Fine — Section 273 of the 1952 act — Fine liability fixed by regulations in effect at time matter arose.
Where a transportation company becomes liable to fine under section 273 of the Immigration and Nationality Act for bringing a nonimmigrant to the United States without a proper visa, it is no defense that the effect of a subsequently published regulation is to relieve the carrier of penalty in similar cases.
BASIS FOR FINE
Act of 1952 — Section 273 ( 8 U.S.C. 1323).
BEFORE THE BOARD
Discussion: This appeal in administrative fine proceedings is directed to a penalty of $1,000 which has been ordered imposed on the carrier for bringing to the United States on June 10, 1957, nonimmigrant alien passenger J---- T---- L---- whose "single entry" visa was invalid because of prior use, but who was granted a documentary waiver and admitted as a temporary visitor for pleasure. The appeal will be dismissed.
There is no merit to the carrier's contention that it is entitled to remission of this fine for the reason that it exercised due diligence in this matter, on the ground that it has established compliance with the statutory test by evidence showing that its employee abroad checked this passenger's passport and visa, which inspection revealed an unexpired visa and nothing to indicate that it was no longer valid. The fact remains that the evidence that the visa was no longer valid because of prior use was available, in the form of a stamped notation, on the page in the passport following that on which the visa itself was stamped. Certainly, it was not due diligence within the contemplation of the statute for the carrier's representative to note that the visa was valid only for a single entry and not to ascertain whether such an entry had been made by questioning the passenger and/or thoroughly examining the passport he presented to ascertain that fact. We have consistently so held previously, and we so hold here.
It is no defense insofar as this carrier is concerned in this case that the Service recently published a notice of proposed rule-making which, in effect, waived the visa requirements in this type of case, nor that the regulations (8 CFR 212, amended effective January 8, 1958) now provide a blanket general waiver in this type of case. In the first place, no claim has been advanced nor showing made that in this particular case the carrier acted in reliance upon the proposed rule-making change. Secondly, while it is true that no fine would lie in this type of case under the regulations as presently worded ( Matter of Plane "CUT-604," MIA-10/61.133, Int. Dec. No. 925, Apr. 3, 1958), the amended regulations now in effect do not apply retroactively. Thirdly, we hold here, as we have consistently held, that it is the regulations in effect at the time the matter arose which control.
Order: It is ordered that the appeal be and the same is hereby dismissed.