United Airlines, Inc. v. Brien

• Decision Date: 20 November 2009
• Docket Number: Docket No. 07-1593-cv(CON).,Docket No. 04-6018-cv(L).,Docket No. 07-0689-cv(CON).
• Parties: UNITED AIRLINES, INC., Air India Limited, Air Espana, British Airways PLC, Cayman Airways, Ltd., Compagnie Nationale Air France, Deutsche Lufthansa AG, El-Al Israel Airlines, Ltd., Finnair Oy, Flugleidir, H.F., Iberia, Lineas Aereas De Espana, S.A., Lauda Air Luftfahrt, A.G., LTU Lufttransport-Unternehemen GmbH & Co., Osterreiche Luftverkehrs, A.G., South African Airways Proprietary, Limited, Virgin Atlantic Airways, Ltd., Air Jamaica Limited, Transportes Areos Portugueses, S.A., North American Airlines, Inc., Singapore Airlines Limited, Plaintiffs-Appellants, v. Una F. BRIEN, Director, U.S. Department of Justice, Immigration and Naturalization Service, National Fines Office, Kevin Rooney, Acting Commissioner, John D. Ashcroft, Attorney General of the United States, U.S. Department of Justice, Paul W. Schmidt, Chairman, James Ziglar, Commissioner, U.S. Department of Justice, Immigration and Naturalization Service, Lori Schialabba, Acting Chairman, U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals, Colin L. Powell, Defendants-Appellees, Michael Jones, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

588 F.3d 158

UNITED AIRLINES, INC., Air India Limited, Air Espana, British Airways PLC, Cayman Airways, Ltd., Compagnie Nationale Air France, Deutsche Lufthansa AG, El-Al Israel Airlines, Ltd., Finnair Oy, Flugleidir, H.F., Iberia, Lineas Aereas De Espana, S.A., Lauda Air Luftfahrt, A.G., LTU Lufttransport-Unternehemen GmbH & Co., Osterreiche Luftverkehrs, A.G., South African Airways Proprietary, Limited, Virgin Atlantic Airways, Ltd., Air Jamaica Limited, Transportes Areos Portugueses, S.A., North American Airlines, Inc., Singapore Airlines Limited, Plaintiffs-Appellants, v. Una F. BRIEN, Director, U.S. Department of Justice, Immigration and Naturalization Service, National Fines Office, Kevin Rooney, Acting Commissioner, John D. Ashcroft, Attorney General of the United States, U.S. Department of Justice, Paul W. Schmidt, Chairman, James Ziglar, Commissioner, U.S. Department of Justice, Immigration and Naturalization Service, Lori Schialabba, Acting Chairman, U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals, Colin L. Powell, Defendants-Appellees, Michael Jones, Defendant.

Docket No. 04-6018-cv(L).

Docket No. 07-0689-cv(CON).

Docket No. 07-1593-cv(CON).

United States Court of Appeals, Second Circuit.

Argued: May 12, 2008.

Decided: November 20, 2009.

Scott Dunn, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, and F. Franklin Amanat, Assistant United States Attorney, on the brief), Brooklyn, NY, for Defendants-Appellees.

Christina Hagan (Jonathan A. Fuchs, on the brief), Hagan, Coury & Associates, Brooklyn, NY, for Plaintiffs-Appellants.

Before: FEINBERG, MINER, and HALL, Circuit Judges.

HALL, Circuit Judge:

This is a consolidated appeal from three final Orders of the United States District Court for the Eastern District of New York (Glasser, J.): (1) Plaintiffs in United Airlines, Inc. v. Brien ("United Airlines") appeal from a Memorandum and Order entered September 23, 2004, granting Defendants' motion for summary judgment and denying Plaintiffs' cross-motion for summary judgment; (2) Plaintiffs in Air India Ltd. v. Brien ("Air India") appeal from a Memorandum and Order entered December 27, 2006, granting Defendants' Fed.R.Civ.P. 60(b)(6) motion for relief from judgment, and from a subsequent Order entered February 13, 2007, clarifying that the December 27, 2006, Order granted Defendants' motion for summary judgment and denied Plaintiffs' cross-motion for summary judgment; and (3) Plaintiffs in Finnair OY v. Brien ("Finnair") appeal from an Order entered February 13, 2007, granting Defendants' motion for summary judgment and denying Plaintiffs' cross-motion for summary judgment. By Order of this Court dated May 18, 2007, the three appeals were consolidated. In United Airlines, we REVERSE in part and AFFIRM in part. We REVERSE the judgment of the district court in the Air India and Finnair cases.

I. BACKGROUND

The three underlying lawsuits sprang from a 1995 umbrella lawsuit brought by twelve international airline companies against the Immigration and Naturalization Service ("INS").¹ See Air España v O'Brien, No. 95-CV-1650, 1997 WL 469992 (E.D.N.Y. June 18, 1997). The Air España litigation challenged the imposition of fines against the airlines for bringing undocumented immigrant and non-immigrant aliens into the United States in violation of 8 U.S.C. § 1323 (the "Penalty Statute").² Id. at *10. The district court ruled in favor of the INS in that action. See id. at *11-16. On appeal in 1999, this Court found that the airlines had not yet exhausted their administrative remedies. See Air España v. Brien, 165 F.3d 148, 152-53 (2d Cir.1999).³ Since that time, the BIA has made final administrative decisions on the airlines' claims, each of which affirmed the government's imposition of fines against airlines that had transported undocumented aliens into the United States in violation of 8 U.S.C. § 1323. The airlines challenged those decisions in the three separate lawsuits leading to this appeal. Because each lawsuit raises distinct issues and implicates a different set of statutes and regulations, each is addressed separately in this opinion.

A. United Airlines: Pre-1996 Tourist Regulation and the Parole Policy

United Airlines ("United") has challenged the INS's imposition of a fine for bringing a non-immigrant who did not possess a valid passport and/or visa needed for entry into the United States. In 1994, United transported a Mongolian citizen into the United States for purposes of his catching a connecting flight to Montreal. The INS deemed the Mongolian citizen inadmissible, but it nonetheless paroled him into the United States so that he could travel on to Canada. The INS then fined United for violating the Penalty Statute by "bring[ing] to the United States ... any alien who does not have a valid passport and an unexpired visa." 8 U.S.C. § 1323(a)(1); see also United Airlines, Inc. v. Jones, 337 F.Supp.2d 406, 408 (E.D.N.Y.2004).

United challenged the fine. It claimed that the Penalty Statute did not apply because the alien qualified for an emergency waiver, and if the alien had received a waiver no fine could have been imposed. At the time, the emergency waiver regulation stated that "[a] visa and a passport are not required of a non-immigrant who" demonstrates an unforeseen emergency. 8 C.F.R. § 212.1(g) (pre-1996). The Penalty Statute prohibits transporting an undocumented alien "if a visa was required under this chapter or regulations issued thereunder." 8 U.S.C. § 1323(a)(1). Under the controlling BIA precedent at the time, the relevant language of the emergency waiver regulation — "are not required" — negated application of the Penalty Statute in those cases where the visa requirement was waived because the alien demonstrated an unforeseen emergency.

United also argued that the INS had adopted a "policy" to parole aliens, such as the Mongolian citizen, into the United States, rather than waive the visa requirement and admit them, so as to preserve its ability to apply the Penalty Statute and collect a fine. It claimed that this policy was illegal and violated the Administrative Procedures Act (the "APA"). As framed by the district court, the question before it was "whether the defendant (the INS) acted lawfully in granting parole rather than a waiver to an arriving undocumented nonimmigrant alien and imposing a fine upon the transportation company (the airline) for bringing that alien to our shores." United Airlines, 337 F.Supp.2d at 409. The district court answered that question in the affirmative, finding the INS's challenged action lawful.

The district court first addressed United's claim that the INS had adopted a "policy" of paroling aliens into the United States rather than waiving the visa requirement "to legitimize the imposition of fines which the grant of waivers would have precluded." Id. The court found that under the Penalty Statute, the airline incurs liability for the fine when it brings an undocumented alien into the United States, notwithstanding any waiver or grant of parole that might occur after the alien has arrived. It was prepared to grant summary judgment to the INS on this basis alone, but it addressed the parties' arguments nonetheless, in part to comment on the BIA's "questionable interpretations of the relevant regulations." Id. at 411.

The BIA had held in its adjudications that, where a regulation purported to nullify the visa requirement in the event of waiver, such as by stating that the alien "is not required to present a visa if in his particular case a waiver of the visa requirement is granted," the Penalty Statute did not apply. Matter of Plane CCA "CUT-532", 6 I. & N. Dec. 262, 264 (BIA 1954). The BIA had reached this conclusion based on the Penalty Statute's restriction of its application to those cases where a visa was required.⁴ The district court found this reasoning wholly unpersuasive, as it believed that even in these "nullification" instances, a visa was "required" for purposes of considering a particular case under the Penalty Statute. Otherwise, asked the court rhetorically, "why was it necessary for those documents to be waived?" United Airlines, 337 F.Supp.2d at 412.

Considering the text of the Penalty Statute, the court noted that the statute applied if a visa was required under the Act or implementing regulations. The Act expressly requires non-immigrants to be in possession of a "valid nonimmigrant visa," 8 U.S.C. § 1182(a)(7)(B)(i)(II), further providing that the visa requirement "may be waived ... on the basis of unforeseen emergency in individual cases," id. § 1182(d)(4)(A). The district court found these statutory provisions "unambiguous." United Airlines, 337 F.Supp.2d at 411. The court held that the BIA had misinterpreted the phrase "or the regulations issued thereunder" in the Penalty Statute in a manner that was "plainly inconsistent with the intent of Congress." Id. The "unambiguous" Penalty Statute established the liability of an airline "at the moment" it brings an undocumented alien to the United States. Id. at 413. Such a reading, the court declared, "advances the recognized intent of Congress in enacting it." Id. The court applied the statutory and regulatory scheme temporally, to wit: the airline violates the Penalty Statute and becomes liable for the fine when it brings an undocumented alien to the United States, even though, at a later time, the INS might waive the visa requirement with respect to that individual alien.

According to the district court, the BIA's interpretation to the contrary "abort[ed] the intent of Congress as clearly reflected" in the statutory text. Id. at 414. It cited to the House Judiciary Committee report on the Immigration and Nationality Act ("INA") of 1952, in which the Committee stated that it had "substantially curtailed" the INS's authority to waive the visa...