Border Patrol and the employees of Southern Pacific. Various photographs of the Southern Pacific bridge facilities and its police activities were also submitted by counsel.

Section 271(a) of the Act2 provides, in pertinent part, that the owners of an international bridge who provide a means for an alien to enter the United States have a duty to prevent the unauthorized landing of such alien in the United States. Under the provisions of this section, any person who fails to comply with the requirements shall be liable to an administrative penalty. The Attorney General may, in his discretion, remit or mitigate a penalty that has been imposed. Counsel argues that section 271(a) does not apply to the Southern Pacific bridge because it is used by its owners for the purpose of operating freight trains from Mexico to the United States and that it is not engaged by its owners for passenger transportation. We find, however, that the Southern Pacific bridge has been used by Mexican aliens as a means of entering the United States without undergoing inspection by Service officials.

3

In determining the applicability of section 271(a) to the present case, we recognize that this section is a substantial reenactment of section 10 of the Immigration Act of February 5, 1917, as amended by section 27 of the Immigration Act of 1924. Our review of the legislative history 3 of section 10 of the Act of 1917 fails to show that Congress intended to distinguish the bridge described in this case from other types of international bridges. In fact, it is clear that Congress specifically added the phrase ". . . or providing a means for an alien to come to the United States. . ." in section 10 of the Immigration Act of 1917 in order to include international bridges and toll roads within the purview of the statute. The Habana, 63 F.2d 812 (2 Cir. 1933). See also 33 Op. Att'y Gen. 362, 363 (1922). In Osaka Shosen Kaisha Line v. U.S., 300 U.S. 98 (1936), the Supreme Court held that the words in section 10 of the Act of

2 Section 271(a) of the Immigration and Nationality Act provides that:

It shall be the duty of every person, including the owners, masters, officers, and agents of vessels, aircraft, transportation lines, or international bridges or toll roads, other than transportation lines which may enter into a contract as provided in section 238, bringing an alien to, or providing a means for an alien to come to, the United States (including an alien crewman whose case is not covered by section 254(a)) to prevent the landing of such alien in the United States at a port of entry other than as designated by the Attorney General or at any time or place other than as designated by the immigration officers. Any such person, owner, master, officer, or agent who fails to comply with the foregoing requirements shall be liable to a penalty to be imposed by the Attorney General of $1,000 for each such violation, which may, in the discretion of the Attorney General, be remitted or mitigated by him in accordance with such proceedings as he shall by regulation prescribe. Such penalty shall be a lien upon the vessel or aircraft whose owner, master, officer, or agent violates the provisions of this section, and such vessel or aircraft may be libeled therefore in the appropriate United States court. 3 See S. Rep. No. 352, 64th Cong., 1st Sess. pp. 10, 11 (1916); S. Doc. 451, 63d Cong., 2nd Sess. p. 7 (1915).

1917 were plain and that therefore the words required no construction. The Court pointed out that where the language is clear, it is conclusive.

We conclude that section 271(a) is applicable to international bridges; that the Southern Pacific bridge is an international bridge; and that, therefore, the statute is applicable to it.

Counsel submits that Southern Pacific had no knowledge of the unauthorized landing of the five aliens described in this case, and that, therefore, it should not be held liable under section 271(a) of the Act. In enacting section 10 of the Act of 1917, Congress intended to impose a strict liability on those persons who violated its provisions by failing to prevent an unauthorized landing by an alien. In Osaka Shosen Kaisha Line v. U.S., supra, liability under section 10 of the Immigration Act of 1917 was incurred when a transiting passenger departed the vessel in the United States, although there was no intent on the part of the vessel owner to leave the alien there. In Matter of S.S. "Sarcoxie," 1 I. & N. Dec. 250 (1942), we held that liability under section 10 of the Immigration Act of 1917 is incurred if an alien has landed without permission and that whether or not due diligence is exercised is immaterial. Matter of Plane N-8224-H, 6 I. & N. Dec. 594 (1955); Matter of Taca International Airlines Plane "Flight 110," 13 I. & N. Dec. 390 (1969). It is clear that Congress did not intend that the exercise of due diligence by or the intention of the person subject to the statute should be material elements in determining whether liability has been incurred. Likewise, Congress did not intend that actual knowledge of the unauthorized landing of an alien should be an essential ingredient for the imposition of a fine under the statute. If that were the case, a carrier or owner of an international bridge or toll road could always disclaim liability by simply stating that he did not have "actual knowledge". This construction, if adopted, would be unreasonable and would contradict the express terms of the statute. Cf. The Manuel Arnus, 75 F.2d 943 (2 Cir. 1935), cert. denied 295 U.S. 756 (1935).

We find that five aliens landed in the United States without authority via the Southern Pacific bridge on December 16, 1975, and that Southern Pacific or its employees did not prevent their unauthorized landing. Therefore, we conclude that the respondent is liable under section 271(a) of the Act for failing to prevent the unauthorized landing of aliens.

This case is complicated by the fact that the Service sought and obtained a written agreement with Southern Pacific which affected the manner in which aliens were prevented from entering the United States via the Southern Pacific bridge. By virtue of this agreement, Service personnel were permitted by Southern Pacific to enter onto its property

4

* See HR 10384, 64th Cong., 1st Sess., Cong. Rec. 5029-5030 (1916).

in order to construct, maintain and operate a gate (at government expense) which was used to deter aliens from crossing the bridge. After the gate was constructed and was manned by Border Patrol agents, it became evident that the Service had undertaken the responsibility for preventing the unauthorized landing via the Southern Pacific bridge. The operation of the gate by the Service apparently continued for several years until the Service became concerned about the hazards to its personnel who walked onto the bridge to operate the gate. The Service then sent numerous letters to Southern Pacific requesting that Southern Pacific install planking on its bridge at its expense in order to neutralize the hazards. For reasons of cost and perhaps fire safety, Southern Pacific refused to comply with the repeated requests. In a number of communications with Southern Pacific, the Service made it clear that unless the company installed planking or some other devices to prevent hazards on the bridge, the Service would institute fine proceedings against it.

We find that the conduct of the Service in its dealings with Southern Pacific has been inconsistent and irregular. It is obvious that the Service actually sought to erect a gate on railroad property in order to minimize its own surveillance of aliens attempting surreptitious entries across the border. Unfortunately, the operation of the gate by Service personnel over a period of years caused Southern Pacific to rely on the government to fulfill its own statutory responsibility.

Prior to these proceedings, Southern Pacific in El Paso had not incurred liability under section 271(a) of the Act. That company has a long history of cooperation with the Border Patrol and other branches of the Service. In fact, we find that Southern Pacific has now improved the effectiveness of the gate on its bridge at its own expense and has undertaken to man the gate without the assistance of the Border Patrol. We also find that it is active in the apprehension of alien trespassers and continues to cooperate with the Service.

We conclude that, in view of Southern Pacific's past record of cooperation with the Service and its current efforts to assume its responsibility under section 271(a) of the Act, remission of the fines imposed by the Service is appropriate. Accordingly, that part of the appeal requesting termination of these proceedings will be dismissed; and that part of the appeal requesting remission of the fines will be sustained pursuant to 8 C.F.R. 3.1(b)(4) and Part 280.

ORDER: That part of the appeal requesting termination of the fines proceedings is dismissed.

FURTHER ORDER: That part of the appeal requesting remission of the fines is sustained. The fines are hereby remitted.

Board Member Irving A. Appleman abstained from consideration of this case.

MATTER OF CABUCANA

In Visa Petition Proceedings

A-21267608

Decided by Board May 20, 1977

(1) The beneficiary, who was born in the Philippines in 1964, was adopted by petitioner in 1973 pursuant to a decree issued by a family court in the State of Hawaii. The District Director denied the visa petition to classify the child as an immediate relative under section 201(b) of the Immigration and Nationality Act on the ground that the adoption decree was not entitled to recognition because the beneficiary had never lived in Hawaii.

(2) A Hawaiian court has jurisdiction to grant adoption of a child residing outside Hawaii, and such decree will be recognized for immigration purposes. See Pascual v. O'Shea, 421 F. Supp. 80 (1976). Matter of Dela Cruz, Interim Decision 2470 (BIA 1976) overruled.

(3) Notwithstanding that the adoption decree is valid, there is no evidence in the record that beneficiary had resided with either the petitioner or her spouse for the two-year period required under section 101(b)(1)(E) of the Act. In the circumstances, the petition must be denied because the petitioner has failed to sustain that the beneficiary is her adopted child for purposes of the Act.

ON BEHALF OF PETITIONER: Walter S. Kirimitsu, Esquire

531 Avocado Street
Wahiawa, Hawaii 96786

BY: Milhollan, Chairman; Maniatis, and Appleman, Board Members

The United States citizen petitioner applied for immediate relative status for the beneficiary as her adopted child under section 201(b) of the Immigration and Nationality Act. The District Director denied the petition on June 21, 1976, and the petitioner has appealed from that denial. The appeal will be dismissed.

Under section 201(b) of the Act a child of a United States citizen may qualify as an immediate relative and be admitted to the United States without regard to the numerical limitations of the Act. The term "child" is defined in the Act and, under section 101(b)(1)(E), includes a child adopted while under the age of 14 years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.

The beneficiary was born in the Philippines on November 10, 1964. The petitioner, the beneficiary's paternal aunt, has submitted a decree

issued by a family court in Hawaii showing that the beneficiary was adopted by the petitioner and her husband in 1973.

The District Director denied the petition on the ground that the adoption decree is not entitled to recognition. He reasoned that, because the beneficiary has never been in Hawaii, the court lacked jurisdiction to issue the decree.

Subsequent to the District Director's decision, however, the United States District Court for the District of Hawaii rendered its decision in Pascual v. O'Shea, Civil No. 76-0081 (D. Hawaii, September 30, 1976), reversing an order of the Board dealing with the same issues which are before us now, namely, whether a Hawaii state court has jurisdiction to grant adoption of a child residing outside Hawaii and whether the adoption is entitled to recognition under the immigration laws. In Pascual the court held that the state court had jurisdiction to grant the adoptions and ordered that the visa petitions be approved. Accordingly, we hold that the adoption decree in the present case is entitled to recognition. The Board's decision in Matter of Dela Cruz, Interim Decision 2470 (BIA 1976), also reversed in Pascual v. O'Shea, is overruled. Although it appears as though the legal custody requirement of section 101(b)(1)(E) has been satisfied, the record contains no evidence that the beneficiary has resided with either the petitioner or her spouse for the two-year period required by the Act. As a consequence, we conclude that the petitioner has failed to sustain her burden of establishing that the beneficiary is her adopted child for the purpose of the Act. See Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). The result reached by the District Director was correct and the appeal will be dismissed.' ORDER: The appeal is dismissed.

1

We note that the record contains evidence that the beneficiary may qualify for immediate relative status as an orphan under section 101(b)(1)(F) of the Act. Inquiries in this regard should be made to the Service.