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MATTER OF M/V GUADALUPE
In Fine Proceedings
Decided by Board November 18, 1968 The carrier's contention that due diligence was exercised where the alien
presented a wax-sealed envelope from the American Consulate asserting it contained the necessary visa, is rejected as a defense to fine liability under section 273(a) of the Immigration and Nationality Act for bringing an alien without a visa, since under existing practice (22 CFR 42.124 (a),
(b), (c) and (d)) the forms constituting the visa are not sealed. BASIS FOR FINE: Act of 1952—Section 273(a) [8 U.S.C. 1323]. IN RE: M/V Guadalupe, which arrived at San Juan, Puerto Rico, from for
eign, on March 22, 1968. Alien passenger involved: Rafael Cruzata-Lambert.
ON BEHALF OF APPELLANT:
M. A. Gonzalez, Vice-President & Gen. Mgr.
This appeal is directed to an administrative penalty of $1,000 which the District Director at San Juan has ordered imposed on the International Shipping Agency, Inc., as agents for a vessel, for bringing to the United States from a place outside thereof, other than foreign contiguous territory, the above-named alien passenger who was not in possession of an unexpired visa and was not exempt from the presentation of same by the statute or the regulations promulgated pursuant thereto. The request for cancellation of the fine must be denied and the appeal will be dismissed.
Rafael Cruzata-Lambert is a 24-year-old native and national of Cuba, who arrived in the United States from Spain as a passenger on this vessel, at the time, place and in the manner described above. He was presented for immigration inspection as an applicant for admission for permanent residence. He was in possession of a valid passport, but he was not in possession of an unexpired visa or other document valid in lieu thereof for admission into the United States. Accordingly, liability to the fine has been incurred, and this is uncontested.
Section 273 of the Immigration and Nationality Act makes no provision for mitigation of a fine arising thereunder. However, subsection (c) of the statute does provide for remission (forgiveness in full) of the penalty if, prior to the passenger's foreign embarkation, the carrier did not know and could not have ascertained by the exercise of reasonable diligence that he was an alien and required but lacked a valid visa or lieu document. Since the record shows that the carrier knew this passenger was an alien, the only question remaining for our consideration is whether it knew or could have ascertained by the exercise of due diligence that he lacked a visa.
The carrier claims that when this passenger came for his ticket he was accompanied by his parents, also Cuban nationals, and that all were requested to present their United States visas. It asserts that they showed the ticket agent a big wax-sealed envelope from the American consulate in Bilbao, Spain, and declared that it contained visas for each member of the family. It contends that it could not open the official envelope because it was sealed and, therefore, had to take the aliens' word for the fact that the envelope contained visas for all.
The record, however, contains a memorandum from the examining immigration officer, dated October 21, 1968. It sets forth that visas for this alien's parents were packaged in the normal manner, i.e., various documents were enclosed in a brown manila envelope with appropriate Forms FS-511 for the parents attached to the outside of the envelope with grommets and ribbon. According to 22 CFR 42.124 (a), (b), (c) and (d), Form FS-511, with a Form FS-510 (Visa Application) attached immediately beneath it, constitutes the visa; and the only documents which would be enclosed in a sealed envelope and could only be examined by an immigration officer would be confidential relating documents, but not the visa itself. Under these circumstances, we agree with the District Director that only a cursory inspection was necessary on the carrier's part to ascertain that this alien passenger was not in possession of the required visa. Accordingly, we concur in said official's conclusion that due diligence was not exercised in this matter, and that remission of the
1 Matter of Plane “CUT-480,” 5 I. & N. Dec. 226.
fine is not warranted. All we can add is that the carrier is responsible for the acts of its representatives abroad.
ORDER: It is ordered that the request for cancellation of the fine be denied; that the District Director's decision be affirmed; and that the appeal be and the same is hereby dismissed.
MATTER OF JOSEPH
In Deportation Proceedings
Decided by Board November 29, 1968
(1) While the special inquiry officer must exercise discretion to keep the
hearing within bounds, the strict rules of evidence do not apply in an immigration proceeding and an applicant for relief under section 243 (h), Immigration and Nationality Act, as amended, should be given reasonable opportunity in the presentation of evidence to be relied on by the Attorney General in formulating an opinion as to whether withholding of deporta
tion is warranted. (2) Where the testimony of respondent and his witness affirmatively estab
lished respondent was politically active as a leader of the opposition to the Duvalier regime from 1957 until his departure from Haiti in 1965; he was incarcerated on 3 occasions by the Duvalier regime and was beaten; his father-in-law was assassinated by supporters of Duvalier; and he has been an activist in opposition to Duvalier since his arrival in the United States, respondent has established a clear probability that should he return to Haiti he would be subject to persecution because of political opinion within the meaning of section 243 (h) of the Act, as amended, administrative notice being taken that conditions in Haiti, as set forth in United States ex rel Mercer v. Esperdy, 234 F. Supp. (S.D. N.Y., 1964), have not
improved to any extent since 1964. CHARGE:
Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]-Nonim
ON BEHALF OF RESPONDENT:
James J. Hines, Esquire
ON BEHALF OF SERVICE:
R. A. Vielhaber
The respondent, a native and citizen of Haiti, appeals from an order entered by the special inquiry officer on September 5, 1968 granting him voluntary departure in lieu of deportation as an alien who after entry as a nonimmigrant visitor remained longer than permitted. An application for withholding deportation to Haiti pursuant to section 243 (h) of the Immigration and Nationality Act was denied. Exceptions have been taken to the denial of the application for withholding deportation.
The respondent, a married male alien, last entered the United States through the port of San Juan, Puerto Rico, on or about May 1, 1965. He was admitted as a nonimmigrant visitor for pleasure authorized to remain in the United States until June 15, 1965. He has remained in the United States subsequent to June 15, 1965 without authority and concedes that he is deportable as charged in the order to show cause.
The respondent applied for a withholding of his deportation pursuant to the provisions of section 243 (h) of the Immigration and Nationality Act. The respondent maintains that he is regarded as a political opponent of the Duvalier Regime in Haiti and that he would be subject to persecution on account of his political opinion if he returns to his native country. The special inquiry officer concludes that the respondent has not met the burden of establishing by substantial evidence that he would be subject to persecution because of his race, religion or political opinion if he returns to Haiti.
The respondent testified that during the presidential campaign of 1957 he was active politically in behalf of Louis Dejoie, a candidate who ran in opposition to Duvalier. The respondent further testified that he was a member of the corps of guards organized by Dejoie; that during the campaign, he was arrested, beaten up and taken to jail for no reason (pp. 15 and 16). He was again arrested in 1958, held in prison for six months, and beaten on three occasions. He bears scars on his body as a result of the beatings (pp. 19-21). The respondent testified that after his release from prison in 1958, he joined the underground and on occasion went into hiding (p. 22). He was again arrested for security reasons in February of 1965. He testified that he was beaten while in prison; that upon his release from prison he went into hiding and that soon after his release he began making arrangements to go to the United States (pp. 28-29). He testified that his mother bribed the officers to obtain the necessary papers for entry into the United States (p. 31). He obtained a Haitian passport through a Haitian consul located in Miami, Florida (p. 31).
The respondent testified that after his arrival in the United States, he was active with a political group known as “Luc Somard" which had as its aim the subversion of the Duvalier Government (p. 32). The respondent also testified that he was