MATTER OF CANADIAN PACIFIC AIRLINE

In FINE Proceedings

500-2093-4

Decided by Board Docontbor 17, 1957

Fines—Section 273 of 1952 act—Signatory carrier (sec. 238 of 1952 act) exemptfrom fine liability for transporting natives of contiguous territory or returning residents inadmissible on documentary grounds.

No fine lies under section 273 of the 1952 act against a carrier signatory to an Overseas Agreement pursuant to section 238 of the act for transporting to Canada, destined to the United States, alien passengers who are returningresidents or natives of contiguous territory inadmissible solely on documentary grounds. tut. 4 I. & D. Dec. ∎ FiD; 1. & N. Dec. 3 2 D.)

13Asts FOR FINES: A ct of 1952—Section 273 (8 U.S.C. 1323) .

DEFORE TIID BOARD

Discussion : These appeals in administrative fine proceedings aredirected to penalties of $1,000 each ordered imposed on this Canadian common carrier for bringing to Canada on July 27, and August 6, 1956, respectively, from Europe, alien passengers G P—C--- and A J W who were ultimately destined to,
but limited asaunents valid fur admission into, the United Staten. Both alien passengers were Canadian nationals (one native-born) who had previously been lawfully admitted to the United States for permanent residence. They were returning via Canada, after visiting in Europe. Both lacked documents valid for admission to this country (former 8 CFR 211.2). Both had Alien Registration Receipt Cards, Form I-151, which at the date of applications for admission were not valid reentry documents after a European trip. The facts in relation to the fine for transporting A I W----are as follows: The passenger is a native of England, who was admitted to the United states for permanent residence on August 6,1950. She purchased a round-trip air ticket in Santa. Barbara, California, for travel to Amsterdam, Holland, and return to California. She was routed via United Air Lines from Los Angeles, California, to Vancouver, B.C., and thence to Amsterdam, Holland, via Canadian Pacific Air Lines. Return passage was a reverse of this. Thispassenger was manifested for the United States by Canadian Pacific Air Lines both on the United States manifest and on the general manifest covering all passengers on the flight. In this 

### case, the record shows the passenger used Canada solely and exclusively as

a means fn travel flunk Holland to California.The record reveals the following situation concerning the transportation of G P—C--- via Canadian Pacific Air Lines. This passenger, a native of Canada, was permanently admitted to the United States on March 12,1956. Transportation was purchased in White Rock, B.C., for a trip from Vancouver to Norway and Holland returning to Vancouver. The passenger's family lives 

### in White Rock, B.C. Upon return to Vancouver after the European trip, it was her intention to visit in Canada for a few days before returning to the United States. The passenger was on a Canadian Pacific 

### Air Lines manifest for United States passengers. The issue is whether the Overseas Agreement, to which Canadian Pacific Air Lines subscribes, requires the imposition of a penalty inthese cases. Stated broadly, the agreement imposes on transportation agencies bringing aliens destined to the United States viaCanada, the same responsibility as if the agency brought the passenger directly to a 'United Stuteq port. Because Canadian transportation agencies by Canadian law are required to transport to Canada any Canadian citizen requestingsuch transportation, it has been held that where such transportation takes place even if the passenger is ultimately destined to the United States, a penalty for violation of our immigration laws will
not be incurred (Matter of Tel Plane CF TFF 206, F-0109-19,

4 I. & N. Dec. 689). However, if Canada is used solely and exclusively as a means for reaching the United States, this exception has no application for the reason that Canadian law is interested inthe transportation of Canadian eitizonn to Canada and Imo no interest in the transportation of Canadian citizens to the United States (Matter of CPA Plane Flight 301, 

### 500

- 

### 2026, 7 I. & N. Dec. 329). On these holdings, there would be a fine for the transportation of A J—W , but no this in the case of G P C - Miss C was clearly destined to Canada to visit relatives. Miss W—'s interest in Canada was solely as a means of reaching the
United States. The initial provision of law which was the basis for the first Canadian Overseas Agreement was found in section 

### 23 of the Immigration act of 1911' (6 102, 1940 ed.), and is as follows:
Provided further, That in prescribing rules and making contracts forthe entry and inspection of aliens applying for admission from or through foreign contiguous territory, due care shall be exercised to avoid any discriminatory action in favor of foreign transportation companies transpbrting to such territory aliens destined to the United States, and all such transportation

563713-61-companies shall be required, as a condition precedent to the inspection or examination under such rules and contracts at the ports of such contiguous territory of aliens brought thereto by them, to submit to and comply with all the reauirements of this Act which would study won

,they bringing mrh nliano directly to seaports of the United States, and, from and after the taking effect of this Act, no alien applying for admission from foreign contiguous territory shall be permitted to enter the United States unless upon proving that he was brought to such territory by a transportation company which had submitted to and complied with all the requirements of this Act or that he entered, or hasresided in, such territory more than two years prior to the date of his application for admission to the United States.
The Immigration Act of 1924 contained a provision in section 17 (8 U.S.C. 217, 1940 ed.) almost the same as the one in the 1917act. In the 1924 act an exception to the two-year bar to readmission was made in favor of aliens lawfully admitted to the United States returning from a temporary visit from contiguous territory.The reasons for these provisions of law were to put transportation lines going into contiguous territory on a parity with those coming directly to United States ports in regard to the transportationof aliens destined to the United States, and to help prevent contiguous territory from being used as A. means of gaining entry into

, the United States by aliens desiring to come to this country but 

### who could not obtain passage directly to a United States port because not qualified for admission. In current law, the provisions which are the basis of the existing Overseas Agreement and which are substantially the same as in the earlier laws are contained in section 238 (a), (b), and (c) of the Immigration and Nationality Act (8 U.S.C. 1228, 1952 ed.). Theprovision in the new law for the exclusion of aliens brought to contiguous territory by transportation agencies who have not entered into a contract as provided in section 255 is found in section 012
(i) (24) of the Immigration and Nationality Act (8 U.S.C. 

### 1182 (a) (24), 1952 ed.). This subsection carries forward the two-year bar on the admission of aliens not brought to contiguous territory bycomplying transportation agencies, but makes an exception of importance in considering the cases now before us. The present law exempts from the two-year bar aliens who are natives of Western Hemisphere countries (with a minor exception not material to the consideration of these cases) and returning residents. Although section 238 of the Immigration and Nationality Act is broad enough to cover natives of Western Hemisphere countries and returning residents, it is argued that as Congress has seen fit to exempt these two classes from the two-year exclusion bar, Congress was not concerned with their transportation to contiguous territory 

### and, hence, penalty should not be imposed for transporting such
aliens from overseas to Canada.



### 10In the Service argument before the Board, it was stated that the reasons which gave rise to this provision of law in 1917, today donot exist. Because of changes in Canadian law, and other circumstances, no longer is it profitable for a European alien whose ultimate destination is the

- United States to use Canada as a means of obtaining that end. The Service specifically urged the Board to adopt the position that under the Overseas Agreement carriers areexempt from liability as to natives of contiguous territory and returning residents who are inadmissible solely because of documentary requirements. In view of this background, we are asked to construe !existing law liberally toward carriera. The change in the 1952 actexempting from the two-year exclusion bar aliens described in section 101(a) (27) (C) (8 U.S.C. 1101, 1952 ed.), that is, aliens 

## who

are natives of Wectern Hemisphere. countries, and aliens described in section 101(a) (27) (B) (8 U.S.C. 1101), that is, aliens returning to the United States after a temporary visit abroad, gives a basis for concluding that as to them, Congress no longer felt the contractual obligation assumed by carriers under section 238 of the Immigrationand Nationality Act should apply. No legislative comments concerned with this change in the Immigration and Nationality 

## Act have been found. in light of all the circumstances connected with this problem, we feel this is a reasonable conclusion and we adopt 

## it. Order: It is ordered that the appeals be sustained and that the fine he not imposed.

11