F-0300-5777.
Decided by Board July 12, 1954.
Fine — Section 273 of Immigration and Nationality Act.
An accredited diplomatic officer classifiable as a nonimmigrantunder section 101 (a) (15) (A) (i) of the Immigration and Nationality Act is required to present a valid nonimmigrant visa when he applies for admission to the United States. Therefore, a penalty under section 273 of that act is incurred for bringing to the United States such accredited diplomatic officer and members of his household not in possession of valid nonimmigrant visas, even though the requirement for such visas is waived after their arrival and exclusion, since it is the responsibility of the transportation company through its representative to ascertain the admissibility of passengers before embarkation.
BASIS FOR FINE:
Section 273 — Immigration and Nationality Act ( 8 U.S.C., section 1323).
BEFORE THE BOARD
Discussion: This matter is before us by reason of an appeal from the decision of the District Director of Immigration and Naturalization, New York, N.Y., bearing date March 18, 1954, wherein fine in the amount of $5,000, $1,000 for each alien involved, was imposed upon the French Line, agents for the aforementioned vessel which vessel arrived at New York on October 1, 1953, from Le Havre, France, for violation of section 273 of the Immigration and Nationality Act ( 8 U.S.C., sec. 1323).
The specific violation complained of is bringing to the United States the five alien passengers as aforesaid who were not in possession of unexpired visas as required by section 212 (a) (26) of the Immigration and Nationality Act ( 8 U.S.C., section 1182). That section provides:
Except as otherwise provided in this Act, the following classes of aliens * * * shall be excluded from admission to the United States:
(26) Any nonimmigrant who is not in possession of * * * at the time of application for admission a valid nonimmigrant visa * * *.
8 C.F.R., section 212.1 provides documentary requirements for nonimmigrants:
Except as otherwise provided in the Immigration and Nationality Act * * * an alien * * * who applies for admission to the United States as a nonimmigrant shall present a valid unexpired nonimmigrant visa issued to him under the nonimmigrant classification in which he seeks admission, and an unexpired passport valid for at least the period set forth in section 212 (a) (26) of the Immigration and Nationality Act * * *.
Section 101 (a) (15) of the Immigration and Nationality Act defines the term "immigrant" as "every alien except an alien who is within one of the following classes of nonimmigrant aliens —" (A) (i) an ambassador, public minister, or career diplomatic or consular officer who has been accredited by a foreign government recognized de jure by the United States and who is accepted by the President or by the Secretary of State, and the members of the alien's immediate family."
The record in this case shows that Baron L---- D---- was reported as the Colonial Attache of the Belgian Embassy and he was accompanied by his wife, A----, their daughter, E----, and their son, P----, as well as a male domestic servant, A---- M---- R----.
On the occasion of application it would appear that these persons were in possession of diplomatic passports but none had in his possession an unexpired visa and apparently no application was made for such documents because it was the understanding of the head of this family that arrangements with respect thereto had been completed by Cook's Travel Agency, almost certainly by the Department of External Affairs of his government.
Whatever may be the reason for lack of this visa for each individual member of the family and household, it is the responsibility of the transportation company through its representative to ascertain the admissibility of passengers before embarkation.
Following arrival and following exclusion visas were waived by the Department of State and these aliens were permitted to proceed to their destination.
The principal contention on the part of counsel in behalf of the appellants is that the position of the male head of this group be considered in connection with the provisions of section 101 (a) (15) (A) (i) of the Immigration and Nationality Act because he is an accredited diplomatic officer of the Sovereignty of Belgium and that he possessed and still possesses the same rights, privileges and immunities as would his government for the transaction of its diplomatic business abroad.
It is further averred that not only does the act give special attention to diplomats, but that it is common knowledge that the diplomatic representative of a foreign government is, broadly speaking, inviolable of person.
Counsel further contends that the type of visa herein referred to is not that type which Congress intended to be subject to the penalties of section 273 (a) of the Immigration and Nationality Act, ( supra).
The attorney also states that the breach, if there was a breach, of the act, was a most technical one and because thereof the carrier is exposed to a substantial penalty because the visa was in fact granted in New York instead of Brussels.
Counsel for the Government argues that the law was violated and that penalty obtains.
Section 102 of the Immigration and Nationality Act ( 8 U.S.C., section 1102) provides:
Except as otherwise provided in this Act, for so long as they continue in the nonimmigrant classes enumerated in this section, the provisions of this Act relating to ineligibility to receive visas and the exclusion or deportation of aliens shall not be construed to apply to nonimmigrants —
(1) within the class described in paragraph (15) (A) (i) of section 101 (a), except those provisions relating to reasonable requirements of passports and visas as a means of identification and documentation necessary to establish their qualifications under such paragraph (15) (A) (i), and, under such rules and regulations as the President may deem to be necessary, * * *.
Title 22, C.F.R., section 41.30 (a) provides as follows:
An alien applying for a nonimmigrant visa under the provisions of section 101 (a) (15) (A) * * * of the act shall be required to establish to the satisfaction of the consular officer that he is an accredited official or employee of a foreign government recognized de jure by the Government of the United States, and that he is acceptable to the President or the Secretary of State, or that he is a member of the immediate family of such official or employee.
8 C.F.R., section 214a.1 provides in part as follows:
Whenever an alien who applies for admission to the United States as a nonimmigrant of one of the classes described in section 101 (a) (15) (A) of the Immigration and Nationality Act presents to the examining immigration officer at a port of entry in the United States a valid unexpired nonimmigrant visa duly issued to him by a consular officer under such classification, the immigration officer shall accept the consular officer's classification of the alien and admit the alien, if he is otherwise admissible to the United States. * * *
Section 273 of the Immigration and Nationality Act ( 8 U.S.C., section 1323) provides:
It shall be unlawful for any person, including any transportation company, or the owner, master, commanding officer, agent, charterer, or consignee of any vessel * * * to bring to the United States from any place outside thereof * * * any alien who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder.
If it appears to the satisfaction of the Attorney General that any alien has been so brought, such person, or transportation company, or the master, commanding officer, agent, owner, charterer, or consignee of any such vessel * * * shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each alien so brought * * *.
Thus, from the regulations hereinabove set forth it is established adequately that visas were required of these passengers and the absence thereof was easily ascertainable by a careful scrutiny of the passports presented by these prospective passengers.
We have carefully considered all of the evidence of record, as well as representation of counsel on both sides, and it is our conclusion that the evidence of record establishes a violation of section 273 of the Immigration and Nationality Act ( 8 U.S.C., sec. 1323) and it, therefore, becomes necessary to dismiss the appeal.
Order: It is ordered that the appeal from the decision of the District Director of Immigration and Naturalization, New York, New York, bearing date March 18, 1954, be and the same is hereby dismissed.