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MATTER OF GONZALEZ-BECERRA

In Exclusion Proceedings

A-17922952

Decided by Board September 30, 1969

Appellant, who presented a labor certification issued by the Department of

Labor on the basis of a represented wage of $1.50 per hour whereas, in fact, the actual agreed wage was $3.00 per hour, is excludable under section 212(a) (14) of the Immigration and Nationality Act, as amended, for lack of a valid labor certification since at the higher wage rate domestic workers would have been available and the certification would not have been issued.

EXCLUDABLE: Act of 1952—Section 212 (a) (14) [8 U.S.C. 1182]—Immigrant

entering to perform skilled or unskilled labor -no valid labor certification.

This case is before us on appeal from the special inquiry officer's decision of May 26, 1969, directing that the appellant be excluded and deported from the United States, on the ground set forth above. The appeal will be dismissed.

The record relates to a male alien, a native and citizen of Mexico, approximately 38 years of age, who is unmarried but who has resided with a woman in Mexico for several years by whom he has sired six children. He arrived at the port of San Luis, Arizona, coming from San Luis, Sonora, Mexico, on September 20, 1968. He applied for admission as a special immigrant, born in an independent country of the Western Hemisphere. He was in possession of an immigrant visa issued to him on September 4, 1968. Attached thereto was a labor certification issued by a lawful representative of the United States Secretary of Labor, certifying him for employment as an animal skinner for a company known as Western Commodities, Yuma, Arizona.

As pointed out by the special inquiry officer, an alien such as the appellant is required by section 212 (a) (14) of the Immigration and Nationality Act (8 U.S.C. 1182) to present a valid certification by the Secretary of Labor in connection with his desire to enter the United States for the purpose of performing labor. Under the related regulation, 29 CFR 60.5, the labor certification is not valid if the representations upon which it is based are not correct. The special inquiry officer has concluded, and we find correctly so, that the facts of this record, as hereinafter summarized, establish that the appellant's labor certification was invalid because of incorrect representations.

The Labor Department's certification application reflected that the appellant was to be paid $1.50 an hour. The testimony of record, however, as succinctly summarized in the special inquiry officer's opinion, shows that the salary agreement between the appellant and the prospective employer was actually at the rate of $3.00 an hour. In this connection, we agree that the special inquiry officer that the amount of the salary which the prospective immigrant is to receive is certainly a most material item with reference to the issuance of a certification by the Department of Labor, under the provisions of section 212 (a) (14) of the Immigration and Nationality Act and the related regulation, 29 CFR 60.5. Under the circumstances outlined, we think the fact that the appellant has now indicated that he is willing to work for $1.50 an hour is immaterial. Our reason is that the actual agreement between the parties rendered the labor certification presented by the appellant invalid, and his post facto declaration does not alter this fact.

With respect to the foregoing, the record reflects that the local office of the Labor Department indicates that if the job in question were made available at the higher rate of $3.00 an hour, local workers with experience as animal skinners and butchers would accept it. As a matter of fact, the special inquiry officer has pointed out that two applicants had expressed an interest in it at that rate. Under these circumstances, we are in agreement with the special inquiry officer that the actual arrangement that existed in this case frustrated the requirement of section 212(a) (14) of the Immigration and Nationality Act that the certification issued by the Secretary of Labor be based on the fact that "there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of the application for a visa and admission to the United States and at the place where the alien is destined to perform such skilled or unskilled labor * * *

In conclusion, we note that the special inquiry officer recessed the hearing for several months, and thereafter deferred entering his decision in the case again for several months, to give the respondent an opportunity to obtain a certification covering the job in question in the light of the actual arrangement between the parties, and that such a document has not been forthcoming to date. This fact, we think, supports the special inquiry officer's rationale that had the application for the labor certification the appellant presented reflected the true salary that he was to be paid, namely $3.00 per hour, the certification would not have been issued as individuals were available who would take the employment at that rate. Accordingly, and in view of the foregoing, we affirm the special inquiry officer's decision that the appellant is excludable on the ground that the labor certification he presented was invalid.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

MATTER OF TACA INTERNATIONAL AIRLINES PLANE "FLIGHT 110"

In Fine Proceedings

NOL-10/61.335

Decided by Board September 30, 1969

Liability to fine for failure to prevent the unlawful landing of an alien lies

under section 271(a), Immigration and Nationality Act, where the airline failed to present, as directed, an alien passenger returned to its custody for deferred inspection. Mitigation of the $1,000 imposed fine beyond the extent of $300 is not warranted since no precautions were taken to prevent the illegal entry of the alien who was permitted to proceed to a hotel

of his own designation without further safeguards. IN RE: TACA INTERNATIONAL AIRLINES PLANE “FLIGHT 110" which

arrived at the port of New Orleans, La., from Honduras, on March 16, 1969. Alien passenger involved: Jose Omar Quijana Rodriguez.

BASIS FOR FINE: Act of 1952-Section 271 (a) [8 U.S.C. 1321].

ON BEHALF OF APPELLANT:

Peter J. Messina, Station Mgr.
Taca International Airlines, SA
P. O. Box 428
Kenner, Louisiana 70062

This matter is before us on appeal from a decision of the District Director at New Orleans, Louisiana, dated June 24, 1969, directing that a fine in the amount of $700, $1,000 mitigated to the extent of $300, be imposed on Taca International Airlines, SA, as owners of the above-described aircraft, for failure to deliver the above-named alien passenger for immigration examination, as ordered.

The material facts of this matter are not disputed between the parties and, indeed, an independent review of the record reveals no basis for a factual dispute. The carrier brought the person named above, a Colombian national, to the United States as a passenger at the time, place and in the manner described above. He presented a Colombian passport and a nonimmigrant visa issued to him on February 25, 1969, by the American consultate, Bogota, Colombia, permitting his application for admission as a temporary visitor for pleasure. The examining immigration officer deferred his inspection to permit him to show that he had funds sufficient to support himself while visiting in the United States. In connection therewith, however, the passenger was returned to the custody of the carrier which was served with a Form I-259 directing it to deliver the passenger to the Service office in New Orleans on March 17, 1969, at 10:30 a.m. On that date the carrier reported that the alien had not registered at the designated hotel, and that he could not be located. He has not since been found.

The Congress, in enacting this statute, made it the duty 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 an illegal entry. 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 an alien brought here on a vessel or aircraft. See Matter of Plane "NC-SJD-004," 5 I. & N. Dec. 482. Accordingly, and on the basis of the foregoing, we conclude that liability to this fine has been established.

There remains, however, the question of whether more mitigation than has already been authorized by the District Director is warranted in these premises and, if so, how much. On this point, the following factors, though not exclusive, are elements to be considered: (1) notice to the hotel by the carrier of intention to lodge the

passenger there; (2) delivery of the passenger detained by the carrier to the

hotel; (3) subsequent delivery to the Service for a hearing (inspec

tion); (4) efforts on the part of the carrier to locate the alien who

has absconded; and (5) actual return of the alien to the carrier and removal by

the latter from the United States. The more of these factors that are present, obviously, the more mitigation authorized. Here, however, we do not find the presence

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