Suspension of Privilege To Transport Aliens to the United States [63 FR 56869] [FR 81-98]

DOCUMENT NUMBER: FR 81-98

FEDERAL REGISTER CITE: 63 FR 56869

DATE OF PUBLICATION: October 23, 1998

BILLING CODE 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 and 273

[INS No. 1809-96]

RIN 1115-AE59

Suspension of Privilege To Transport Aliens to the United States

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to amend the Immigration and Naturalization Service (Service or INS) regulations by allowing the Service to suspend a commercial airline's privilege to transport aliens to the United States if the airline brings in passengers with fraudulent documents contrary to regulation and at a significantly higher rate than the industry standard. This rule is necessary to ensure that airlines prevent the boarding and transport of aliens who use fraudulent documents in an attempt to gain entry to the United States.

Initially, an offending carrier will be fined under section 273 of the Immigration and Nationality Act (Act) for transporting aliens with fraudulent documents at a rate significantly above the industry standard. If the carrier's performance does not improve after the imposition of fines, the Immigration and Naturalization Service will issue a warning letter stating that the Service may cancel the carrier's contracts. If the carrier continues to transport aliens with fraudulent documents, the Service will is sue a notice of intent to suspend the carrier's privilege to transport aliens to the United States. If the carrier still transports aliens with fraudulent documents, the Service will suspend the carrier's privilege to transport aliens.

DATES: Written comments must be submitted on or before December 22, 1998.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, attention: Public Comment Clerk, 425 I Street, NW, Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS No. 1809-96 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Una Brien, Director, National Fines Office, Inspections Division, Immigration and Naturalization Service, 1400 Wilson Blvd., Suite 210, Arlington, VA 22209, telephone (202) 305-7018.

SUPPLEMENTARY INFORMATION: Section 124(b)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009, amended section 212(f) of the Immigrant and Nationality Act (the Act) by authorizing the Attorney General to suspend a commercial airline's privilege to transport aliens to the United States if the airline brings in passengers with fraudulent documents. The Attorney General has delegated to the Commissioner of the INS her authority to issue regulations. This rule propos es to add a new § 273.7 to define the steps the Service will take to suspend a commercial airline's privilege, if necessary. This is supported by Articles 4 and 5 of the U.S. Government Model Open Skies Agreement. It also amends § 103.1(f)(3)(iii) by adding an appeal to the Administrative Appeals Office (AAO) of a decision by the Executive Associate Commissioner for Field Operations to suspend an airline's privilege of transporting some or all aliens to the United States.

Section 212(f) of the Act allows the president to suspend the admission of any class of aliens if their entry would be detrimental to the interests of the United States. In IIRIRA, Congress provided that: "Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detectio n), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline."

It should be noted that the Service has other means available to encourage airlines to comply with the Act by preventing the transport of improperly documented aliens to the United States. Specifically, a carrier is subject to monetary penalties under section 273 of the Act for transporting to the United States an alien which is not in possession of a valid passport or visa, as required. It has long been the Service's policy not to impose a fine against a carrier that transports aliens with fraudulent docum ents unless the quality of the fraud is exceedingly poor and could have reasonably been detected by carrier personnel at the port-of-embarkation.

In recent years, the Service has been working closely with the air transport industry to provide training to carriers in screening passengers for proper documentation. Administrative fines for bringing in aliens who have destroyed their documents en route and arrive in the United States without passports or visas dropped from approximately 3,000 cases in Fiscal Year 1992 to approximately 1,200 cases in Fiscal Year 1995. The primary reason for the decrease in the number of aliens without documents being bro ught to the United States was the passage in 1990 of legislation which increased the fine imposed on a carrier for the transportation of improperly documented aliens from $1,000 to $3,000 for each violation of section 273(a) of the Act. As a result, carriers, seeking to avoid fines, began document training programs for their agents at overseas ports-of-embarkation. It is anticipated that imposition of fines for bringing in aliens with reasonably detectable fraudulent documents will similarly reduce the fre quency of such occurrences.

Prior to December 1994, the Service, by statute, was permitted to remit or refund fines imposed under section 273 of the Act only if the carrier could demonstrate that it did now know, and could not have ascertained by the exercise of reasonable diligence, that the individual transported was an alien and that valid passport or visa was required. Section 209(a)(6) of the Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. 103-416, 108 Stat. 5312, Oct. 25, 1994), added subsection (e) to se ction 273 to the Immigration and Nationality Act. This new subsection gave the Service the ability to reduce a fine if a carrier can demonstrate that it screened passengers in accordance with standards prescribed by the Attorney General, or that circumstances exist that the Attorney General determines would justify reduction. In a final rule published in the Federal Register on April 30, 1998, at 63 FR 23643, the Service provided procedures a carrier must undertake for the proper screening of passengers at the port-of-embarkation to become eligible for fines reductions, refunds, or waivers. These procedures are considered voluntary.

The provisions, enacted in IIRIRA, allowing the Service to suspend an airline's privilege to transport aliens to the United States would be a last resort, and it is anticipated that it would rarely be used. Generally, once the Service imposes significant monetary penalties against a carrier, the carrier will take corrective action by improving document screening standards, training check-in agents, and upgrading security measures. If fining the carrier proved to be ineffective, the Service could, with rea sonable notice, cancel the carrier's Visa Waiver Pilot Program (VWPP), Transit-without-Visa (TWOV), and/or preinspection contracts. If a carrier continued to transport aliens with fraudulent documents to the United States at a significantly higher rate than the industry standard, despite the imposition of fines and the cancellation of contracts, the Service could invoke its authority to suspend a carrier's privilege to transport aliens to the United States. To the extent required under applicable bilateral air services agreements, the United States would pursue consultations with the governments of implicated airlines relative to any potential suspension of a carrier's privilege to transport aliens to the United States.

When it is noted that a commercial airline transports to the United States, at a rate that significantly exceeds the industry standard, aliens with altered or counterfeit documents that should have been identified as deficient by the use of reasonable diligence, 1/ and the airline has made insufficient effort to stop the transport of such aliens despite the imposition of fines pursuant to section 273 of the Act, the Service will issue a warning letter. The letter will notify the airline that the number or percentage of passengers with fraudulent documents brought to the United States by the airline is significantly above the industry standard. The letter will also described the circumstances that have prompted the Service to issue the letter and what the carrier mu st do to comply with Service regulations regarding document screening. The Service will also offer to provide training in the detection of fraudulent documents. The letter will further state that if, within 120 days from the date of the letter, the carrier has not brought its fraudulent document violation rate to an acceptable level compared to the industry standard, the Service may cancel the carrier's VWPP, TWOV, and/or preinspection contracts. Within the 120 days the carrier must bring its fraudulent do cument violation rate to an acceptable level compared to the industry standard. The carrier may use this 120-day period to train its employees and improve document screening standards in order to reduce the rate at which it transports aliens with fraudulent documents. If the carrier does not reduce its fraudulent document rate to an acceptable level, the Service may take action to cancel with the airline in addition to imposing fines under section 273 of the Act.

If the Service cancels some or all of the airline's contracts, the Service will also inform the airline that it must reduce its fraudulent document violation rate to an acceptable level within 60 days of the cancellation of its contracts, and warn the airline that if it does not achieve this reduction, the Service may take action to suspend the airline's privilege to transport aliens to the United States.

The Service is requesting comments on whether the level at which sanctions are triggered should be given a more precise definition. The Service considered using a numerical formula to calculate the industry standard and setting a level above which sanctions would be invoked. Comments on this or alternative approaches are welcome.

Other criteria for suspending an airline's privilege to transport aliens to the United States were also considered, but not adopted. For example, consideration was given to suspending the privilege if a carrier brought in a number of aliens with fraudulent documents on one flight that was significantly above the industry standard, or if over 10 percent of the alien passengers on any one flight arrived with fraudulent documents, or if a carrier regularly or systematically transported aliens with fraudulent documents. For example, a carrier might operate a 300-400 seat aircraft and bring 30, 40, or 50 fraudulently documented aliens to the United States. However, smaller carriers might operate a 10-seat aircraft and transport 9 aliens with fraudulent documents. Or a carrier might bring in aliens with fraudulent documents on a daily or almost daily basis.

After the contracts are canceled, if the carrier still does not lower its fraudulent document violation rate to an acceptable level within a 60-day period, the Service may issue a notice of intent to suspend the carrier's privilege to transport some or all aliens to the United States. The Service will forward a copy of this notice to the Office of Aviation Programs and Policy of the Department of State (DOS), requesting that DOS contact the appropriate foreign government to the extent required under applic able bilateral air services agreements.

The carrier may submit written representations to the Service stating why the Service should not suspend the carrier's privilege to transport aliens to the United States and may request an interview with the Service. If, within 30 days of the issuance of the notice of intent to suspend, the carrier still does not bring its fraudulent document violation rate to an acceptable level, the Service may suspend the carrier's privilege to transport some or all aliens to the United States or to a particular Port-of -Entry within the United States or from a particular foreign port-of-embarkation. Any Service decision to suspend the carrier's privilege to transport some or all aliens to the United States will take into consideration any consultations between governments under applicable bilateral air services agreements. The carrier will be fined under section 721 of the Act if it continues to transport aliens to the United States in violation of the suspension order.

The carrier may appeal the Service's decision to the Administrative Appeals Office (AAO). The AAO will adjudicate the appeal as expeditiously as possible.

In order to have its privilege to transport aliens to the United States reinstated, the airline must demonstrate improved document screening and personnel-training standards as defined in 8 CFR 273.3. The carrier must submit evidence that it has taken extensive measures to prevent the transport of improperly documented passengers to the United States. This evidence shall be submitted to the Executive Associate Commissioner for Field Operations for consideration. Evidence may include, but is not limited t o, the following: (1) Information regarding the carrier's document screening training program, including attendance of the carrier's personnel in any Service, DOS, or other training programs, the number of employees trained, and a description of the training program; (2) information regarding the date and number of improperly documented passengers bound for countries other than the United States and intercepted by the carrier at the port(s)-of-embarkation, including, but not limited to, the passenger's name , date of birth, passport nationality, passport number, other travel document information, reason boarding was refused, the country of destination and port of embarkation; and (3) any other evidence to demonstrate the carrier's efforts to properly screen passengers destined for the United States. The evidence submitted should indicate that the carrier has achieved substantial compliance with INS screening standards in order to improve screening of its passengers. If the Executive Associate Commissioner fo r Field Operations is satisfied that the carrier has achieved substantial compliance with INS screening standards, he will issue a notice to the carrier reinstating its privilege to transport aliens and enter into contracts pursuant to section 233 of the Act.

It should be noted that this action suspends only the carrier's authorization to bring aliens to the United States. It does not suspend landing rights and it does not suspend authority to bring U.S. citizens or aliens to the United States who are not subject to the order, or to transport persons out of the United States.