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In FINE Proceedings


Decided by Board April 12, 1962
Decided by Attorney General April 16, 1963

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In a fine proceeding under section 273, Immigration and Nationality Act, the

carrier is not precluded from offering evidence on the question of due diligence simply because that evidence might tend to impeach the correctness of the

order excluding the alien. IN RE: SS. RYNDAM, which arrived at the port of New York from foreign on

February 20, 1961 ; Alien passenger involved : HERMANUS C. BRONS. BASIS FOR FINE: Act of 1952-Section 273 [8 U.S.C. 1323].


In connection with the arrival of the alien passenger mentioned above, the District Director at New York imposed an administrative penalty of $1,000 against Holland-America Line. We withdrew the District Director's order on November 20, 1961 and remanded the case to him in order that the carrier might have the opportunity of submitting additional pertinent evidence. On February 12, 1962 we denied a motion of the Service for reconsideration. The matter is now before us pursuant to the request of the Service on March 6, 1962 that the case be referred to the Attorney General for review under 8 CFR 3.1(h) (iii).

Hermanus C. Brons, the alien passenger involved, was admitted to the United States for permanent residence as an immigrant on December 3, 1956. At the time of the arrival involved here (February 20, 1961), he was in possession of a valid Dutch passport and an Alien Registration Receipt Card (Form I-151) No. 10443369. Under 8 CFR 211.1, the Form I-151 would have relieved this alien from the requirement of a visa if he was returning to an unrelinquished lawful permanent residence after a temporary absence abroad not exceeding one year. At the exclusion hearing, the alien testified (p. 5) that he had received a card from his local draft board in Columbus, Ohio

regarding a physical examination, and that he was planning to go there directly for the purpose of being inducted as soon as possible. He also testified that, when he left the United States about November 1959, it was for the purpose of marrying his fiancee and with the intention of returning to the United States with his wife after the marriage. The special inquiry officer held that the alien had been abroad for more than one year and that he had abandoned his status as a lawful permanent resident. That officer directed that the alien be excluded and he was returned to the vessel on the same day for deportation. A letter dated September 12, 1961 from the Holland-America Line contains the statement that, at the time the alien booked passage on February 6, 1961, he had presented a letter indicating that he lived in the United States until February 15, 1960.

In attempting to state the issue in this case, the memorandum of the Service dated March 6, 1962 shows that it believes that the carrier is making an "unwarranted collateral attack on a duly-entered final order of exclusion.” However, the actual issue here is simply whether or not the carrier is entitled to present its defense in full. That this question must be answered in the affirmative seemed so clear to us that we did not deem it necessary to answer in detail the arguments in the Service motion of December 13, 1961. Since the Service memorandum of March 6, 1962 complains that we did not answer any of the points it had raised, we believe that some further clarification of the matter is appropriate.

Subsection (a) of 8 273 of the Immigration and Nationality Act [8 U.S.C. 1323(a)] makes it unlawful to bring to the United States “any alien who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder" (emphasis supplied); subsection (b) provides that, if the Attorney General is satisfied that there has been a violation, a fine of $1,000 shall be imposed; and subsection (c) prohibits remitting or refunding the fine unless it appears to the satisfaction of the Attorney General that the carrier "did not know, and could not have ascertained by the exercise of reasonable diligence, that the individual transported was an alien and that a visa was required.” The carrier is seeking to present evidence on two points: (1) that this particular alien did not require a visa and (2) that, even if a visa was required, the fine should be remitted under 3273(c).

It was not until March 31, 1961, about a month after the alien's deportation from the United States, that the carrier was notified by the District Director concerning his intention of imposing a fine under $ 273. In the carrier's protest to the imposition of fine, submitted on May 18, 1961, a request was made for a transcript of the exclusion proceeding and an opportunity to cross-examine the alien. A letter


of the District Director at New York (apparently dated August 25, 1961) informed counsel that no action could be taken upon his request for cross-examination of the alien passenger.

Our action in this case, which permits the carrier to present additional pertinent evidence including the testimony of the alien passenger, does not imply that it is the duty of the Service to render assistance to the carrier in presenting its defense, nor that it is the obligation of the Service, in a case such as this, to have the passenger available for cross-examination by the carrier. On the contrary, we do not hold that the carrier was entitled to cross-examine the alien during the exclusion proceeding nor that it was necessary to notify the carrier, prior to the deportation of the alien from the United States, concerning the possible institution of fine proceedings. However, the carrier here has assumed the full responsibility for producing the alien before the American Consular Officer in the Netherlands, and counsel has suggested that he will bear the expense of questioning the alien through interrogatories and cross-interrogatories. Under the circumstances, the case is simply one in which the carrier desires to present the testimony of a witness for the consideration of the District Director, and we do not believe there is any basis for refusing to accept the testimony merely because the witness happens to be the alien passenger involved. On the other hand, if an alien departs from the United States and the carrier is unable to locate him, the carrier would be in the same position as any other litigant who is unable to produce a witness.

The question of whether or not this alien passenger had abandoned his residence in the United States and the question of whether he had or had not been absent for over one year are clearly matters pertinent to the carrier's defense. Assuming that the carrier will produce the alien before the American Consular Officer, we believe that will be the appropriate method of affording the carrier an opportunity to question the alien as a witness in its defense.

The motion of the Service dated December 13, 1961 refers to "an unwarranted reexamination of a duly-arrived-at exclusion ruling of a special inquiry officer, after hearing” (p.5) and contains the assertion that counsel is seeking to make a collateral attack on the special inquiry officer's findings (p. 7). At the exclusion hearing, the special inquiry officer made no formal findings of fact but it is clear that he did hold that the alien required an immigrant visa. The Service takes the position that the carrier is conclusively bound by such a finding of a special inquiry officer and apparently it claims this would be true regardless of what facts a carrier might be able to present to show that, in a particular case, the alien did not require a visa. None of the cases cited by the Service is authority for such a proposition, and the Service has not brought to our attention any provision of the statute or regulations which would preclude a carrier from presenting evidence that an arriving passenger actually did not require a visa.

In Matter of H-, 71. & N. Dec. 407, 409 (1957), where there had been a prior judicial decision, we discussed the distinction between res judicata and collateral estoppel by judgment. Although the Service has refrained from using these terms, it apparently is seeking to apply these doctrines to the special inquiry officer's finding that the alien required a visa. However, these doctrines can be utilized only where the same parties are involved in the two proceedings and they cannot be applied to this carrier who was not a party to the exclusion proceeding

The carrier is not attacking the exclusion order as such and any decision which may eventually be made with respect to the carrier will have no effect on the finality of the order excluding the alien. In other words, after the carrier has had the opportunity of presenting its defense in full, the District Director will be able to pass on whether the carrier is subject to fine, depending on whether this alien did or did not require a visa. However, if the District Director holds that the alien did not require a visa, the alien himself will not be able to attack the exclusion order since it became final as to him on February 20, 1961 under $ 236 of the Immigration and Nationality Act.

The Service stated (motion of December 13, 1961, p. 8) that the Board had uniformly rejected attempts of carriers to bring fine proceedings within the Administrative Procedure Act and the decision in Wong Yang Sung v. McGrath, 339 U.S. 33 (1950). Although this statement of the Service is correct, it has no particular relevance since counsel has not claimed that the Administrative Procedure Act or the Sung decision have any applicability to this fine proceeding.

As counsel indicated, the court made the following statement in Lloyd Sabaudo Societa Anonima v. Elting, 287 U.S. 329, 336–337 (1932):“We think it clear * * that the statute, as it has been consistently construed administratively, contemplates that the Secretary should fairly determine, after a hearing and upon the evidence, the facts establishing its violation.” The pertinent regulations are contained in Part 280, Title 8, Code of Federal Regulations. 8 CFR 280.14 specifically refers to testimony adduced at the interview, and we believe it is immaterial that Part 280 contains references to "personal appearance" and "personal interview" rather than to a hearing. We hold that the regulations in Part 280 provide due process.

In its motion of December 13, 1961 (pp. 5–9), the Service argued that, on the basis of all the facts of record, the alien required a visa and the carrier did not exercise reasonable diligence. It may be that this will be our eventual conclusion. However, the important consideration in this case is that 8 CFR 280.12 specifically provides: "* * * the evidence in opposition to the imposition of the fine and in support of the request for mitigation or remission may be presented at such interview." Here we have a case in which the carrier desires to present the alien's testimony for the consideration of the District Director, and the Service seeks to preclude the presentation of such evidence. We find no merit in the contention of the Service that the alien's testimony would be of no value to the carrier. After the testimony is taken, it may be of no value or it may even be damaging to the carrier. However, the regulation specifically provides that the carrier may present evidence in opposition to the imposition of fine and, if it desires to present the alien's testimony, we believe the carrier is entitled to do so.

The Service asserted (motion of December 13, 1961, p. 8) that the requirements of procedural due process stated in 8 CFR 280 “were punctiliously followed in this proceeding". Actually, in certain respects the requirements of the regulation were not observed. In the first place, when the carrier protested the imposition of fine, it requested cross-examination of the alien. The District Director's letter stated that no action could be taken upon this request and referred to the alien's departure from the United States. We have held above that a carrier may present the alien passenger as its witness and that the testimony may be taken through interrogatories before an American Consular-Officer. The District Director's refusal to take action on counsel's request was in error since it precluded the carrier from presenting certain evidence in opposition to the imposition of a fine as provided by 8 CFR 280.12.

In another respect also there was a failure to comply with the regulation. Where a personal appearance is requested, 8 CFR 280.13(b) states that the case shall be assigned to an immigration officer and provides: “The immigration officer shall prepare a report summarizing the evidence and containing his findings and recommendation. The record, including the report and recommendation of the immigration officer, shall be forwarded to the district director” (emphasis supplied). 8 CFR 280.14 specifically refers to the “record made under $ 280.13” and sets forth certain additional matters to be included. The record before us does not contain the report summarizing the evidence, prepared by the immigration officer to whom the case was assigned, nor his findings and recommendation.

A third matter is that 8 CFR 280.14 provides that one of the items to be included in the record is "documentary evidence and testimony adduced at the interview" (emphasis supplied). Since we were not even furnished the immigration officer's report under 8 CFR 280.13(b), we are unable to determine precisely what transpired at the personal interview, and we believe the present record is defective for that reason.

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