Interim Decision #2883 

MATTER OF M/V "RUNAWAY" 

In Fin'e Proceedings 

MIA 10/12.12 

Decided by Board October 2, 1981 

(1) Section 273(a) of the Immigration and Nationality Act, 8 U.S.C. 1323(a), in effect, 

makes the carrier of aliens an insurer that his passengers have met the visa requirements of the Act. 

(2) Cuban nationals who came to the 'United States in the "Freedom Flotilla" of 1980 

without first having filed Form 1-590 (Registration for Classification as a Refugee) and 

having received approval for admission as refugees under section 207 of the Act, 8 

U.S.C. 1157, are not exempt from the Act's visa requirements by virtue of the provisions 

of the Refugee Act of 1980. 

(3) Since liability for fines under section 273(a) of the Act is determined as of the time the 

aliens are brought to the United States, it does not mutter whether the aliens are subsequently admitted to the United States by the Attorney General. 

(4) Reasonable diligence within the meaning of the remission provisions of section 273(e) 

of the Act is not established by carrier's statement that he relied on a presider tial 

"open hearts and open ants" speech in deciding to go to Cuba where the evidence shows 

that he departed 'for Cuba prior to the speech and where the presidential speech cannot be reasonably construed as a -waiver of visa requirements or as authority for 

bringing undocumented aliens to the United States. 

(5) Reasonable diligence within the meaning of the remission provisions of section 273(c) 

of the Act is not established where the evidence does not support carrier's allegation 

that he believed that the visa requirements were waived under the Refugee Act of 1980. 

(6) Reasonable diligence within the meaning of the remission provisions of section 273(c) 

of the Act is not established where carrier's only evidence in support of his contention 

that he relied on announcements of the Immigration and Naturalization Service and other 

federal agencies in deciding to go to Cuba was an affidavit which was factually insufficient 

and, therefore, not credible. 

In re: M/V "Runaway", which arrived at Key West, Florida, from Cuba on May 14, 1980. 

Alien passengers involved: Tapia Martin Villa, Demegret Maria Sanchez, Dupeiron 

Gerardo Morejon, Gonzalez Quiniana, Campan Armando Ibarra, Moreno Leonaldo 

Moreno, et al. 

BASIS FOR FINE: Act of 1952-Sec. 273 18 U.S.C. 13231—Bringing to the United States 

immigrants not in possession of unexpired visas 

ON BEHALF OF CARRIER: Leonard F. Mikul, Esquire 

Mikul & Mikul 

403 Whitehead Street 

Key West, Florida 33040 

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Br MilhoIlan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members 

On February 2, 1981, the District Director in Miami imposed administrative fines totalling $5,000 upon Russell K. Sprague, captain/owner of 

the MTV Runaway (hereafter referenced as the "carrier"), for five violations of section 273(a) of the Immigration and Nationality Act, 8 U.S.C. 

1323(a). The District Director also determined that the carrier had not 

met the requirements for remission of the fines. The carrier has appealed. 

The appeal will be dismissed. 

The record reflects that the carrier departed from the United States 

on or about April 25, 1980, bound for Cuba for the purpose of picking up 

five Cuban nationals and returning with them to the United States. It 

further reflects that the carrier returned from Cuba to Key West, 

Florida, on May 14, 1980, with twelve alien passengers, two of whom he 

had (intended to pick up and ten of whom were allegedly forced upon his 

boat by Cuban authorities. None of the twelve aliens was in possession 

of a valid unexpired visa or other entry document. A Notice of Intention 

to Fine was served upon the carrier upon his arrival in Key West. The 

carrier filed a written defense with affidavits and appeared for a personal interview on September 26, 1980. An immigration officer found 

the carrier subject to fines under section 273 of the Act for twelve 

violations. However, he recommended that the District Director exercise his prosectitorial discretion and impose the statutory $1,000 per 

alien fine only with respect to five of the twelve aliens on the theory that 

the carrier should be fined only for the number of aliens he had originally intended to bring to the United States. The District Director 

accepted that recommendation. 

The statute under which the fines were imposed in this case is clear. 

Section 273(a) of the Act provides: "It shall be unlawful for any person . . 

bring to the United States from any place outside thereof . . . any 

alien who does not have an unexpired visa, if a visa was re mired under 

this Act or regulations issued thereunder." Section 273(b) provides that 

the fine for each violation of subsection (a) shall be $1,000. Section 273(c) 

provides: "Such sums shall not be remitted or refunded, unless it appears 

to the satisfaction of the Attorney General that such person . . . prior to 

departure of the vessel or aircraft from the last port outside of 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 visa was required." 

We have held that section 273(a), in effect, makes the carrier of aliens 

an insurer that his passengers have met the visa requirements of the 

Act and that any bringing to the United States of an alien who dues nut. 

meet these requirements incurs liability. Matter of M/17 "Emma", 18 

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I&N Dec. 40 (BIA 1981); Matter of Swissair, "Flight #164", 15 I&N 

Dec. 1 (BIA 1974). We have also noted that there is no provision for 

mitigation of such fines. However, section 273(c) permits remission 

(forgiveness in full) in one circumstance; where it appears that prior to 

the alien's departure fiom the last port outside the United States, the 

carrier did not know, and couldi not have ascertained by the exercise of 

reasonable diligence, that the individual transported was an alien or 

that a visa was required. What constitutes "reasonable diligence" varies 

according to the circumstances of the case. Matter of S.S. "Florida", 3 

I&N Dec. 1 (BIA 1947, 1948; A.G. 1948). 

The carrier contends that he is not liable for fines under section 273 of 

the Act because his passengers were refugees and the visa requirements for refugees are waived by the Refugee Act of 1980. He also 

argues that he is not liable for the fines because he was coerced by the 

Cuban government into bringing ten of the twelve aliens to the United 

States. Finally, the carrier contends that he is entitled to have the fines 

remitted because he has established that he exercised reasonable diligence under section 273(e) of the Act. 

A brief review of the current statutory and regulatory provisions 

governing the admission of refugees will be helpful in understanding the 

carrier's first argument. In the Refugee Act of 1980, 1Congress provided two forms of relief for a limited number of aliens who could meet 

the definition of "refugee" set forth in section 101(a)(42) of the Act. 

Section 207 of the Act,' among other things, provides that the Attorney 

General may, in his discretion and pursuant to such regulations as he 

may prescribe, admit certain refugees to the United States. Section 208 

Public Law 96-212, 94 Stat. 102 (effective March 17, 1980). References to sections of 

the Act refer to the Immigration and Nationality Act as amended by the Refugee Act of 

1980. 

Section 207 of the Act provides: 

(a)(1) Except as provided in subsection (b), the number of refugees who may be admitted under this section In fiscal year 1980, 1981, or 1982. may not exceed fifty thousand 

unless the President determines, before the beginning of the fiscal year and after 

appropriate consultation (as defined in subsection (e)), that admission of a specific 

number of refugees in excess of such number is justified by humanitarian concerns or is 

otherwise in the national interest . 

(c)(1) Subject to the numerical limitations established pursuant to sections (a) and (b), 

the Attorney General may, in the Attorney General's discretion and pursuant to such 

regulations as the Attorney General may prescribe, admit any refugee who is not 

firmly resettled in any foreign country, is determined to be of special humanitarian 

concern to the United States, and is admissible (except as otherwise provided under 

paragraph (3)) as an immigrant under this Act.(Emphasis added.) ... 

W(2) The provisions of paragraphs (14), (15), (20) . . . of section 212(a) shall not be 

applicable to any alien seeking admission to the United States under this subsection, 

and the Attorney General may waive any other provision of such section . . . . 

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of the Ace permits the Attorney General, in his discretion, to grant 

asylum to refugees who are "physically present in the United States_ . . ." 

The regulations4implementing section 207 of the Act provide that 

admission to the United States as a refugee may be sought by "filing 

Form 1-590 (Registration for Classification as a Refugee) with the overseas Immigration and Naturalization Service officer in charge responsible for the area where the applicant is located . . . ." 8 C.F.R. 207.1. 

8 C.F.R. 207.2 provides for the processing of the application and section 

207.4 provides that the approval of an application by an officer in charge 

outside the United States authorizes the District Director of the port of 

entry to conditionally admit the applicant as a refugee upon his or her 

arrival at such port within 4 months after the date of approval of the 

Form 1-590_ It. also specifies that there is no appeal from the denial of 

refugee status. 

The carrier's first argument is that he is not liable for fines under 

section 273 because his passengers were not required to have visas 

because they were refugees. He contends that the requirement for a 

refugee to have a visa is waived by sections 207(c)(3) and 211(c) of the 

Act. With regard to the first of these sections, the carrier reasons that 

the visa requirement of section 212(a)(20) 5is not applicable to his passengers because they are "seeking admission to the United Staten" as refugees within the meaning of section 207(c)(3) of the Act.'. 

The error of the carrier's reasoning is that section 207 is not applicable in this ease. There is no provision in the Act or the regulations 

promulgated thereunder which authorizes an alien physically present in 

the United States to seek admission under section 207. On the contrary, 

the regulations provide that an application for admission as a refugee 

must be filed with an Immigration and Naturalization Service officer in 

3Section 208 of the Act provides: 

The Attorney Genet-al shall establish a procedure for an alien physically present in the 

United States or at a land border or port of entry, irrespective of such alien's status, to 

apply for asylum, and the alien may be granted asylum in the discretion of the Attorney 

General if the Attorney General determines that such alien is a refugee within the 

meaning of section 101(a)(42)(A) (Emphasis added.) . . • • 

Interim regulations published on June 2, 1980 (45 Fed. Reg. 37392), effective June 1, 

1980, were made final as amended by final rules published on September 10, 1981 (45 Fed. 

Reg. 45116), effective October 12, 1981. 

5Section 212(a)(20) provides: 

(a) Except as otherwise provided in this Act, the following classes of aliens shall be 

ineligible to receive visas and shall be excluded from admission into the United States: 

(20) Except as otherwise specifically provided in this Act, any immigrant who at the 

time of application for admission is not in possession of a valid unexpired immigrant 

visa, reentry permit,border crossing- identification card, or other valid entry docu 

ment required by this Act . . . . 

Section 207(e)(3) is quoted in note 2, supra. 

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charge overseas. 8 C.F.R. 207.1. Refugees who are "physically present 

in the United States or at a land border or port of entry" may obtain 

refugee status only through the asylum procedure of section 208 of the 

Act. As the carrier's passengers are not "overseas", but have come to 

the United States and have been granted parole, they are physically 

present in the United States within the meaning of section 208 and, 

thus, are ineligible to seek admission as refugees under section 207 of 

the Act. Moreover, we have held that Cuban nationals who came to the 

United States in the "freedom flotilla" to apply for admission as refugees are excludable from the United States under section 212(a)(20) of 

the Act for lack of valid unexpired visas. Matter of Castellcnr, 17 I&N 

Dec. 616 (BIA 1981). Thus, the waiver provisions of section 207(c)(3), 

cited by the carrier, are of no benefit to him. 

The carrier's contention that the visa requirements of section 211(a) 

of the Act are waived for his passengers by section 211(e) 7is also without merit. By its own terms, the visa requirement of section 211(a) is 

inapplicable under section 211(c) only with respect to aliens "whom the 

Attorney General admits to the United States under section 207." There 

is no evidence, or even an allegation, that the Attorney General has 

admitted any of the carrier's passengers to the United States under 

section 207. Therefore, at the time of arrival in the United States, the 

carrier's passengers were required by sections 211(a) and 212(a)(20) to 

have visas for admission into the United States. Furthermore, it matters not for purposes of liability for fines under section 273 of the Act if 

the Attorney General eventually admits the carrier's passengers because 

they were not admissible to the United States at the time he brought 

them here unless they had visas and none of them had visas. Peninsular 

and Occidental Steamship Company v. United States, 242 F.2d 639 (5 

Cir. 1957)• 

In addition to the technical deficiencies in the carrier's argument 

discussed above, there are strong'policy reasons for rejecting it. Carriers were first made liable for bringing to the United States immigrants 

Without visas in the Immigration and Nationality Act of 1924, 43 Stat. 

153. This provision was designed to discourage the bringing to the United 

States of an immigrant8who had not received a visa prior to his or her 

7Section 211 provides: 

(a) Except as provided in subsection (b) and subsection (c) no immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a 

valid unexpired immigrant visa or was born subsequent to the issuance of such visa of 

the accompanying parent . . . . 

. . . • 

(c) The proviaiono of oulassetion (a) shall not apply to an alien whom the Att'orney 

General admits to the United States under section 207. 

This provision was expanded to include nonimmigrants in the Immigration and Nation131 
Interim Decision #2883 

departure for the United States. It is and has been considered an important weapon in the enforcement of our immigration laws. Gordon and 

Rosenfield, Immigration Law and Procedure, Section 9.12 (1979). The 

construction of sections 207(c)(3) and 211(c) of the Act offered by the 

carrier would greatly undermine this enforcement objective. In the broadest sense, it would permit a carrier to circumvent section 273 of the Act 

in any case by simply having his undocumented passengers apply for 

admission to the United States as refugees. In a more limited sense, it 

would permit carriers, whether motivated by humanitarian concerns or 

financial considerations, to bring to the :United States with impunity an 

unlimited number of the world's homeless and/or oppressed people who 

would like to immigrate to the United States as refugees. The carrier's 

construction would thus undermine Congress' effort to limit the number 

of immigrants, including refugees, coming to the United States. This is 

the antithesis of section 273 of the Act and a complete reversal of a 

56-year-old legislative theme. We have examined the legislative history 

of the Refugee Act of 1980 and found no evidence that Congress intended 

these results. 

The carrier's argument that he is not liable for fines under section 273 

because he acted under duress has been rejected by this Board. See 

Matter of "Emma", supra. 

We conclude that as the carrier's passengers had neither visas, nor 

other documents authorized under the regulations for use in lieu of 

visas, the carrier is liable for a fine of $1,000 per alien. As the District 

Director, in the exercise of his prosecutorial discretion, has imposed 

fines for only five of the violations, the carrier is liable for only $5,000. 

The carrier contends that he is entitled to remission of the fines under 

section 273(c) of the Act because he exercised reasonable diligence in 

that, in making his decision to go to Cuba, he relied upon the analysis of 

the Refugee Act of 1980 set forth above, former President Carter's 

"open hearts and open arms" policy, and announcements on several 

occasions by officers of the Coast Guard, United States Customs Service, 

and the Immigration and Naturalization Service that no penalties would 

be imposed if all refugees were brought to specific points in the United 

States.° He argues that under these circumstances, it was reasonable 

for him to conclude that no visas were required of Cuban nationals. 

ality Act of 1952 (Public Law 414, 66 Stat. 166). See Matter of S.S. "Greystroke Castle" 

and MIV "Western Queen". 6 I&N Dec. 112 (I31A 1954; A.G. 1954). 

" We find this carrier to be more blameworthy than he has acknowledged. While the 

United States government was attempting to formulate national policy regarding Cuban 

nationals who wished to seek asylum here, private boat owners. including this carrier 

exploited the void and seized the opportunity to bring to the United States relatives whom 

the United States government may or may not have allowed to come in accordance with . 

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We find that the carrier has not established that he exercised reasonable diligence because his contentions are not supported by evidence in 

the record. For instance, the first time the carrier alleged that he thought 

that the visa requirements of the Act were waived by the Refugee Act 

of 1980 was in counsel's brief on appeal. Such arguments by counsel are 

not evidence. Matter of Ramirt :-Sanchez, 17 1&N Dec. 503 (BIA 1980). 

Further, the fact that the argument was first raised on appeal suggests 

that it was an afterthought developed to justify the carrier's action, 

rather than one of the considerations upon which he decided to act: 

The carrier's contention that he relied upon former President Carter's 

"open hearts and open arms" policy is also not substantiated in this 

record. Former President Carter referred to "open hearts and open 

arms" when addressing the League of Women Voters in Washington, 

D.C., on May 5, 1980. See Weekly Compilation of Presidential Documents, Monday, May 12, 1980, page 834. However, as the carrier left 

the United States for Cuba on April 25, 1980, he conk: not have relied on 

that statement. Further, even if the carrier had heard the statement, 

we still would not find that the carrier exercised reasonable diligence 

because there was nothing in the statement which could reasonably be 

construed as waiving the visa requirements of the Act or authorizing 

this carrier to bring undocumented Cuban nationals to the United States. 

The carrier has also failed to establish that anyone in a position of 

authority advised him that no penalty would be imposed if he brought 

undocumented Cuban nationals to the United States. His affidavit is the 

only evidence in the record relevant to this issue and 41 acks sufficient 

factual allegations to make it credible. It does not allege that anyone 

authorized the carrier personally to bring undocumented Cubans to the 

United States. It does not identify the person or persons who allegedly 

made-the announcements that no penalty would be imposed, and it does 

not :state when, where, or to whom the alleged announcements were 

made. 

Finally, in Matter of MIV "Emma", supra, we held that it was not 

reasonable diligence for a carrier to assume that the government consented to the bringing of undocumented Cubans to the United Stateswithout making any inquiries to determine the legality of this action. 

We note that the obvious place for the carrier to have inquired as to the 

legality of bringing Cuban nationals to the United States was the Immithe law. In this instance, while former President Carter moved pursuant to section 207:of 

the Ad to authorize the lawful admission of some 3,500 Cuban refugees (see 45 Fed. Reg. 

28079 (April 14; 1980)), private boat owners, including this carrier, took it upon themselves to bring to the United States some 125,000 Cuban nationals without regard to those 

aliens* rights, or lack thereof, t.0 come to the United litotes. In no doing, they usurped the 

authority given the AttOrney General by statute. 

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gration and Naturalization Service, the agency charged with responsibility for administering our immigration laws. The carrier has not alleged 

that he made any such inquiry to the Service or anyone else. 

Accordingly, the following order will be entered. 

ORDER: The appeal is dismissed. 

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