F-0300-7271.
Decided by Board December 20, 1955.
Fine — Section 273 (a), Immigration and Nationality Act — Applicable to carrier engaged in private commercial enterprise and violation occurs while under contract to United States Government.
(1) Penalty under section 273 (a) of the Immigration and Nationality Act is incurred by a transportation company which brings a returning legally resident alien to the United States with an expired reentry permit.
(2) The fact that this was a United States Army chartered flight, that the passenger traveled as a dependent of a member of the United States Armed Forces, and that another branch of the Government, the United States Army, is under contractual obligation to reimburse the carrier for payment of any penalty imposed is not a defense to liability.
IN RE: Plane "N-6104-C" (Charter Flight No. 5-W), which arrived at the port of New York from foreign on June 16, 1955. Alien passenger involved: M---- M---- G----.
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of the District Director at New York dated August 15, 1955, directing that fine in the amount of $1,000 be imposed on Pan American World Airways, Inc., owners and/or agents of Plane "N-6104-C," for bringing to the United States the above-named alien passenger who was not in possession of an unexpired visa.
The facts of this case are not in dispute. Apparently this passenger traveled as a dependent of a member of the armed forces of the United States. She was a passenger aboard a United States Army charter flight. She was processed and cleared by the United States Army for travel to the United States. Upon arrival at New York, she presented a reentry permit (Form I-132) which had expired on June 8, 1955, approximately one week prior to the date of her foreign embarkation. She was admitted under a documentary waiver pursuant to 8 C.F.R. 211.3 and section 211 (b) of the Immigration and Nationality Act.
Counsel's first contention is that no fine lies under section 273 of the Immigration and Nationality Act where an otherwise admissible resident alien returns from a temporary visit abroad and is admitted without actually being required to obtain a visa. In support of this contention, counsel has incorporated herein by reference the arguments which he advanced on the same point in a case previously considered by this Board ( Matter of PAA Plane Flight 204, F-0300-7263, Int. Dec. No. 742, B.I.A., December 19, 1955). Basically, those arguments are that section 211 (b) of the act creates a statutory waiver of the documents; that 8 C.F.R. 211.3 is merely descriptive of the statutory waiver thus created; that to hold to the contrary would be to bring the regulation into conflict with the statute; and that decisions of this Board under the regulation prior to its amendment on December 24, 1954, are controlling here.
We carefully considered the arguments advanced by this counsel in the case to which he refers and found that the arguments were not well taken. For the reasons set forth in our opinion in that case, we reject the argument here. Briefly, the answer to this argument is that under the current regulations a visa is required in the case of this alien passenger and the carrier is subject to a fine under section 273 of the Immigration and Nationality Act for bringing her to the United States without one.
Counsel's second contention is that under the terms of the contract with the United States Army, made pursuant to the provisions of the Civil Aeronautics Act, and under the terms of which contract this charter flight was made, the United States Army has assumed responsibility for the matter here involved. In support of this contention, counsel has furnished a copy of the contract and the pertinent rules and regulations promulgated under the Civil Aeronautics Act. The argument is that one branch of the Government cannot impose a penalty on another. The theory behind this argument is that the United States Government itself is not amenable to administrative penalties. We also reject this argument.
The immunity relied upon by counsel does not affect the personal liability of any of the parties named in the statute as responsible for the payment of the fines and penalties set forth therein. This is so although the violation occurred when the operation of the vessel was for the account of the Government and though the Government is under contractual obligation to reimburse such person or party for payment of the penalty imposed. (Cf. Matter of SS. "Atlantida," 56118/487, 2 IN Dec. 571.) The test in these cases is whether the vessel or aircraft involved is engaged in private commercial enterprise in competition with vessels or aircraft or other carriers similarly engaged, or whether it is a Government-owned vessel or aircraft operated as a public vessel. (Cf. Matter of U.S. Naval Ship "General Mason M. Patrick," 500/1480, 5 IN Dec. 572, and cases cited therein.) Obviously, the carrier here is engaged in private commercial enterprise in competition with other carriers similarly engaged. The terms of the contract do not alter this situation.
The extent to which fine proceedings shall be prosecuted and the practical question whether the amount of the fine or penalty actually shall be collected in a case in which the Government is so obligated are matters of administrative detail and not for the consideration of this Board.
The final question for consideration here is whether or not the carrier exercised due diligence in this matter. Under the statute, the carrier has the burden of determining the passenger's admissibility prior to the foreign embarkation. This duty it did not meet in these premises. No showing has been made that the passenger's documents were examined prior to her foreign embarkation, and it is obvious from the record that the exercise of due diligence on the part of the carrier would have revealed that the document presented by the passenger for travel to the United States was not valid.
On the question of due diligence, counsel has referred us to a decision entered by the District Director at New York on November 28, 1955 ( Matter of Plane "N-6552-C," F-0300/7299). The pertinent portion of that decision reads as follows:
The evidence of record indicates that a violation has occurred in the instant case. However, inasmuch as the Line has exercised reasonable diligence, the amount of the fine will be remitted in its entirety. The evidence of record also indicates that the Line was under contract with the United States Army. The Army would, therefore, be liable for violation. However, it would not be practicable to institute proceedings against the United States Army.
Obviously, in view of the foregoing, the district director's decision not to impose the fine in that case was based on the fact that the carrier exercised reasonable diligence. There, the two alien passengers involved were minor children travelling with their alien mother. She was in possession of a valid passport and a valid reentry permit, and both children were included in their mother's passport, but did not benefit from her immigration documents. On the facts, the cases are clearly distinguishable. Here, no showing has been made that the passenger's documents were examined by the carrier and the circumstances are entirely different. In view of these factors, the remaining portion of the district director's opinion dealing with the contract and the feasibility of imposing a fine on the United States Army is surplusage. Moreover, and as previously hereinbefore pointed out, the existence of the contract is not an alibi for the carrier; the opinion of the district director is not binding on this Board; and the matter of collection of the penalty is properly an administrative function and not for the consideration of this Board.
On the basis of the foregoing, we find that this appeal must be dismissed and we will now so order.
Order: It is ordered that the appeal be and the same is hereby dismissed.