F-0606-1267
Decided by the District Director May 13, 1953 Approved by the Board September 23, 1953
Fine — Section 273 of the Immigration and Nationality Act — Mitigation.
Section 273 of the Immigration and Nationality Act makes no provision for the mitigation of fines arising under that section for bringing to the United States from a place outside thereof an alien who is not in possession of an unexpired visa, and the provisions of section 239 of the same act do not apply to fines arising under said section 273.
BEFORE THE DISTRICT DIRECTOR
(May 13, 1953)
Discussion: This is a fine proceeding instituted against Pan American World Airways, Inc., hereinafter referred to as the "Carrier," under section 273 of the Immigration and Nationality Act, for bringing to the United States from a place outside thereof the alien L---- M---- G---- P----, who was not in possession of an unexpired visa, as required by section 212 of said act. Pan American World Airways, Inc., is the Agent for Compania Cobana de Aviacion, the owner of the aircraft in question.
Upon the arrival of this aircraft at the port of Miami, Fla., from Habana, Cuba, on January 5, 1953, there was on board the alien passenger, L---- M---- G---- P----, who was applying for admission to the United States for the purpose of attending school at the Western Carolina Teachers' College in C. alloway, N.C. He presented a valid Cuban passport in which was a stamp showing issuance of a visa under section 4 (e) of the Immigration Act of 1924. It appears from the record of this case that the alien was originally admitted to the United States as a student under section 4 (e) on January 1, 1951, for a period to expire January 8, 1952. It further appears that on December 14, 1951, he applied for an extension of stay, but since he was not at that time attending an approved school, decision was held in abeyance on his application until such time as the alien was again in attendance in an approved school. On October 7, 1952, the dean of the Western Carolina Teachers' College, one approved for immigrant students, furnished the Buffalo, N.Y., office of this Service with a certification as to his enrollment there. The alien departed from the United States on December 14, 1952, without having received any notification from the Immigration Service as to any action taken on his application for extension of stay. Therefore, upon his arrival on January 5, 1953, it appeared to the examining immigration officer that at the time of his departure the alien was not in legal status, as a student, and, therefore, not entitled to reenter the United States without being in possession of a new student visa. The alien had not secured a new visa between the date of his departure and the date of this arrival. He was referred to a special inquiry officer for a hearing, and at the hearing it was determined that the alien had, while he was in the United States previously, transferred from an approved school to a nonapproved school, and thereby lost his status as a student without any permission or authority from the Immigration Service. A report from the office of this Service in Baltimore, Md., reflects that the application for extension of stay was never acted upon by that office, and he was not granted an extension of stay.
Before the hearing by the special inquiry officer was concluded the State Department granted a waiver of nonimmigrant visa required on behalf of subject alien, and he was admitted to the United States as a student under section 101 (a) (15) (F) of the Immigration and Nationality Act.
On March 4, 1953, Form I-79, Notice of Intention to Fine Under Immigration and Nationality Act, was served on a representative of the carrier at Miami, Fla., for the violation complained of. The carrier, under date of April 21, 1953, filed a protest to the imposition of this fine. The carrier in its protest contends that, according to the records of this Service, that is the record of the special inquiry hearing, that it exercised due and reasonable diligence in the instant case, further contending that the alien possessed apparently valid documentation as a student, including a letter from his school certifying that his enrollment was so, and the school was, and had been, duly approved by the Attorney General. The carrier stated that prior to his embarkation from Habana the alien was closely questioned by representatives of the carrier, and that the alien being in possession of the aforesaid documents, and, in fact, returning to an accredited school, was issued transportation to the United States. The carrier further requested that the fine be mitigated to a nominal sum, in the event a fine is imposed, and contends that by virtue of section 239 (3) of the Immigration and Nationality Act any violation of a regulation of the Attorney General in respect to civil air navigation should be subject to a civil penalty in the maximum amount of $500, and that this section furnishes ample authority for mitigation to a nominal sum. Section 273 of the Immigration and Nationality Act makes no provision for the mitigation of fines arising under that section, nor do the provisions of section 239 or regulations made thereunder apply to fines arising under section 273 of said act.
After due consideration of all the facts and circumstances in this case as set forth above, it appears that the carrier could have, by the exercise of reasonable diligence, ascertained that the alien would have been required to secure a new visa in order to be eligible to again apply for admission to the United States prior to his embarkation for the United States.
Recommendation: It is recommended that the fine be imposed. The amount is $1,000.
The recommendation of the immigration officer is approved.
Order: It is ordered that the fine be imposed. The amount is $1,000.
(September 23, 1953)
Discussion: Upon careful consideration of all of the evidence of record, as well as the representations of counsel, it is the conclusion of this Board that a violation of section 273 of the Immigration and Nationality Act ( 8 U.S.C., sec. 1323) has been established and that the appeal from the decision of the acting district director of immigration and naturalization, Miami, Fla., bearing date of May 12, 1953, must necessarily be dismissed.
Order: It is ordered that the appeal from the decision of the acting district director of immigration and naturalization, Miami, Fla., bearing date May 13, 1953, be and the same is hereby dismissed.