Interim Decision #2862 

MATTER OF "M/V EMMA" 

In Fine Proceedings 

MIA-10/12.1461.1 

Decided by Board April .1 7, 1981 

(1) Under section 273 of the Act, any bringing of an alien to the United States who does 

not meet the visa requirements of the Act incurs liability for a $1000 fine. 

(2) There is no provision for mitigation of fines imposed under section 273 of the Act. 

(3) Section 273(e) permits remission (foregiveness in full) only where prior to the carrier's 

departure from the last port outside the United States, 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. 

(4) The carrier's liability for violations of section 273 is established by 1-94 forms which 

indicate that passengers he brought to the United States were aliens who did not have 

visas or other entry documents. 

(5) The carrier is not entitled to remission under 273(c) on the basis of the argument that 

he had implied consent from the United States government to bring Cuban refugees 

to the United States because the government had not stopped private boat owners from 

bringing such refugees to the United States. 

(6) The carrier who proceeded to Cuba to pick up alien relatives in violation of the law and 

bring them to the United States not only incurred a fine under section 273(c) as to the 

relatives, but as to other Cubans whqm the government of Cuba forced upon the carrier, 

since there was a failure of "due diligence" both in ascertaining the requirements of the 

law and in placing the boat within the jurisdiction of the Cuban government under the 

chaotic conditions that prevailed. .– -- 

In re: "M/V EMMA", which arrived at Key West, Florida, from Cuba, on June 5, 1980. 

Alien passengers involved: Wises Carlos Dela Joe-Caballero, Lazard E. LawsonBrown, Orlando Moreno-Camfillo, Eusebio Goitisolo-Vildoste0o. Leonardo 

Capote-Marrero, Eduards Suguerlies-Seuedero, Wilfredo Gonzalez, Manuel Miltares-Acosta, Ramon Perez-Ricardo, Erosuuo Reyes-Rauio, and Ciro Sanchez-Diaz 

BASIS FOR FINE: Act of 1952—See. 273(a) [8 U.S.C. 273(a)}—Bringing to the United States 

aliens not in possession of unexpired visas 

ON BEHALF OF CARRIER: Nancy I. Fernandez, Esquire 

201 Sevilla, Suite 310 

Coral Gables, Florida 33134 

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

- In a decision issued on January 5, 1981, a District Director imposed 

administrative fines totalling $10,000 upon Mr. Rene Rodriguez for bring40 
Interim Decision #2862 

ing 10 of the 11 above-named passengers to the United States in violation of section 273(a) of the Immigration and Nationality Act, 8 U.S.C. 

1323(a). Pursuant to his prosecutorial discretion, the District Director 

elected not to impose a fine in connection with the 11th passenger. Mr. 

Rodriguez has appealed. The appeal will be dismissed. 

The record shows that Mr_ Rodriguez and two associates departed 

from the United States on April 25, 1980, bound for Cuba. On June 5, 

1980, they returned to the United States with the above-named 

passengers. The record contains a Form 1-94 for each of the passengers 

(Exhibit I). These forms state that the passengers were aliens who did 

not have visas or other entry documents. 

A Notice of Intention to Fine was served on Mr. Rodriguez on the-day 

of his return from Cuba, charging hint with 11 violations of section 

273(a) of the Act; on the ground that he had 11 aliens on his boat who did 

not have visas or other entry documents. Mr. Rodriguez filed a written 

defense to those charges, and, on December 16, 1980, he appeared 

before an immigration officer for a personal interview. 

Mr. Rodriguez explained that he had been trying to bring his parents 

to the United States from Cuba for 3 years when the boat lift operation 

from Cuba started. He waited 4 or 5 days to find out whether the boats 

going to Cuba would be stopped. When the boat lift operation had not 

been stopped by the end of that period, he and two associates went to 

Cuba to get 10 of their relatives. While they were in Cuba, they were 

only able to bring three of their relatives on board their boat. However, 

before they were permitted to leave Cuban waters, eight additional 

passengers were put on board the boat by Cuban authorities. Consequently, although they had intended to bring 10 relatives back to the 

United States, they bought. back 8 Strangers and only 3 relatives. ' 

Section 273(a) of the Act provides that it shall be unlawful for any 

person "to bring to the United States from any place outside thereof 

(other than from foreign contiguous territory) any alien who does not 

have an unexpired visa, if a visa was required under this Act or regulations issued thereunder." Section 273(b) provides that the fine for each 

violation of subsection (a) shall be $1,000. 

It is important to emphasize that fines under section 273 of the Act 

are imposed without regard to the intentions of the carrier. It is not 

necessary for there to be a willful disregard of United States law. Under 

section 273 the carrier becomes, in effect, an insurer that its alien passengers have met the visa requirements of the Act. Any bringing to the 

United States of an alien who does not meet these requirements incurs 

liability. Further, there is no provision for mitigation of such fines. 

Matter of Swissair "Flight #104," 15 I&N Dec. 1 (BIA 1974). Section 

273(c), however, permits remission (forgiveness in Tull) in one circumstance: where it appears that prior to the alien's departure from the last 

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Interim Decision #2862 

port outside the United States, 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. What 

constitutes "reasonable diligence" varies according to the circumstances 

of the ease. Matter qt' "S.S. Florida," 3 I&N Dec. 1 (BIA; A.G. 1948). 

In this case, Mr. Rodriguez contends that the record does not establish that the above-named passengers were alieris without visas or other 

entry documents. Secondly, he contends that in any event fines should 

not be imposed for the passengers who were forced upon him by Cuban 

authorities. Thirdly, he contends that the United States government 

gave implied consent to the boat lift operation by not stopping the 

flow of private boats between the United States and Cuba. 

We first find tht the 1-94 forms in the record establish that the 

above-named passengers were aliens who did not have visas or other 

entry documents. Secondly, we reject Mr. Rodriguez' argument that 

fines should not be imposed for the passengers who allegedly were 

forced upon him by the Cuban authorities. As stated above, fines under 

section 273 are imposed without regard to the carrier's intentions. Any 

bringing of an alien who does not have proper documents incurs liability. 

We find further that Mr. Rodriguez has not established a basis under 

section 27(c) of the Act for remission of his fines. We are not persuaded 

by his argument that he departed for Cuba on April 25, 1980, with 

"implied consent" from the United States government to bring Cuban 

refugees to this country. It was not reasonable for him to infer such 

consent from the fact that private boat owners were still bringing Cuban 

refugees to the United States after 4 or 5 days had passed. In any event, 

however, it was not reasonable diligence on his part to rely upon such an 

inference without making any inquiries, and he has failed to establish 

that he could not by the exercise of reasonable diligence have ascertained the requirements of the law. Furthermore, if he had exercised 

reasonable prudence, he would not have placed himself and his boat 

under the jurisdiction of the Cuban government in the face of the chaotic 

circumstances that existed in Cuba at that time. We conclude, therefore, 

that remission of the fines is not warranted. 

We conclude that the decision of the District Director is correct_ The 

appeal, accordingly, will be dismissed. 

ORDER: The appeal is dismissed. 

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