The opinion of the court was delivered by: CAROL E. HECKMAN
The following constitutes my decision and order pursuant to Fed.R.Crim.P. 5.1. For the reasons set forth below, Defendant's motion to dismiss the charge is denied, and the Defendant is held to answer in district court.
According to the complaint, and the affidavit of United States Immigration and Naturalization Service ("INS") Special Agent Leonard P. Forth attached thereto, the co-defendants applied for entry into the United States on November 13, 1992 at the Lewiston-Queenston bridge. At that time, Defendant Ramkissoon presented a Canadian citizenship card issued in the name of Khublal Persaud, and advised the Immigration Inspector that he was a Canadian citizen.
Upon further questioning by INS officers, Ramkissoon admitted that he was a citizen of Guyana, and that his application for asylum status had been denied by the Canadian government. He had been directed by Canadian Immigration authorities to depart from Canada on or before November 20, 1992. This information was confirmed by INS officers. Ramkissoon further admitted that he had made arrangements with Defendant Darsan to obtain false Canadian citizenship documents, and transportation to New York City, for a fee of $ 2,000.00 (U.S. funds) payable upon successful arrival in the United States. Ramkissoon also admitted that he intended to reside in New York City upon his arrival there.
The complaint was sworn to on November 14, 1992, charging Darsan and Ramkissoon with conspiracy to bring about Ramkissoon's unauthorized entry into the United States for commercial advantage or private financial gain.
Defendant Darsan contends that the charges against him should be dismissed since Ramkissoon is entitled to the waiver of nonimmigrant visa and passport requirements provided in 8 U.S.C. § 1182(d)(4) and the implementing INS regulations. That section provides in pertinent part as follows:
(d) Temporary admission of nonimmigrants.
(4) Either or both of the [nonimmigrant passport and visa requirements] may be waived by the Attorney General and the Secretary of State acting jointly . . . (B) on the basis of reciprocity with respect to nationals of foreign contiguous territory or of adjacent islands and residents thereof having a common nationality with such nationals . . ..
8 U.S.C. § 1182(d)(4)(B). The INS regulations explain that this waiver is available to "an alien having a common nationality with Canadian nationals . . ., who has his or her residence in Canada . . .." 8 C.F.R. § 212.1(a); see also 22 C.F.R. § 41.2(b). According to INS guidelines, nationals of Guyana are considered to be covered by this waiver provision. See, e.g., INS Operations Instruction OI 212.1(b), attached as Exh. C to Item 6.
On the other hand, the government contends that Darsan is chargeable with a violation of § 1324(a)(2) on the basis that Ramkissoon is not entitled to the § 1182(d)(4) waiver because he is an "immigrant" alien subject to the passport and visa requirements of 8 U.S.C. § 1181(a). According to the government, Ramkissoon is not qualified under any of the enumerated exceptions for "nonimmigrant" alien status set forth at 8 U.S.C. § 1101(a)(15), and therefore cannot be eligible for a waiver of the nonimmigrant passport and visa requirements. In particular, the government contends that because Ramkissoon admitted his intent to take up residence in New York City, and his failure to obtain asylum in Canada, he cannot be considered "an alien . . . having a ...