In a consolidated appeal from three district court orders in actions by international airline companies challenging the INS's imposition of fines against the airlines for bringing undocumented immigrant and non-immigrant aliens into the United States in violation of 8 U.S.C. section 1323, the court of appeals rules as follows. One order is affirmed in part where the INS did not act arbitrarily when it employed its parole power rather than its visa waiver authority to admit aliens into the U.S. However, the order is reversed in part where a Board of Immigration Appeals rule, which exempted airlines from liability for bringing an undocumented alien to the U.S. when the alien received a post-arrival visa waiver, was consistent with the Penalty Statute. Another order is reversed where the INS's Rule 60 motion was procedurally defective because the circumstances were not sufficiently extraordinary to merit such relief. In another matter, summary judgment for the INS is reversed where: 1) the INS's 1996 amendment of its tourist visa waiver regulation was invalid because it was promulgated in violation of the joint action requirement; and 2) the State Department's 1999 version of the tourist visa waiver regulation was invalid because it was promulgated in violation of the joint action requirement and without notice-and-comment.
Argued: May 12, 2008
Decided: November 20, 2009
Opinion by Judge Hall
Scott Dunn, Roslynn R. Mauskopf, F. Franklin Amanat, Assistant United States Attorneys, Brooklyn, NY