In re Varig Brazilian Airlines “Flight No. 830”

File LOS 911430 - Los Angeles

Decided February 18, 1997

Decided October 22, 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The reasonable diligence standard of section 273(c) of the Immigration and Nationality

Act, 8 U.S.C. § 1323(c) (Supp. III 1991), is applied both to the determination of whether the

passenger was an alien and to the adequacy of the carrier’s examination of the passenger’s

documents.

(2) In a determination of reasonable diligence under section 273(c) of the Act, the carrier must

demonstrate by a preponderance of the evidence that it has established, and its staff has complied with, procedures to ensure that all of its passengers’ travel documents have been

inspected prior to boarding so that only those with valid passports and visas are permitted to

board.

(3) Where a document is altered, counterfeit, or expired, or where a passenger is an imposter,

to the extent that a reasonable person should be able to identify the deficiency, a carrier is

required to refuse boarding as a matter of reasonable diligence.

(4) In denying reconsideration, the Board of Immigration Appeals reaffirms its decision that,

in fine proceedings, the reasonable diligence standard is applied both to the determination of

whether a passenger is an alien and to the adequacy of the carrier’s examination of the passenger’s documents.

FOR CARRIER: Constance O’Keefe, Esquire, Washington, D.C.

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: David M. Dixon, Chief

Appellate Counsel

BEFORE THE BOARD

(February 18, 1997)

BEFORE: Board Panel: HOLMES, HURWITZ, and VILLAGELIU, Board Members.

HURWITZ, Board Member:

In a decision dated December 10, 1991, the director of the National Fines

Office (“director”) imposed administrative fines totaling $3,000 for one violation of section 273(a) of the Immigration and Nationality Act, 8 U.S.C.

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§ 1323(a) (Supp. III 1991), and denied a request from the carrier for remission of the fine. The carrier has appealed. The appeal will be sustained.

I. BACKGROUND

The carrier brought a passenger to the United States from Brazil on September 3, 1991. On September 11, 1991, the director issued a Notice of Intention to Fine Under Immigration and Nationality Act (Form I-79), in which he

alleged that the carrier violated section 273 of the Act by bringing the alien

passenger to the United States without a visa, and therefore that the carrier is

liable for an administrative fine in the amount of $3,000.

In a response dated November 27, 1991, the carrier requested remission of

the fine pursuant to section 273(c) of the Act. According to the carrier, the

alien involved arrived in Los Angeles on Flight RG830 on September 3,

1991. The alien initially boarded a flight from Lagos, Nigeria, on September

2, 1991. His ticket reflects a final destination of Los Angeles with a connecting flight in Rio de Janeiro and a return flight with an open date from Los

Angeles to Rio de Janiero. The carrier claims that upon boarding the flight in

Rio de Janiero, the alien presented a Dutch passport reflecting birth in Nairobi, Kenya. The carrier further claims that, based on the alien’s presentation

of a Dutch passport and his possession of a round trip ticket, its agents

believed that the alien satisfied the requirements for the Visa Waiver Pilot

Program under section 217 of the Act, 8 U.S.C. § 1187 (Supp. III 1991), and

gave the alien a Form I-791 (Visa Waiver Pilot Program Information Form)

to complete and sign. The carrier further asserts that as a further precaution

the Flight 830 purser held the alien’s passport during the flight. The carrier

states that when the flight arrived in Los Angeles, its agent discovered that

the alien had not signed the Form I-791. When the alien continued to refuse to

sign the Form I-791, the carrier’s agent presented the documents unsigned to

the Immigration and Naturalization Service, and the alien applied for admission on this basis. Upon careful inspection by the Service officer, it was

determined that the passport was counterfeit.

A copy of some pages of the alien’s Dutch passport, his ticket, and the

unsigned Form I-791 are included in the record. The alien’s ticket reflects

that it is annotated with the passport number from the Dutch passport. The

record also contains what the carrier describes as a telex, apparently from its

agent involved in this incident in Los Angeles. This telex states that both the

agent and the Service inspector tried to explain the meaning of the form, but

that the alien was reluctant to sign due to the preclusion stated in the document against the performance of skilled or unskilled labor and the alien’s

mistaken belief that such would prevent his business activities in Los

Angeles. The Airport Fines Detection Record (Form NFO-1) reflects that the

passenger refused to sign the Form I-791.

In its request for remission the carrier asserted that it could not know by

the exercise of reasonable diligence that the alien would refuse to sign the

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Form I-791 or that the passport was counterfeit. Concerning its first claim,

the carrier maintains that, under the regulation in effect at that time, the carrier was not under an obligation to have the alien complete and sign the Form

I-791 prior to boarding. Regarding its second claim, the carrier asserts that its

agents are trained to detect false passports but cannot be held to the level of

expertise possessed by the Service.

In a decision dated December 10, 1991, the director denied the carrier’s

request for remission under section 273(c) of the Act. The director acknowledged that the record reflects that the alien refused to sign the Form I-791.

The director stated in his decision that “the sole issue to be decided is whether

the carrier did exercise reasonable diligence in determining the alienage and

visa requirements for this alien passenger prior to departure from the last foreign port outside the United States.” He concluded that the carrier “has failed

to provide sufficient evidence to support such a finding.”

II. SECTION 273 OF THE ACT

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 a valid passport

and an unexpired visa, if a visa was required under this Act or regulations

issued thereunder.” Under section 273(a) of the Act the carrier who brings

aliens to the United States becomes, in effect, an insurer that the aliens have

met the visa requirements of the Act. Matter of Scandinavian Airlines Flight

#SK 911, 20 I&N Dec. 306 (BIA 1991). Any bringing to the United States of

an alien who does not meet those requirements incurs fine liability. Matter of

M/V “Emma”, 18 I&N Dec. 40 (BIA 1981).

Section 273(c) of the Act provides that a fine under section 273(a) of the

Act “shall not be remitted or refunded, unless it appears to the satisfaction of

the Attorney General that such person, and the owner, master, commanding

officer, agent, charterer, and consignee of the vessel or aircraft, prior to the

departure of the vessel or aircraft from the last port outside the United States,

did not know, and could not have ascertained by the exercise of reasonable

diligence, that the individual transported was an alien and that a valid passport or visa was required.” What constitutes “reasonable diligence” varies

according to the circumstances of the case. Matter of S.S. “Florida”, 3 I&N

Dec. 111 (BIA 1947; A.G. 1948).

III. ISSUES PRESENTED

On appeal the carrier asserts that it exercised reasonable diligence. It notes

that the alien’s ticket was annotated with the number of the Dutch passport

that the alien used in boarding the plane and maintains that its agents therefore verified the alien’s documents to ensure that he was a Dutch citizen. The

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carrier contends that it could not have discovered by reasonable diligence

that such passport was fraudulent.

It further asserts that the alien appeared to meet the requirements for the

Visa Waiver Pilot Program and that its employees acted properly in boarding

the alien under that program. In this regard, the carrier cites the requirements

in 8 C.F.R. § 217.6 (1991) and maintains that its conduct satisfied those

requirements. In particular, the carrier asserts that these regulations in effect

at the time of the incident in question provided that such program was available to an alien who was a national of one of the countries specified in the

regulations and was in possession of a valid passport issued by such country;

who was in possession of a completed and signed Form I-791 prior to inspection; who sought admission to the United States for 90 days or less; who was

in possession of round trip, nontransferable passage valid for 1 year; who

agreed that the return portion of such passage may be used to effect removal

from the United States based upon a finding of excludability or deportability;

and who appeared otherwise admissible. The carrier asserts that the alien in

this case satisfied these requirements and thus was properly boarded by its

agents. The carrier further states that it had no obligation to require that the

alien sign the Form I-791 prior to boarding, as the regulation in effect at the

time required only that it ensure that the Form I-791 was completed and

signed by the alien prior to inspection. 8 C.F.R. § 217.6(b)(2)(vi). On these

facts the carrier contends that it exercised reasonable diligence.

For its part, the Service maintains on appeal that the standard of reasonable diligence is relevant only to the determination of whether the passenger

is an alien and whether an entry document was required. Thus, the Service

asserts that, once the carrier determines that the passenger is an alien who

needs a visa or other entry document, it is absolutely liable if such passenger

is without a valid visa. In support of its interpretation the Service cites Matter

of S.S. “Florida”, supra, where it was held that the carrier was not liable, as

the carrier, despite reasonable diligence, incorrectly believed that the alien

was a United States citizen. The Service acknowledges that in other Board

decisions such as Matter of Swissair “Flight #164", 15 I&N Dec. 111 (BIA

1974); Matter of M/V “Emma”, supra; and Matter of Scandinavian Airlines

“Flight #SK 911", supra, the Board discussed the reasonable diligence

requirement in cases not involving a question of the carrier’s belief that the

alien was a United States citizen. The Service maintains, however, that this

discussion was dicta, as reasonable diligence was found not to be present.

Finally the Service argues that its interpretation is correct, as Congress

recently enacted section 273(e) of the Act, which provides for mitigation

of fines imposed under section 273 of the Act.1 The Service contends that

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1 Section 273(e) provides:

A fine under this section may be reduced, refunded, or waived under such regulations as

the Attorney General shall prescribe in cases in which–
section 273(c) of the Act would be superfluous in light of section 273(e)

under the carrier’s interpretation. It maintains that such enactment of section

273(e) of the Act supports its interpretation that section 273(c) was not sufficient to ameliorate the harsh effect of section 273(a), as section 273(c) is

available only in the narrow circumstance found in Matter of S.S. “Florida”,

supra, where a reasonable basis exists that the passenger was a United States

citizen.

IV. DISCUSSION

In the present case, we find that the record clearly establishes that the passenger here was an alien who needed a valid visa to enter the United States

and was not in possession of one. The record reflects that the alien possessed

a fraudulent Dutch passport and no document to enter this country. The carrier has therefore violated section 273(a) of the Act.

We also find that our inquiry does not end there, however, as we reject the

Service interpretation that section 273(c) of the Act has no applicability once

it is established that the passenger is an alien who needs a visa or other entry

document. As an initial matter, we note that the Service has set forth this

argument for the first time on appeal, and it was not the basis for the director’s decision presently on appeal to the Board. The record shows that in his

decision the director applied the reasonable diligence standard to not only the

carrier’s actions in determining if the passenger was an alien, but also to its

review of the adequacy of the alien’s documents. Our role is to review for

adequacy and legal correctness the director’s December 10, 1991, decision,

not an after-the-fact rationale. However, we will address the Service’s argument in this case because it presents a legal issue of substantial significance

and is based in part on the legal effect of a statute, section 273(e) of the Act,

which was not in existence at the time of the director’s original decision.

Initially we note that over the years section 273(c) of the Act has been

interpreted as applying the reasonable diligence standard to both the determination of whether the passenger was an alien, as well as the adequacy of the

carrier’s examination of the passenger’s documents. Our review of the cases

cited by the Service interpreting section 273(c) of the Act over the years

reveals that none of these cases links strict liability and remission. Rather, the

cases have consistently held that determinations of whether carriers meet the

reasonable diligence standard, and are thus eligible for remission or refund of

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(1) the carrier demonstrates that it had screened all passengers on the vessel or aircraft in

accordance with procedures prescribed by the Attorney General, or

(2) circumstances exist that the Attorney General determines would justify such

reduction, refund, or waiver.

Subsection (e) was added by section 209(a)(6) of the Immigration and Nationality

Technical Corrections Act of 1994, Pub. L. No. 103-416, 108 Stat. 4305, 4312 (enacted Oct. 25,

1994).
fines, are to be made on a case-by-case basis. Each holds that reasonable diligence, and thus eligibility for remission of fines, is to be determined on the

basis of the carrier’s actions at the last boarding station. These cases do not

base judgments of reasonable diligence, without more, on whether or not the

passengers had the proper documents in their possession upon arrival in the

United States. In the most recent case, Matter of Scandinavian Airlines

“Flight #SK 911”, supra, the Board discussed the applicability of section

273(c) of the Act, but concluded that remission was not warranted, as reasonable diligence had not been shown by the carrier. This conclusion is consistent with precedent and reaffirms our holdings over the years that, under the

appropriate facts, remission is available, even in cases not involving a claim

to United States citizenship by a passenger. We note that in his decision dated

December 12, 1991, the director relied on this precedent and clearly applied

the reasonable diligence standard “in determining the alienage and visa

requirements for this alien passenger.”

We also reject the Service argument that enactment of section 273(e) of

the Act supports its interpretation. In this regard we note that section 273(e)

of the Act deals not only with remission of the fine, but also with reduction of

the fine, which is different from remission. We further note that under section

273(c) of the Act the focus is on whether the carrier acted with reasonable diligence. Under section 273(e) of the Act the focus is on whether the carrier can

demonstrate that it screened all passengers on the vessel or aircraft in accordance with procedures established by the Attorney General, or that circumstances exist that the Attorney General determines would justify such

reduction, refund, or waiver. See 61 Fed. Reg. 29,323 (1996) (to be codified

at 8 C.F.R. § 273) (proposed June 10, 1996).

On appeal the carrier asserts that it has demonstrated reasonable diligence

in its boarding of the passenger for whom it has been assessed a fine. We find

that, in a determination of reasonable diligence under section 273(c) of the

Act, the carrier must show that it has established adequate procedures to

ensure that all of its passengers’ travel documents have been inspected prior to

boarding so that only those with valid passports and visas are permitted to

board. The procedures established by the carrier to satisfy this obligation must

be consistent with the applicable statutes and regulations. Where a document

is altered, counterfeit, or expired, or where a passenger is an impostor, to the

extent that a reasonable person should be able to identify the deficiency, a

carrier is required to refuse boarding as a matter of reasonable diligence.

We further find that, before remission will be granted, the carrier must

also demonstrate that the procedures established have been carefully and

accurately executed by the carrier’s staff.

Finally, we find that the carrier must demonstrate by a preponderance of

the evidence that it has complied with these above-stated requirements.

In the present case, we find that the carrier has established it exercised reasonable diligence in its handling of the alien. The record reflects that the

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passenger presented a Dutch passport and that such passport relates to the

alien in this case. The record also shows that the carrier’s agents inspected

that passport before allowing the alien to board, as the alien’s ticket shows

that it is annotated with the passport number. The fact that the passport was

fraudulent does not, in this case, present an obstacle to remission. The evidence submitted shows that the passport appears legitimate. Most significantly, upon the alien’s arrival the Service inspector at first attempted to

convince him to sign the Form I-791, an unlikely circumstance if the passport

were obviously fraudulent.2 In this case, we find that the record establishes

that after reasonable investigation, the carrier had reasonable grounds to

believe the document was true and in fact did so believe.

We further find that the carrier acted with reasonable diligence in fulfilling

its requirements under the Visa Waiver Pilot Program. At the outset we find

that the relevant regulatory provision is not, as the Service claims, 8 C.F.R.

§ 217.2, which relates to eligibility of aliens for such program. Rather, the

relevant provision is 8 C.F.R. § 217.6, which involves the carrier’s obligations under this program.

Concerning these requirements, the only one which the Service maintains

was not satisfied in this case involves the requirement that the alien be in possession of a completed and signed Form I-791 at time of inspection. On this

issue, the Service maintains that for reasonable diligence to be established,

the carrier must have the alien complete and sign the Form I-791 prior to

boarding. We reject this interpretation. In this regard we note that a proposed

revision to 8 C.F.R. § 217.6 was drafted, which required that carriers ensure

that the Visa Waiver Pilot Program Information Form be completed and

signed by the alien prior to boarding the aircraft. 56 Fed. Reg. 21,102 (1991)

(to have been codified at 8 C.F.R. § 217.6(b)(2)(vi)) (proposed May 7, 1991).

When the final rule was published in 56 Fed. Reg. 32,952 (July 18, 1991),

8 C.F.R § 217.6(b)(2)(vi) stated that the carrier agrees to “ensure that the

[Form I-791] is completed and signed by the alien prior to inspection.” Insofar as the Service itself rejected the proposal that such form be signed and

completed prior to boarding, we are not willing to hold the carrier to such

standard for purposes of reasonable diligence.

In our consideration of whether the carrier acted with reasonable diligence

in its obligations under the Visa Waiver Pilot Program, we find that it has

done so. The record reflects that the alien was provided the Form I-791 at

time of boarding and that he had completed, but not signed, such form by the

time he was presented for inspection. The record further shows that he was

unwilling to sign the form on account of his belief that, because he claimed to

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2 We note that under the theory of strict liability advanced by the Service on appeal, even if

the alien passenger had signed the Form I-791 and had been admitted with a passport that

passed Service scrutiny during inspection, the carrier would still be liable for a fine if at some

subsequent point a documents examiner recognized the passport as a skillful fraud.
be a business visitor, he would be precluded from fulfilling the purpose of his

visit if he signed the form, which prohibited the performance of skilled or

unskilled labor. The record reflects that the carrier’s agent tried to explain

that the signing of the form was no impediment. The record also reflects that

Service personnel also tried unsuccessfully to have the alien sign the Form

I-791. Although we recognize that the term “ensure” is not anywhere defined

in the regulation, we find that in the circumstances here, where the form was

completed by the alien by the time of inspection but not signed due to the

alien’s reluctance regarding one issue, the carrier has met its burden.

ORDER: The appeal is sustained and the fine is remitted.

BEFORE THE BOARD

(October 22, 1997)

FOR CARRIER: Constance O’Keefe, Esquire, Washington, D.C.

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Scott M. Rosen, Appellate Counsel

BEFORE: Board Panel: HOLMES, HURWITZ, and VILLAGELIU, Board Members.

HURWITZ, Board Member:

The Immigration and Naturalization Service has timely moved for reconsideration of our decision on February 18, 1997, in Matter of Varig Brazilian

Airlines “Flight No. 830”, 21 I&N Dec. 744 (BIA 1997). The motion will be

denied.

In our prior decision, we granted remission of a fine under section 273(c)

of the Immigration and Nationality Act, 8 U.S.C. § 1323(c) (Supp. III 1991),

to a carrier that brought to the United States a passenger who presented a

fraudulent passport in an attempt to gain admission to this country. In so

holding, we rejected the Service’s argument that the reasonable diligence

standard of section 273(c) of the Act is relevant only in ascertaining whether

a passenger is an alien who is required to have a visa or other entry document.

The Service asserted that once the carrier ascertains that a passenger is an

alien, the carrier is strictly liable for the fine if the alien does not have a valid

entry document. We held, however, that the reasonable diligence standard of

section 273(c) of the Act is applied both to the determination of whether the

passenger was an alien and to the adequacy of the carrier’s examination of the

passenger’s documents. We also rejected the Service’s argument that enactment of section 273(e) of the Act, which provides for reduction, refunding, or

waiving of a fine, supports its contention regarding the limited applicability

of section 273(c) of the Act.

In its motion the Service again maintains that the reasonable diligence

standard of section 273(c) of the Act is relevant only to the determination of

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whether the passenger is an alien who needs a visa or other entry document,

and does not concern the adequacy of the carrier’s procedures regarding

examination of the passenger’s documents. It reiterates that the discussion of

reasonable diligence relating to the adequacy of the carrier’s inspection procedures of passengers’ documents in cases such as Matter of Scandinavian

Airlines Flight #SK 911, 20 I&N Dec. 306 (BIA 1991); Matter of “M/V

Emma”, 18 I&N Dec. 40 (BIA 1981); and Matter of SwissAirlines “Flight

#164”, 15 I&N Dec. 111 (BIA 1974), was incorrect dicta.

In our review we find that the Service has only reiterated its arguments on

this issue and that these arguments were previously considered and rejected

in Matter of Varig Brazilian Airlines “Flight No. 830”, supra. In that decision we surveyed the relevant case law to arrive at our holding. The discussion of reasonable diligence in those cases regarding the carrier’s

examination of passengers’ documents is not mere dicta. These cases presented a lengthy analysis of that issue, although they concluded that the carriers in those cases had not met their burden. If, in those cases, the carrier was

not eligible for remission, as the Service contends, such detailed discussion

would, in fact, be superfluous. We are unwilling to find that on numerous

occasions the parties would have needlessly addressed an issue that was not

pertinent and that on multiple occasions the Board would have unnecessarily

examined an irrelevant issue. We also note that even on reconsideration the

Service has presented no evidence that the interpretation of law it advances in

the motion was ever its interpretation in the past, and, indeed, such interpretation was not the basis on which its National Fines Office adjudicated this

case.

The Service also contends that our interpretation violates the plain meaning of the statute, but it has not provided support, such as legislative history,

that its interpretation of the “plain meaning” is correct. On this issue the Service has cited only generalized principles of statutory construction which are

not enlightening in this determination.

In its motion the Service also maintains that the recent enactment of section 273(e) of the Act supports its interpretation of section 273(c). The Service concedes that the Board, in its original February 18, 1997, decision,

considered these same arguments and found them to be without merit. We

again reject them. Specifically, the Service claims that under the Board’s

interpretation of section 273(c) of the Act, section 273(e) is superfluous. We

cannot accept such a claim. It certainly can be imagined that cases may arise

which do not satisfy the reasonable diligence standard of section 273(c) but

may require a reduction of the fine because the carrier may have complied

with some of the screening procedures prescribed by the Attorney General, or

the Attorney General may find that circumstances exist which would justify a

reduction of the fine.

In our review we find nothing in our February 8, 1997, decision which is

inconsistent with our prior published holdings. Indeed, we find that such

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prior precedent decisions articulated the principle that the reasonable diligence standard is applied both to the determination of whether the passenger

was an alien and to the adequacy of the carrier’s examination of the passenger’s documents. We find that the Service’s present motion has not set forth

any errors in fact or law concerning our previous ruling in this case, nor has

the Service pointed out anything that has been overlooked. Accordingly, we

shall deny the motion.

ORDER: The motion is denied.

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