him as possible while awaiting the issuance of an immigrant visa, the appellant secured a Mexican tourist visa on the same day she was married and shortly thereafter, apparently in the company of her husband, left Europe by Air France, a bonded air line under section 238 (d) of the act, and on December 19, 1954, was admitted to the United States at New York, New York, in transit to Mexico. She proceeded in immediate transit to Mexico by Air France. Shortly after her admission to Mexico, she applied for and received a nonimmigrant visa as a vistor for pleasure from the United States Consul at Tijuana, B.C., Mexico, and on December 23, 1954, was readmitted to the United States as a visitor. The length of her stay we do not know. However, on January 5, 1955, she secured another nonimmigrant visa from the United States consul at Tijuana, B.C., Mexico. This visa was valid through January 4, 1957, for unlimited applications. She made a number of entries on the basis of this visa. The times and places are not shown other than that she was admitted for a temporary visit on January 21, 1955. On June 6, 1955, after the approval of a visa petition by her husband, she was issued a nonquota immigrant visa and on July 13, 1955, made this application for admission.
As pertinent to this case, section 212 (a) (24) of the Immigration and Nationality Act provides for the exclusion of an alien who has lived less than two years in foreign contiguous territory having been brought there by a transporation line which had not signed an agreement with the Attorney General agreeing to comply with certain conditions concerning the entry and inspection of aliens.
There is no showing by the applicant for admission that Air France has signed a contract with the Attorney General concerning the entry and inspection of aliens coming to the United States through Mexico in accordance with section 238 (a) of the act, and we take administrative notice that Air France is a nonsignatory line as far as the transportation of aliens to Mexico is concerned.
We have referred to Air France as a "bonded air line." This refers to the fact that Air France has signed an agreement with the Attorney General under section 238 (d) of the act guaranteeing among other matters that an alien if admitted in transit will depart as authorized by law. This arrangement, now expressly authorized by law, is legislative recognition of an administrative practice which existed prior to the act (Report No. 1515, 81st Cong., 2d sess., pp. 544-545). The existence of such an agreement coupled with the power of the Attorney General to waive documentary requirements permits a transient to enter the United States without the necessity of presenting a transit visa (see 8 U.S.C.A., Commentary, pp. 37-38); but does not otherwise excuse noncompliance with all the requirements of the act relating to the admission of nonimmigrants (section 235 (a) of the act; 8 C.F.R. 235.1; 8 C.F.R. 221.4).
Prior to the act, aliens were excludable on the ground now set forth in section 212 (a) (24) (section 23, 1917 act; section 17, 1924 act). It was then the settled administrative view that when an alien came to the United States from other than the described areas, and was admitted for temporary purposes, and thereafter went to the described areas from which she attempted within two years to return to the United States, she was not excludable as one who had been brought to contiguous territory by a nonsignatory line and had not lived there for two years prior to reapplying for admission to the United States.
The administrative position was based on the facts, that the law was aimed primarily at transportation lines bringing aliens to the described areas from foreign, and not from the United States; that since the alien had been brought directly to a port of the United States first, the line had to comply with all immigration laws respecting the arrival of the alien and thus there could not be said to be any discrimination in favor of lines bringing aliens to the described areas; and that the alien who had been admitted to the United States before she left for the described areas, had undergone inspection at ports of the United States, so that the interests of the Government had been protected in the event the alien had for some reason been subject to exclusion.
There is no express provision of law which would prevent us from following the administrative interpretation which existed prior to the act. In view of the similarity of the present law with the laws preceding it and the existence of the well-established interpretation of the old law, we will continue to follow the rule as it previously existed.
We note that the rule that the exclusionary provisions of section 212 (a) (24) of the act should not apply to aliens who have first been admitted to the United States before applying to enter from contiguous territory, is recognized by the Department of State ( 22 C.F.R. 42.42 (a) (24) (vi)). It is upon the existence of this regulation that counsel rests his case.
Order: It is ordered that the appeal be and the same is hereby sustained.