F-0606-1646.
Decided by Board August 3, 1954.
Fine — Section 273 of Immigration and Nationality Act — Not incurred where visa not required by reason of 8 C.F.R. 211.3.
Since 8 C.F.R. 211.3 provides that an immigrant visa is not required if a waiver in an individual case is granted, a penalty is not incurred under section 273 of the Immigration and Nationality Act for bringing an alien to whom such a waiver is granted. Section 273 of the act applies only to the bringing of aliens without a visa if a visa was required under the Immigration and Nationality Act or regulations issued thereunder.
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, Miami, Florida, bearing date March 3, 1954, wherein fine in the amount of $1,000 was imposed upon the Pan American World Airways, Inc., owners or agents of the aforementioned plane, which plane arrived at Miami, Fla., on August 30, 1953, from Havana, Cuba, for violation of section 273 of the Immigration and Nationality Act ( 8 U.S.C. 1323).
The specific violation complained of is bringing to the United States from a place outside thereof the alien passenger E---- L---- S----, who, upon arrival, was found to be an immigrant not in possession of an unexpired immigrant visa or permit to reenter the United States as required by section 212 (a) (20) of the Immigration and Nationality Act ( 8 U.S.C. 1182).
The evidence of record shows the subject passenger was born in East Prussia, Germany, on April 2, 1931, and that she is a citizen of Germany. She is employed as a dental technician. The record further reveals that this person was lawfully admitted to the United States for permanent residence at New York, New York, following arrival on the SS. General Black on May 31, 1950. She was admitted as a quota immigrant under and pursuant to the provisions of the Displaced Persons Act. Thereafter, she applied for and obtained a declaration of intention in Milwaukee, Wis., on October 18, 1951, and she was in possession of that document on the occasion of her application for readmission to the United States.
Following arrival she remained in this country until August 28, 1953, when she departed for a vacation in Cuba on a plane of the Pan American World Airways. She was accompanied by her husband. Apparently, she was unaware of the requirements as to passport or permit to reenter the United States or the necessity for having a consular immigrant visa as provided in section 212 (a) of the Immigration and Nationality Act ( supra). It would appear that there was some statement to the effect that she was a citizen of the United States, whereas in truth and in fact, she was married in Milwaukee, Wisconsin, on June 21, 1952, to a naturalized citizen of the United States and she was, as hereinabove set forth, a lawful resident of this country.
The evidence of record clearly establishes that the alien passenger was a lawful resident of the United States who was applying for readmission to this country after a temporary absence in Cuba.
The carrier, through its representative, states that this subject passenger and her husband presented round trip transportation for travel to Havana and return on August 28, 1953, to the carrier's traffic clerk at the Miami International Airport, Miami, Fla. Upon interrogation as to their nationality and country of birth, it is alleged that both stated that they were native-born citizens.
It is the contention of the carrier that inasmuch as these passengers were destined to Cuba and since Cuba, abiding by the Western Hemisphere "good neighbor policy" does not require a passport or visa for United States citizens, they were entirely dependent upon the word of the passengers as to correct nationality. They have supported this allegation by sworn statements of the interrogator and a notarized copy of the passenger manifest prepared during the passengers' travel to Cuba. On the occasion of return the subject alien was again questioned by a representative at the airport in Havana, Cuba, at which time she presented to the carrier's representative the return transportation, Havana to Miami. It is asserted that she emphatically indicated citizenship in the United States.
As hereinabove set forth, the carrier's principal contentions are that they were misinformed as to the correct nationality of this prospective passenger as indicated in the Cuban landing card and as declared before Cuban authorities and that she concealed from the representative of the transportation line that she was in possession of evidence to the effect that she was admitted to this country as a displaced person for permanent residence.
The record further shows that visa and passport requirements were waived and she was readmitted to this country as one previously lawfully admitted returning from a temporary absence abroad.
In 8 C.F.R., section 211.3, it is set forth that any alien * * * who is otherwise admissible, 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, is not required to present a visa if in his particular case a waiver of the visa requirement is granted by (a) the Assistant Commissioner, Inspections and Examinations Division, either at the time of or after the application of the alien for admission to the United States, or (b) the district director or the officer in charge having administrative jurisdiction over the port at which the alien applied for admission, at the time of alien's application for admission and prior to submission of the case to a special inquiry officer or (c) the special inquiry officer in determining the case referred to him.
Since the regulation provides that a visa is not required if a waiver in an individual case is granted, we must find a penalty under section 273 has not been incurred since that section applies only to the bringing of aliens without a visa "if a visa was required under this Act or regulations issued thereunder."
Order: It is ordered that appeal from the decision of the District Director of Immigration and Naturalization, Miami, Fla., bearing date March 3, 1954, be and the same is hereby sustained.