Matter of M/V "Solemn Judge"

• Decision Date: 21 January 1982
• Docket Number: Interim Decision Number 2894,MIA 10/12.1785
• Citation: 18 I&N Dec. 186
• Court: U.S. DOJ Board of Immigration Appeals
• Parties: MATTER OF M/V "SOLEMN JUDGE" In Fine Proceedings

18 I&N Dec. 186

MATTER OF M/V "SOLEMN JUDGE"

In Fine Proceedings

Interim Decision Number 2894

MIA 10/12.1785

Board of Immigration Appeals

Decided by Board January 21, 1982

(1) In the absence of a showing of "affirmative misconduct" on the part of a government agent, the Board of Immigration Appeals decided not to meet the issue of whether the doctrine of estoppel can be applied against the government; "affirmative misconduct" was not shown by the fact that former President Jimmy Carter issued Presidential Determination No. 80-16 on April 14, 1980, or his "open hearts and open arms" speech on May 5, 1980; likewise, "affirmative misconduct" was not demonstrated by the absence of a warning to the carrier by the United States Coast Guard or the United States Customs Service concerning the subject of administrative fines for bringing undocumented aliens to the United States or by the fact that the Customs Service issued the carrier clearance to travel to Cuba.

(2) The Attorney General has delegated to the Commissioner of the Immigration and Naturalization Service the authority to enforce the provisions of the Immigration and Nationality Act and the Commissioner, through his delegate, the District Director, properly exercised that authority under the provisions of section 273(b) of the Act.

(3) The carrier became liable to fines under the provisions of section 273 of the Act by transporting undocumented alien passengers to the United States and, therefore, cannot claim exemption from liability merely by delivering his passengers to the Immigration and Naturalization Service for inspection upon arrival in the United States.

(4) The failure of the Immigration and Naturalization Service to respond to the request of the carrier to provide him with addresses of the undocumented alien passengers that he brought to the United States is not a denial of due process of law.

(5) The District Director's decision to impose or not to impose fines for violations of section 273 of the Act involves the exercise of prosecutorial discretion which is not reviewable by the Board of Immigration Appeals.

(6) Remission of fines under section 273(c) of the Act is not warranted because the carrier failed to exercise reasonable diligence in ascertaining and complying with the requirements of the law for bringing alien passengers to the United States.

(7) The defense of duress is not available to the carrier seeking remission of fines under section 273(c) of the Act for the reasons that his objective in bringing immigrants to the United States who did not have proper documentation was contrary to the law; that his action in doing so was not prudent; and that he, in effect, usurped the authority of the Attorney General by precluding the government from screening those immigrants who were inadmissible under United States law.

In re: M/V "Solemn Judge", which arrived at Key West, Florida, from Cuba on May 25, 1980. Alien passengers involved: Carlos Gonzalez-Guiu, Elena Hernandez-Guiu, Myrna Martinez-Martinez, Isriano Uicario-Duran, Michel Menez-Segredo, Gilberto Sanchez, et al.

BASIS FOR FINE: Act of 1952—Sec. 273 [8 U.S.C. 1323]—Bringing to the United States immigrants not in possession of unexpired visas

ON BEHALF OF CARRIER: Alfred K. Frigola, Esquire Frigola and De Vane, P.A. First Professional Centre Suite 17 5701 Overseas Highway P.O. Box 177 Marathon, Florida 33050

ON BEHALF OF SERVICE: Gerald S. Hurwitz Appellate Trial Attorney

BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members

On February 9, 1981, the District Director in Miami imposed administrative fines totalling $190,000 upon Nevin Stewart, Jr., captain/owner of the M/V Solemn Judge (hereinafter referenced as the "carrier"), for 190 violations of section 273(a) of the Immigration and Nationality Act, 8 U.S.C. 1323(a).¹ 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 chartered his vessel for $1,000 per day to go to Cuba for the purpose of picking up 54 Cuban nationals and returning with them to the United States. It further reflects that he departed from the United States for Cuba on April 29, 1980, and that he returned from Cuba to Key West, Florida, on May 25, 1980. Upon his arrival in the United States, he was served with a Notice of Intention to Fine charging him with having brought to the United States 191 Cuban nationals who did not have valid unexpired visas for entry. The carrier filed a written defense and appeared for an interview on September 15, 1980. An immigration officer found the carrier subject to fines under section 273 of the Act for 190 violations, He recommended that the District Director impose the statutory $1,000 per alien fine with respect to all 190 violations. 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 ... to bring to the United States from any place outside thereof ... 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. 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."

It is important to note 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 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. Matter of M/V "Emma", 18 I&N Dec. 40 (BIA 1981); Matter of Swissair, "Flight #164", 15 I&N Dec. 1 (BIA 1974). Further, there is no provision for mitigation of such fines. Section 273(c) permits remission (forgiveness in full) in only one circumstance: where it appears that prior to the alien's departure from the last port outside of 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 case. Matter of S.S. "Florida", 3 I&N Dec. 1 (BIA 1947, 1948; A.G. 1948).

The carrier has raised a number of contentions in these proceedings. We state and address them in turn.

The carrier argues that the government should be estopped from imposing fines in this case because it encouraged him to go to Cuba and did not warn him that he was subject to fines if he brought undocumented Cuban nationals to the United States. The carrier contends that he went to Cuba after former President Carter determined on April 14, 1980,² that persons who had taken sanctuary in the Peruvian Embassy in Havana and who otherwise qualified could be considered refugees, that an unforseen emergency refugee situation existed, and that the admission into the United States of 25 to 33 percent of these refugees up to a maximum of 3,500 refugees was justified by grave humanitarian concerns. The carrier also contends that he went to Cuba pursuant to former President Carter's "open hearts and open arms" policy. He further alleges that prior to his vessel's departure for Cuba, he went to a United States Customs Service office, advised the Customs Service of the nature of his voyage, paid a fee, and received a "Clearance of Vessel to a Foreign Port" authorizing him to travel to Cuba. The carrier adds that the Customs Service did not warn him that he was subject to a fine for transporting "refugees" to the United States.

The carrier's argument that the government should be estopped from imposing fines in this case is without merit. It was once thought to be well-settled that the doctrine of estoppel could not be applied against the government. See Utah Power and Light Company v. United States, 243 U.S. 389 (1917); Federal Crop Insurance Corporation v. Merrill, 332 U.S. 380 (1947). However, in two nationality cases, INS v. Hibi, 414 U.S. 5 (1973) and Montana v. Kennedy, 366 U.S. 308 (1961), the United States Supreme Court opened the possibility that the doctrine of estoppel might be applied against the government in a case where it is established that its agents engaged in "affirmative misconduct." Since these cases were decided, lower Federal courts have found "affirmative misconduct" and applied estoppel against the government in a number of cases.³ However, the Supreme Court has not yet decided whether even "affirmative misconduct" is sufficient to estop the government. Schweiker v. Hansen, 101 S. Ct. 1468 (1981), rehearing denied, 101 S. Ct. 3023 (1981) (involving an application for Social Security benefits). See also INS v. Miranda, 102 S. Ct. 81 (1981), (judgment vacated and case remanded to Court of Appeals for further consideration in light of Schweiker v. Hansen, supra).

We need not face the issues of whether the doctrine of estoppel can be applied against the government in this case, or whether we have the authority to apply that doctrine, because we find that this carrier has not established any "affirmative misconduct" such as might warrant the application of that doctrine. We will consider the factors alleged as "affirmative misconduct" seriatim.

First, former President Carter's Determination of April 14, 1980, did not...