Fine — Section 273 of 1952 Act — Contract under secti on 238 (d) — Penalty for violation of contract — Amount of penalty not fixed by Air Commerce Act.
(1) Fine in the sum of $1,000 was incurred by a carrier under section 273 (a) of the 1952 act for bringing an alien to the United States without a visa notwithstanding the existence of a contract under section 238 (d) which permitted the entry of certain aliens in transit through the United States without visas, where the evidence shows that the carrier did not submit a Form I-419 and the passenger manifest contained no notation to indicate that the alien came within the agreement.
(2) Liability to $1,000 fine under section 273 (a) of the 1952 act was enacted into the immigration law by Congress and is not limited by the provisions of the Air Commerce Act of 1926, as amended, which impose a $500 penalty for violating regulations adopted by an executive officer and made applicable by him to air commerce.
BASIS FOR FINE:
Section 273 of the Act of 1952 ( 8 U.S.C. 1323) — Alien passenger involved: M---- F---- M----.
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of the District Director at Miami, Florida, dated June 2, 1953, ordering that fine in the sum of $1,000, plus $131.40 for passage money, be imposed on Pan American World Airways, Inc., owner or agent of the specified aircraft, for bringing to the United States in violation of section 273 of the Immigration and Nationality Act, the above-named passenger not in possession of an unexpired visa.
The alien passenger applied for admission to the United States to go in transit to Havana, Cuba, on the same flight. He presented a valid Cuban passport, but no other documents of any kind, except a round-trip ticket from Barcelona, Venezuela, to Havana, Cuba, and return. He was excluded as a nonimmigrant not in possession of a valid nonimmigrant visa, and was deported from the United States at the expense of the transportation company.
The carrier has submitted an affidavit prepared by its traffic clerk to the effect that he prepared Form I-419 (TRWOV), placed it in an envelope and inserted it into the flight documentation briefcase. Also, the carrier has presented a copy of the passenger manifest submitted in connection with the arrival of the flight in question. It reflects that this alien passenger was listed in that portion thereof showing passengers destined to Havana, Cuba, in transit through Miami, Florida, U.S.A.
Counsel has contended that no fine should be assessed in this case for the following reasons:
(1) The Government, by contract, has waived the visa requirements for this alien when travelling in continuous and immediate transit through the United States;
(2) It was only required that an I-419 form be presented to the Immigration Service; and
(3) That failure to deliver the I-419 form subjects the carrier to liquidated damages in the amount of $50.00 under the I-426 agreement and the provisions of the immigration law requiring a visa having been waived by the Government, no penalty may be assessed under section 273 of the Immigration and Nationality Act.
Substantially, counsel's argument in support of the foregoing contentions is as follows:
Section 273 of the Immigration and Nationality Act does provide for the imposition of the penalty imposed in this case where a transportation company brings an alien to the United States where the alien does not have an unexpired visa,
if a visa was
required under this Act or regulations issued
thereunder. But section 238 (d) of the same act authorizes the Attorney General to enter into contracts with transportation lines guaranteeing the passage through the United States in immedate and continuous transit of aliens destined to foreign countries.
8 C.F.R. 238.2 provides that the contracts with the transportation lines shall be made by the Commissioner of Immigration and Naturalization on behalf of the Government, in such forms as the Commissioner shall prescribe. Thereby, the terms of the contract become part and parcel of the regulations, under statutory authorization, supplanting the visa requirements of section 273.
The agreement in effect at the time in question was entered into on Form I-426 (Revised 12/24/52) (2d Rev) Paragraph 2 thereof provides:
That the line shall furnish the Commissioner or an immigration officer in charge designated by him Form I-419, fully and correctly executed in triplicate as to each alien brought to the United States under this agreement and to provide such other forms as may be required by the Commissioner or an immigration officer in charge acting for him in connection with the checking in and out of the United States of all passengers brought for passage in immediate and continuous transit through the United States pursuant to this agreement.
Insofar as we have been able to determine, no other forms were provided for. The second sentence of paragraph 7 of the agreement in effect in this case provides:
That for each and every failure or refusal of the line, or any agent thereof, to furnish a fully and correctly executed Form I-419 as to any alien brought to the United States as required by paragraph 2 of this agreement, the line shall pay to the United States of America, as liquidated
damages and not as penalty, the sum of fifty ($50) dollars, lawful money of the United States.
We, however, find the foregoing argument of counsel to be invalid. In this connection, there is no question but that the carrier did have in effect at the time here involved a valid agreement pursuant to section 238 (d) of the Immigration and Nationality Act, permitting certain aliens without visas to pass through the United States in transit to foreign points. But the important element here is that there is no evidence to show that this alien passenger was being brought to the United States under and pursuant to the terms of the agreement. Many tourist aliens are brought to the United States who do not come within the agreement. The burden is on the carrier to show that this particular one did come within it, but the fact remains that it did not do so here.
The carrier did not submit a written statement signed by the passenger, in accordance with paragraph 1 (d) of the agreement (Form I-426). Nor did it present a Form I-419 in lieu thereof, which would evidence that he had signed such a statement. The affidavit that one was prepared does not suffice. No explanation was offered as to what became of it. The copy of the manifest presented by the carrier contains no information indicating that the passenger fell within the agreement. It does not carry either of the notations "WOV I-419" or "WOV." The testimony of the alien before the special inquiry officer is of no assistance. It makes no reference at all to the matter of the agreement.
The argument has also been advanced that under the Air Commerce Act of 1926, with amendments, the maximum penalty which can be imposed in this case is $500. We, however, do not agree. The $500 penalty provided for in the Air Commerce Act is not a substitute for a specific penalty enacted into an immigration law by Congress, which immigration law is made applicable to air commerce by a regulation adopted by an executive officer of the Government. Rather, the $500 penalty of the Air Commerce Act refers only to a regulation adopted by an executive officer, and made applicable by him to aircraft commerce, and as to which regulation Congress has fixed the $500 penalty. The reason is that in no instance does the executive officer legislate in regard to a penalty; Congress has legislated in both instances.
On the basis of the foregoing, we find that remission of the fine imposed in this case is not in order. Nor is refund of the passage money warranted here. The alien did not accomplish the purpose of his travel to this country. Therefore, we will dismiss this appeal.
Order: It is ordered that the appeal be and the same is hereby dismissed.