F-0606-1939.
Decided by Board May 17, 1955.
Fine — Liability under section 271 of Immigration and Nationality Act incurred even though due diligence observed.
Liability for fine pursuant to section 271 of the Immigration and Nationality Act is incurred for failure to prevent the landing of an alien passenger at a time or place other than as designated by immigration officers even though the carrier acted with due diligence in providing custody for the alien passenger.
IN RE: Plane "N-8224-H" (Flt. 454), which arrived at the port of Miami, Florida, from foreign on August 16, 1954. Alien passenger involved: A---- B---- L---- Y C----.
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of the District Director at Miami, Florida, dated December 21, 1954, ordering that fine in the sum of $1,000 be imposed on National Airlines, Inc., owners and/or agents of the above-described plane, for failure to prevent the landing of the above-named alien passenger, at a time or place other than as designated by immigration officers.
This passenger applied for admission as a visitor for pleasure for a period of two weeks. He presented a valid Cuban passport and a valid B-2 visa. The examining immigration officer ordered the alien detained for further inquiry before a special inquiry officer. In this connection, detention Form I-259 was executed. The passenger was then transported to the Belfort Hotel, a place designated by the Service for detaining aliens such as this one. The day following arrival the passenger was ordered excluded by a special inquiry officer on the ground that he was an immigrant not in possession of a valid immigrant visa and not exempted from the possession thereof. Thereafter, the carrier, through its duly acknowledged representative, accepted the alien for deportation by executing Form I-259, Notice to Detain, Deport or Remove Aliens; and the alien was removed by the carrier to the Belfort Hotel, Miami, to await the next available flight abroad. However, he absconded before the carrier could effect his deportation and his whereabouts are still unknown.
The carrier urges that the evidence of record clearly shows that it acted with all due diligence in presenting and providing custody in the case of this alien passenger. Therefore, it urges that liability has not been incurred under section 271 of the Immigration and Nationality Act. The argument is that, in addition to the fact that it exercised due diligence in the matter, it is relieved from liability by virtue of the provisions of section 233 (a) and (b) of the Immigration and Nationality Act. That is, it is claimed that what took place here was a "temporary removal" and not a "landing," within the meaning of section 233 (a); and that since it was a "temporary removal," the carrier is relieved of responsibility for the safekeeping of this alien passenger, under section 233 (b). In other words, the claim is that the carrier is not responsible here because the alien passenger escaped during a "temporary removal."
We, however, find this contention to be without merit. In the first place, Congress made it the duty, in enacting section 271 of the Immigration and Nationality Act, of the owners, officers, and agents of carriers to prevent the landing of aliens in the United States at any time or place other than as designated by immigration officers. Clearly, the intention of the statute was to make imperative the duty of preventing such unlawful landings of aliens. That is, section 271 of the Immigration and Nationality Act calls for the imposition of a penalty where, as here, the persons specified in the statute failed in their duty to prevent illegal entries. In other words, the statute creates a positive duty on the part of the persons named therein to prevent the illegal entry into the United States of any alien brought here on a vessel or aircraft (See Matter of Plane NC-SJD-004, F-0606-1286, 5 IN Dec. 482).
On the basis of the foregoing, we find that a penalty has been properly imposed in these premises. The alien passenger escaped from the carrier's custody. Therefore, it failed to meet the duty imposed upon it by the statute. Accordingly, this appeal must be dismissed.
However, the carrier has alternatively requested mitigation of the fine imposed by the district director. In this connection, the carrier asserts that it acted with all due diligence in presenting and providing custody for this alien passenger. The carrier sets forth that he was taken to a hotel designated as a place of detention by the Service. Arrangements were made to effect the alien's deportation, but he escaped prior to their completion. Under the circumstances, we think that mitigation is merited. Order: It is ordered that the appeal be and the same is hereby dismissed.
It is further ordered that the amount of the penalty be mitigated to the extent of $700. The remaining fine will be $300.