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September 14, 2004.

UNITED AIRLINES, INC., et al., Plaintiffs,
MICHAEL D. JONES, et al., Defendants.

The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge


The plaintiff, United Airlines, seeks a judgment that would declare that a fine was unlawfully imposed upon it for transporting a non-immigrant alien to the United States who did not have a valid, unexpired visa and/or passport, in violation of 8 U.S.C. §§ 1323(a)(1) and (b). A decision dated May 28, 1999, by the Board of Immigration Appeals (BIA), sustaining the fine imposed and dismissing the appeal from that imposition is sought to be reviewed and set aside. Fifteen other airlines whose appeals involving the same issues were similarly dismissed by the BIA are joined as plaintiffs and seek the same relief. The defendant has moved, and the plaintiffs have cross-moved, for summary judgment which are the motions before the Court for resolution.


  On November 22, 1994, United Airlines carried a passenger to the United States from Japan. The passenger was a citizen of the Mongolian People's Republic who arrived without a valid unexpired visa. He presented instead, a Mongolian Diplomatic Passport with a visitor visa for one entry into Canada, and applied for admission to the United States as a passenger in transit without a visa who was scheduled to connect to another airline's flight to Montreal. He was deemed ineligible for transit without visa status and excludable by virtue thereof. He was, nevertheless, paroled into the country for departure to Canada.

  On December 19, 1994, the carrier was found to have violated 8 U.S.C. § 1323(a)(1) and determined to be liable for an administrative fine of $3,000 pursuant to § 1323(b). That statute provides in relevant part:
(a)(1) It shall be unlawful for any . . . transportation company . . . to bring to the United States from any place outside thereof . . . any alien who does not have a valid passport and an unexpired visa, if a visa was required under this chapter or regulations issued thereunder.
* * *
(b) If it appears to the satisfaction of the Attorney General that any alien has been so brought, such . . . transportation company, . . . shall pay to the Commissioner, a fine of $3,000 for each alien so brought . . .
  The carrier, in response, asserted that the passenger was eligible for a waiver of the visa requirement pursuant to 8 U.S.C. § 1182(d)(4) (1994), and 8 C.F.R. § 212.1(g) (1995), and that had a waiver been issued, a fine could not have been imposed. 8 U.S.C. § 1182(d)(4) provides in relevant part that the failure to possess the required documents "may be waived by the Attorney General and the Secretary of State acting jointly (A) on the basis of unforseen emergency in individual cases. . . ." 8 C.F.R. § 212.1(g) (1995), the regulation in effect when the undocumented alien arrived, provides in relevant part:
a valid unexpired visa and an unexpired passport . . . shall be presented by each arriving non-immigrant alien except . . . for the following classes:
(g) A visa and a passport are not required of a non-immigrant who, either prior to his . . . embarkation at a foreign port . . . or at time of arrival . . . in the United States, satisfies the district director at the port of entry that, because of an unforeseen emergency, he . . . is unable to present the required documents, in which case a waiver application shall be made on Form I-193. The district director may approve a waiver of documents in each case in which he . . . is satisfied that the non-immigrant cannot present the required documents because of an unforseen emergency and the waiver would be appropriate in the circumstances.*fn1 (emphasis added).
  The carriers also contend that the Immigration and Naturalization Service (INS) paroled the aliens pursuant to a belatedly adopted "policy" in lieu of granting them waivers solely for the purpose of exacting the fines and that in doing so, the agency acted unlawfully and, in any event, ran afoul of the Administrative Procedures Act ("APA").

  The defendant filed a motion for summary judgment and the plaintiffs cross-moved for summary judgment. The issues presented by their respective motions are: (1) the plaintiffs' standing to challenge the parole of undocumented aliens; (2) the legality of the fines imposed upon the paroled, undocumented aliens; (3) the implication of the APA in granting parole rather than waivers; (4) the delay in forwarding plaintiffs' appeal to the BIA and its consequences, if any.


  The cases which recite the fundamental principles by which motions for summary judgment are governed are legion. It will suffice to cite the three cases invariably referenced which collectively teach, in essence, that summary judgment will not lie if there is a genuine dispute about a material fact, that is, if the evidence is such that a reasonable jury could return a verdict for the non-movant. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The rest is commentary.

  The core issue of this dispute, the determination of which will effectively resolve it, can simply be stated to be whether the defendant (the INS) acted lawfully in granting parole rather than a waiver to an arriving undocumented non-immigrant alien and imposing a fine upon the transportation company (the airline) for bringing that alien to our shores. In the final analysis, that issue will be resolved by a consideration of the relevant statutes, regulations and some cases which have construed and applied them.

  At the outset, it may be superfluous to note that Congress has the power to police entrants at the country's borders. That power is derived from the sovereign authority of the United States, see, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985); Chae Chan Ping v. United States, 130 U.S. 581, 600 (1889); Edye v. Robertson, 112 U.S. 580, 591 (1884), and encompasses not only the power to regulate commerce with foreign nations and between the states, but also the power to preclude foreigners from entering the country and the power to admit them upon such conditions as Congress may see fit to prescribe.

  A. The Authority of the INS to Parole

  The fact that the carrier's passengers were paroled into the country rather than having permitted their entry by waiving the documentary pre-requisites, is characterized by the plaintiffs as reflecting the nefarious adoption of a new policy by the INS, designed to legitimize the imposition of fines which the grant of waivers would have precluded. That characterization and the motive imputed to it are both wrong. 8 U.S.C. § 1182(5)(A) is not reflective of a newly adopted policy. It explicitly confers upon the Attorney General "discretion" to "parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States. . . ." (emphasis added). That authority is clearly reflected as well in many cases, decided long before November 22, 1994, when United Airlines arrived in New York with a passenger from Japan.

  In Matter of Plane "F-BHSQ," 9 I. & N. Dec. 595 (BIA 1962), a passenger was transported from Paris, France to New York by Air France. He was an alien without the documentary pre-requisites for entry into this country. The carrier was fined in accordance with 8 U.S.C. § 1323(b) notwithstanding that the alien was paroled into the country. The carrier appealed the imposition of the fine and sought its remission claiming it exercised due diligence in transporting the alien in the belief that he would be granted a visa waiver on the ground of an unforeseen emergency. In denying the carrier's request for remission of the fine and dismissing the appeal, the Board of Immigration Appeal (BIA) wrote:
Under this statute [8 U.S.C. § 1323(a), (b)], the carrier had the duty of ascertaining, prior to his [the alien's] embarkation, that the alien passenger was in possession of documents valid for admission into the United States. It does not contemplate that this or any other carrier will embark aliens for the United States when they lack visas, with the hope that liability can be avoided by the granting of a waiver or parole to the individual alien subsequent to his arrival in this country. This section of the law was clearly enacted to prevent speculation such as this on the part of the carrier's bringing aliens to the United States. (emphasis added). Matter of Plane "F-BHSQ," 9 I. & N. Dec. at 596.
  In Matter of Aircraft "VT DJK," 12 I. & N. Dec. 267 (BIA 1967), a non-immigrant alien was carried from London to New York by Air India on August 31, 1966. He did not possess the requisite visa, but was nevertheless paroled into the United States to accomplish the purpose of his visit. The carrier was fined in accordance with 8 U.S.C. § 1323(a), (b), and appealed its imposition. In dismissing the appeal, the BIA held that the carrier derived no assistance from its agreement with the passenger that in the event he was not admitted into the country upon arriving in New York, he would be returned to London. The Court then went on to write:
The manifest intention of the Congress, as appears from the plain language of the statute, was to subject carriers to a penalty for taking on board and bringing to the United States aliens not in possession of the required documents. If the carrier were to escape such penalty because of developments subsequent to arrival in the United States and exclusion of the alien passenger, the carrier would be in a position of being permitted to speculate upon the administration and enforcement of the law. This, obviously, is not within the contemplation of the statute. Hence, when a carrier takes on board and brings a nonimmigrant to the United States who is not in possession of the documents ...

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