F-1326-143
Decided by Board May 14, 1956
Fine — Section 272 (a), Immigration and Nationality Act — Due diligence — Afflicted alien — In-transit agreement or documentary waiver does not affect liability.
(1) The carrier does not meet the burden of establishing that the existence of disease or disability in a passenger could not have been detected by the exercise of due diligence prior to the passenger's foreign embarkation when the carrier relies merely on the observations of its ticket agents, traffic representatives and crewmembers.
(2) A carrier bringing an alien to the United States under an in-transit agreement pursuant to section 238 (a) of the 1952 act or an alien for whom documentary requirements have been waived is not exempt from liability for fine under section 272 (a) of the act if the alien is found to be inadmissible on any of the grounds specified therein.
(3) Failure by the Attorney General to invoke his discretionary authority under section 212 (d) (3) of the act to admit an afflicted alien is no defense to imposition of penalty under section 272 (a). Even if section 212 (d) (3) is exercised in such a case, fine would still lie, since the carrier may claim the benefit of section 272 (d) only when the alien is entitled by law (and not as a discretionary matter) to an exemption from the excluding provisions of section 212 (a).
BASIS FOR FINE:
Act of 1952 — Section 272 (a).
BEFORE THE BOARD
Discussion: This matter is before us on a motion for reconsideration of our decision of December 9, 1955, dismissing the appeal from an order entered by the District Director at San Francisco, California, imposing a fine of $1,000 on Canadian Pacific Air Lines, Ltd., owners and/or agents of Plane CF-CUR (Flight 303/19), which arrived at the port of Honolulu, T.H., from foreign on March 19, 1955. The specific violation charged was bringing to the United States from Canada the alien passenger, T---- U----, who was afflicted with insanity (schizophrenic reaction, paranoid type, Class "A"). The basic facts of the case are not in dispute.
The passenger is an alien, a native and citizen of Canada of Japanese ancestry who is domiciled in Canada. He was traveling from Canada to Japan in transit through Honolulu, T.H. At the time he left Canada, he was scheduled to depart from Honolulu for Japan on the first through flight of Japan Airlines out of Honolulu after his arrival. He was to be in Honolulu for approximately 2 days, arriving on Saturday and leaving on Monday. Apparently the carrier has worked out a procedure with the Service whereby such passengers are in the carrier's custody during stopovers.
Upon arrival, the passenger was examined by a Service officer who noticed peculiarities in his conduct. Therefore, he was examined by officers of the United States Public Health Service who, on March 21, 1955, certified him as having the above-described affliction. He was excluded from admission on the basis of that certification and his deportation, as well as that of his accompanying mother, was effected by the carrier.
The first contention is that the penalty should not be imposed because the carrier exercised the degree of diligence required by the statute and could not detect the passenger's disease or disability. The point is that the carrier can avoid liability to fine under the statute if it establishes to the satisfaction of the Attorney General that such is the case. We, however, find that the contention is not supported by the record.
The basic argument in this connection is that the limited observation of the passenger available to the carrier failed to reveal anything unusual or abnormal in his speech, manner, behavior, conduct, etc. The ticket agent observed him when he purchased his ticket and, as tour conductor of the group of which the passenger was a member, on the trip to Honolulu. The carrier's traffic representatives checked him boarding the plane and the crewmembers observed him en route to Honolulu. The claim is that the observation thus obtained is all that is required of the carrier under the statute and that it did not reveal the passenger's disability.
We considered the same argument when the case was previously before us and we then rejected it. We still hold that if the carrier sees fit to accept passengers on the basis of such a cursory examination, it does so at the risk of incurring liability to fine for bringing an afflicted alien to the United States. The statute places on the carrier the burden of establishing that the existence of the disease or disability could not have been detected by the exercise of due diligence prior to the passenger's foreign embarkation. We feel that the extent of the examination accorded this alien passenger does not meet that statutory test. We are aware of the problems confronting carriers, but our primary concern is with the effect of the carrier's action under the immigration laws and not with the problems of a purely personal nature which the provisions of those laws may present to carriers accepting passengers for transportation to the United States.
Counsel urges that our decision in Matter of SS. United States, F-0300-5994 and A-7276111, 6 IN Dec. 467, December 21, 1954, calls for a contrary conclusion, but we disagree. We did hold in that case that the term "due diligence" as used in the statute does not contemplate that the carrier shall require every potential passenger to undergo a psychiatric examination. However, in that case the alien was given a physical examination by the carrier's doctor prior to her foreign embarkation which failed to reveal her disease or disability. This passenger, on the other hand, was accorded no physical examination by a doctor. We feel that the evidence of this record establishes that symptoms of the passenger's mental disability would have been readily apparent had he been accorded such an examination, or some other reasonable examination, prior to his embarkation.
Another argument on this point is that carriers bringing aliens to the United States from Canada should not be held to the same degree of diligence required of carriers bringing aliens here from Europe, at least insofar as medical examinations are concerned. The claim is that Congress intended a more liberal and practical application of this section (272) to carriers operating between Canada and the United States than in the case of carriers operating here from overseas. Support for this position is sought in the broad waiver of documentary requirements for Canadians coming to the United States. The further claim is that a literal application of our prior decision would virtually halt trans-border crossings between the United States and Canada. The assertion is that the mass travel between the United States and Canada precludes the possibility of carriers according medical examinations. We, however, find no support in law or in fact for this position.
In the first place, Congress obviously intended to exempt from liability to fine carriers bringing aliens to the United States from Canada without visas, as evidenced by the following language of section 273 (a) of the Immigration and Nationality Act:
It shall be unlawful for any person, including any transportation company, or the owner, master, commanding officer, agent, charterer, or consignee of any vessel or aircraft, to bring to the United States from any place outside thereof ( other than from foreign contiguous territory) any alien who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder. (Emphasis supplied.)
But Congress, when it enacted section 272 of the same act, made no corresponding exemption in favor of carriers bringing to the United States from Canada aliens afflicted with a mental disease or disability. Hence, it is logical to conclude that Congress intended such carriers to be liable to fine as would any others. If it had intended otherwise, it would have been a simple matter to have created the exception as was done in section 273 (a) but since Congress did not do so, we find no basis for the carrier's claim that one exists, as a matter of law.
Secondly, we do not doubt that the mass travel between Canada and the United States presents serious problems to carriers bringing aliens here from Canada, at least insofar as the immigration laws are concerned. However, these are hazards of the business which the carriers themselves must overcome, absent congressional expression to the contrary. In addition, the facts do not substantiate the fears expressed here, since the assertion has been made that this is the first case within the carrier's knowledge wherein an air carrier has been subjected to a fine for bringing an afflicted alien to the United States from Canada. The logical conclusion arising from this assertion would seem to be that the problem is not serious, otherwise there would have been more fine proceedings. Moreover, the administrative procedure adopted for handling these fine matters contemplates that the district director determines whether or not the proceedings shall be instituted, and it is merely the function of this Board to determine whether or not the action therein has a legal and factual basis.
Thirdly, our prior decision does not, as urged by the carrier, have the practical effect of requiring a transportation company to ask questions of prospective passengers beyond the scope of those asked by United States consular officers of alien applicants for visas; nor does it require a practice of questioning not considered necessary by United States Public Health Service officials. We may have hinted that it might be proper to ask a prospective passenger if he had a past history of mental disease or disability, in view of the fact that such a question is contained in visa application forms, but we did not hold that it was necessary to ask such a question to meet the "due diligence" requirement of the statute. All we have held here is that the cursory examination which the carrier accorded the passenger involved did not meet the statutory test; that if the carrier sees fit to depend on such an examination, it runs the risk of incurring liability for bringing an afflicted alien to the United States; and that the evidence of record establishes that if the carrier had given this passenger a reasonable examination, his disability would have been readily apparent.
The second contention is that the carrier is not subject to fine because the alien was an in-transit passenger who could be brought to the United States without a visa pursuant to the agreement entered into between the Government and the carrier under the provisions of section 238 of the Immigration and Nationality Act. The argument is that the company was not obligated by this agreement to see to it that the passenger was admissible to the United States. Then, the claim is that the decision in the case of Dollar SS. Line v. Elting, 51 F. (2d) 1035 (C.C.A. 2, 1931), is controlling, and that Matter of M/S Amagisan Maru, F-500/1526, 6 IN Dec. 362, November 16, 1954, cited in our prior opinion, is inapplicable here. But, again, we find the contention unavailing.
In the first place, the decision in the Dollar SS. Line case ( supra) was overruled by the very court which rendered it. Cf. Navigazione Generale Italiana v. Elting, 88 F. (2d) 607 (C.C.A. 2, 1937.) Secondly, Matter of M/S Amagisan Maru, supra, was merely cited as authority for the fact that section 235 (a) of the Immigration and Nationality Act requires the inspection and examination of all aliens to determine whether or not such aliens are excludable as being afflicted with a disease or disability, and that the statute makes no exception with respect to such aliens being brought to the United States pursuant to an in-transit agreement. Thirdly, by the very terms of the contract entered into between the carrier and the Government pursuant to section 238 (a) of the act, the carrier has agreed that it "shall not accept for passage through the United States any alien unless such alien is admissible to the United States under the immigration laws"; but the fact remains that this alien passenger was inadmissible under the provisions of section 212 (a) (2) of the Immigration and Nationality Act.
Another contention advanced is that, since the statute exempts from liability to fine carriers which bring to the United States afflicted aliens who have visas, no fine should lie for bringing an afflicted alien who is exempt from the visa requirements. The theory is that the alien who does not need a visa, and the carrier which brings him, stands in exactly the same position as the alien who actually has a visa. There are, however, very cogent reasons why this position is not well taken.
The first is that when Congress enacted section 272 (a) of the Immigration and Nationality Act, it set forth in unequivocal language the specific conditions which would exempt carriers from liability to fine for bringing inadmissible aliens to the United States. However, Congress did not spell out an exemption in favor of carriers bringing to the United States inadmissible aliens for whom the documentary requirements had been waived. Because of the unequivocal language of the section and the particularity with which the Congress enumerated exceptions thereto, we will not add an additional exception by inference as to legislative intent, under the guise of construction. The reason is that the language of the section is plain and, therefore, there is no room for construction. That is, we find the language of the section to be clear and conclusive and contrary to the position taken by counsel.
The second is that the reason no fine lies where the alien had documents is obvious. In such cases, he would have been accorded an examination by Government authorities and it would be requiring more of the carrier than was demanded of the Government if the carrier were held liable. This argument would not hold true, however, where the alien had no documents because of a waiver. Under such circumstances, he would not have been given an examination. Furthermore, on this point, the alien here was not allowed to land within the meaning of the statute.
The final contention here is that no fine lies because the alien passenger was not afforded an opportunity to apply for a waiver of the grounds of his inadmissibility. The basis for this contention is the provision of section 272 (d) of the Immigration and Nationality Act that carriers are not liable to fines for bringing to United States ports of entry aliens who are entitled by law to exemption from the excluding provisions of section 212 (a) of the act, and the stipulation in section 212 (d) (3) (B) thereof that the Attorney General has discretion to admit into the United States temporarily as a nonimmigrant an alien seeking admission who was granted a documentary waiver. The argument is that since this alien passenger was the beneficiary of a published documentary waiver, he was deprived of a right given him under the Immigration and Nationality Act when he was not given an opportunity to apply for a waiver under section 212 (d) (3) (B) thereof. The claim is that if he had been permitted to do so he might have been admitted and if he had, no fine would lie. The further claim is that it is improper to assess a fine until this possibility is exhausted. We, however, disagree.
We hold that it is not a defense for the carrier that the Attorney General has discretionary power to admit the alien notwithstanding his membership in an excluded class. We hold that a carrier which transports an excludable alien to this country in the hope or belief that he will be admitted through administrative discretion, does so at its peril. We believe that failure to give the transported alien the benefit of consideration under the discretionary power of admission will not excuse a carrier from liability to fine, particularly where, as here, the alien has failed to observe or comply with the requirements of the authorized rules governing applicability and exercise of such discretion. We are convinced that the law of the regulations supports this view.
Section 272 (d) relieves carriers from liability to fine for bringing afflicted aliens to the United States only where the alien is exempted from the excluding provisions of section 212 (a) as a matter of law. But section 212 (d) (3) (B) clearly states that the admission of this alien, who is inadmissible under section 212 (a) (2), is a discretionary matter with the Attorney General. It does not make him admissible as a matter of law. Hence, even if he had been granted a waiver the carrier would still have been liable.
On the basis of the foregoing, we find that this motion must be denied and we will now so order.
Order: It is ordered that the motion be and the same is hereby denied.