Swissair v. Kennedy

• Decision Date: 12 December 1963
• Docket Number: No. 17823.,17823.
• Citation: 327 F.2d 860,117 US App. DC 162
• Parties: SWISSAIR, Swiss Air Transport Co., Ltd., Appellant, v. Robert F. KENNEDY, Attorney General of the United States, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

117 US App. DC 162, 327 F.2d 860 (1963)

SWISSAIR, Swiss Air Transport Co., Ltd., Appellant, v. Robert F. KENNEDY, Attorney General of the United States, et al., Appellees.

No. 17823.

United States Court of Appeals District of Columbia Circuit.

Argued November 15, 1963.

Decided December 12, 1963.

Mr. George F. Galland, Washington, D. C., with whom Mrs. Amy Scupi, Washington, D. C., was on the brief, for appellant.

Mr. William H. Willcox, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Gil Zimmerman, Asst. U. S. Attys., were on the brief, for appellees.

Before EDGERTON, Senior Circuit Judge, and FAHY and DANAHER, Circuit Judges.

FAHY, Circuit Judge.

The appeal questions the validity of a fine of $1,000 imposed upon appellant, an airline company, by the Board of Immigration Appeals under Section 273 of the Immigration and Nationality Act, 66 Stat. 227 (1952), 8 U.S.C. § 1323 (1958). The fine was challenged in the District Court by an action brought under the provisions of the Immigration and Nationality Act, 66 Stat. 230 (1952), 8 U.S. C. § 1329 (1958), and the Administrative Procedure Act, 60 Stat. 243 (1946), 5 U.S.C. § 1009 (1958). On cross-motions for summary judgment the court granted the motion of defendants,¹ the appellees, and dismissed the complaint. We affirm.

Under said Section 273 it is unlawful for a transportation company, such as appellant Swissair, to bring to the United States from outside its boundaries an alien "who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder." If it appears to the satisfaction of the Attorney General that this provision has been violated the transportation company shall pay $1,000 for each alien so brought. It is further provided that this sum shall not be remitted or refunded unless it appears to the satisfaction of the Attorney General that the transportation company, prior to the departure of the 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 visa was required."

A regulation issued by the Attorney General under the authority conferred upon him by the Act and designated as § 211.1 of 8 Code of Federal Regulations, provides that a valid unexpired immigrant visa shall be presented by each arriving immigrant alien, with certain exceptions.² One of the exceptions applies to an immigrant who is returning to an unrelinquished permanent lawful residence after a temporary absence abroad not exceeding one year and who presents a "Form I-151 alien registration receipt card duly issued to him." The regulation further provides, however, that such a Form I-151 card "shall be invalid under this section when presented by an alien who during his temporary absence abroad traveled to, in, or through * * * Rumania * * *," if the card is not endorsed to show that this restriction has been waived.

William J. Arkins was an immigrant returning to an unrelinquished permanent residence in the United States. He was an employee of Swissair and, though a native and citizen of Ireland, had become a legal resident of the United States by entering originally in 1955 under a valid immigrant visa. In 1961 he traveled by Swissair from New York to Zurich on a ticket supplied by Swissair to Zurich and return. From Zurich he visited Rumania on business for Swissair, returned to Zurich, and then was transported by Swissair to the United States via Ireland, where he stopped for a week. When he reached Idlewild Airport it was learned that during this temporary absence from the United States he had made the trip to Rumania. The immigration authorities held that this invalidated his Form I-151 re-entry permit and subjected Swissair to the fine, since a visa became required by the absence of a valid re-entry permit.

Swissair makes no contention that it is excused from the fine under the provisions applicable to one who "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," 8 U.S.C. § 1323(c), that is, Swissair makes no contention of a factual character that it was unaware of all that had occurred with respect to the trip to Rumania. It contends as a legal proposition that the penalty provisions of Section 273 do not apply since a visa was not required. The theory advanced is that since Arkins could have entered on a valid re-entry permit he was not required to have a visa within the meaning of the statutory provisions to which we have referred.

We think Swissair's contention cannot be sustained. Regulation § 211.1 was authorized by the statute. Under...