F-0300-7263.
Decided by Board December 19, 1955.
Fine proceedings — Section 273 (a) of Immigration and Nationality Act — Waiver under 8 C.F.R. 211.3 no defense to imposition of penalty thereunder.
A waiver of documents granted to a returning resident alien after arrival in the United States on the basis of an unforeseen emergency pursuant to 8 C.F.R. 211.3 as amended on December 24, 1954, does not constitute a defense to the imposition of administrative penalty under section 273 (a) of the Immigration and Nationality Act.
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 the above-described aircraft, for bringing to the United States alien passenger M---- G---- F---- who was not in possession of an unexpired visa.
The facts of this case are not in dispute. Upon arrival, the passenger, an alien who was previously lawfully admitted to the United States for permanent residence, presented her Alien Registration Receipt Card (Form I-151). She had presented this document to the carrier's representative in Jamaica, British West Indies, prior to her foreign embarkation. He allowed her to board the plane for the United States on the strength of this document. Said document did not entitle the passenger to admission, but she was admitted under a documentary waiver pursuant to section 211 (b) of the Immigration and Nationality Act and 8 C.F.R. 211.3.
Counsel's first contention is that section 211 (b) of the act created a statutory waiver in this case and, therefore, that no fine lies under section 273 of the act. It is his theory of the case that a fine will lie only where the waiver is refused and the alien is required to obtain a visa. We, however, disagree.
Section 212 (a) (20) of the Immigration and Nationality Act renders excludable any immigrant alien who is not in possession of a valid unexpired visa, if such document is required under the regulations issued by the Attorney General pursuant to section 211 of the act. Section 273 of this act provides a penalty for bringing to the United States any alien who does not possess a visa, if a visa is required under the act or the regulations issued thereunder. Section 211 (b) of the act grants the Attorney General authority to admit a returning resident alien without requiring a visa, but only "in such cases or in such classes of cases and under such conditions as may be by regulations prescribed."
The meaning of the foregoing sections of the statute is unambiguous. Clearly, sections 212 (a) (20) and 273 thereof make exception to the visa requirements dependent upon section 211 of the act and the regulations. Section 211 (b) of the act does create an exception, but this exception so created is limited, by the terms of this section itself, to the regulations promulgated thereunder. Thus, the determination of this case rests upon the provisions of the pertinent regulations.
The regulation here involved is 8 C.F.R. 211.3. Prior to amendment on December 24, 1954, it read:
Immigrants not required to present visas. Aliens of the following-described classes * * * who are otherwise admissible, who have been lawfully admitted to the United States for permanent residence, and who are applying for admission to the United States after a temporary absence, are not required to present visas: * * *
(e) Any alien in whose particular case a waiver of the visa requirement is granted * * * upon a determination * * * that presentation of a visa is impracticable because of emergent circumstantes over which the alien has no control and that undue hardship would result to such alien if such presentation is required: * * *.8 C.F.R. 211.3, as amended, reads:
Authority to grant individual waivers. Any alien * * * who has been lawfully admitted to the United States for permanent residence and who is applying for admission to the United States after a temporary absence may be granted * * * a visa waiver * * * upon a determination * * * that presentation of a visa * * * is impracticable because of emergent circumstances over which the alien has no control and that undue hardship would result to such alien if such presentation is required: * * *.
We hold that, because of the present wording of the regulation, this case clearly comes within the scope of our decision in the Matter of SS. "Florida" (F-0606/1549, April 1, 1954, Int. Dec. No. 590). For the reasons set forth therein, we conclude that a fine has properly been imposed on this carrier for bringing the alien passenger to the United States without a visa. Also, the amendment of the regulation renders inapplicable here the prior decisions of this Board cited by counsel; they were based on the regulation prior to its amendment.
Counsel alternatively argued that our present holding brings this regulation into conflict with the statute. The theory is that 8 C.F.R. 211.3 is merely descriptive of the statutory waiver set forth in section 211 (b) of the act. Again, we disagree.
We find that the regulation meets the test of its validity. It was promulgated by the Attorney General who is charged with the administration of the immigration laws, and it is addressed to the enforcement of those laws. Its promulgation is specifically authorized in the very section of the law relied upon by counsel. The provisions of the regulation supplement the statute rather than conflict with it.
Finally, due diligence is obviously not a factor here, and the statute makes no provision for mitigation. Therefore, we will now enter an order dismissing this appeal.
Order: It is ordered that the appeal be and the same is hereby dismissed.