04-6018-cv
United Airlines, Inc. v. Brien
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
August Term, 2007
(Argued: May 12, 2008 Decided: November 20, 2009)
Docket Nos. 04-6018-cv(L), 07-0689-cv(CON), 07-1593-cv(CON)
_____________________
UNITED AIRLINES, INC., AIR INDIA LIMITED , AIR ESPANA , BRITISH AIRWAYS PLC, CAYMAN
AIRWAYS, LTD ., COMPAGNIE NATIONALE AIR FRANCE , DEUTSCHE LUFTHANSA AG, EL-AL
ISRAEL AIRLINES, LTD ., FINNAIR OY , FLUGLEIDIR, H .F., IBERIA , LINEAS AEREAS DE ESPANA , S.A.,
LAUDA AIR LUFTFAHRT , A.G., LTU LUFTTRANSPORT -UNTERNEHEMEN GMBH & CO .,
OSTERREICHE LUFTVERKEHRS, A.G., SOUTH AFRICAN AIRWAYS PROPRIETARY , LIMITED , VIRGIN
ATLANTIC AIRWAYS, LTD ., AIR JAMAICA LIMITED , TRANSPORTES AREOS PORTUGUESES, S.A.,
NORTH AMERICAN AIRLINES, INC., SINGAPORE AIRLINES LIMITED ,
Plaintiffs-Appellants,
-v.-
UNA F. BRIEN , DIRECTOR, U.S. DEPARTMENT OF JUSTICE , IMMIGRATION AND NATURALIZATION
SERVICE , NATIONAL FINES OFFICE , KEVIN ROONEY , ACTING COMMISSIONER , JOHN D.
ASHCROFT , ATTORNEY GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE , PAUL
W. SCHMIDT , CHAIRMAN , JAMES ZIGLAR, COMMISSIONER , U.S. DEPARTMENT OF JUSTICE ,
IMMIGRATION AND NATURALIZATION SERVICE , LORI SCHIALABBA , ACTING CHAIRMAN , U.S.
DEPARTMENT OF JUSTICE , EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, BOARD OF
IMMIGRATION APPEALS, COLIN L. POWELL,
Defendants-Appellees,
MICHAEL JONES,
Defendant.
_____________________
BEFORE: FEINBERG , MINER, and HALL, Circuit Judges.
____________________
This is a consolidated appeal from three final Orders of the United States District Court
for the Eastern District of New York (Glasser, J.). In the underlying lawsuits, international
airlines companies challenged 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. § 1323 (the “Penalty Statute”). In United Airlines, Inc. v. Brien, we REVERSE in part the
district court’s ruling and hold that the Board of Immigration Appeals Rule, which exempts
airlines from liability for bringing an undocumented alien to the United States when the alien
receives a post-arrival visa waiver, is consistent with the Penalty Statute; we also AFFIRM in
part the district court’s ruling and hold that the INS did not act arbitrarily when it employed its
parole power rather than its visa waiver authority to admit aliens into the United States. In Air
India Ltd. v. Brien, we REVERSE the district court’s grant of relief to the INS under Rule
60(b)(6) and hold that the Rule 60 motion was procedurally defective because the circumstances
were not sufficiently extraordinary to merit such relief. In Finnair OY v. Brien, we REVERSE
the district court’s grant of summary judgment to the INS and hold that: (1) the INS’s 1996
amendment of its tourist visa waiver regulation is 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 is invalid because it was promulgated in violation of the joint action
requirement and without notice-and-comment.
_____________________
SCOTT DUNN , Assistant United States Attorney, (Roslynn R. Mauskopf, United
States Attorney for the Eastern District of New York, and F. Franklin Amanat,
Assistant United States Attorney, on the brief), Brooklyn, New York, for
Defendants-Appellees.
2
CHRISTINA HAGAN , (Jonathan A. Fuchs, on the brief), Hagan, Coury &
Associates, Brooklyn, New York, for Plaintiffs-Appellants.
_____________________
HALL, Circuit Judge:
This is a consolidated appeal from three final Orders of the United States District Court
for the Eastern District of New York (Glasser, J.): (1) Plaintiffs in United Airlines, Inc. v. Brien
(“United Airlines”) appeal from a Memorandum and Order entered September 23, 2004, granting
Defendants’ motion for summary judgment and denying Plaintiffs’ cross-motion for summary
judgment; (2) Plaintiffs in Air India Ltd. v. Brien (“Air India”) appeal from a Memorandum and
Order entered December 27, 2006, granting Defendants’ Fed. R. Civ. P. 60(b)(6) motion for
relief from judgment, and from a subsequent Order entered February 13, 2007, clarifying that the
December 27, 2006, Order granted Defendants’ motion for summary judgment and denied
Plaintiffs’ cross-motion for summary judgment; and (3) Plaintiffs in Finnair OY v. Brien
(“Finnair”) appeal from an Order entered February 13, 2007, granting Defendants’ motion for
summary judgment and denying Plaintiffs’ cross-motion for summary judgment. By Order of
this Court dated May 18, 2007, the three appeals were consolidated. In United Airlines, we
REVERSE in part and AFFIRM in part. We REVERSE the judgment of the district court in the
Air India and Finnair cases.
I. BACKGROUND
The three underlying lawsuits sprang from a 1995 umbrella lawsuit brought by twelve
3
international airline companies against the Immigration and Naturalization Service (“INS”).1 See
Air España v. Brien, No. 95-CV-1650, 1997 WL 469992 (E.D.N.Y. June 18, 1997). The Air
España litigation challenged the 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. § 1323 (the “Penalty Statute”).2 Id., at *10. The district court ruled in favor of the INS in
that action. See id., at *11-16. On appeal in 1999, this Court found that the airlines had not yet
exhausted their administrative remedies. See Air España v. Brien, 165 F.3d 148, 152-53 (2d Cir.
1999).3 Since that time, the BIA has made final administrative decisions on the airlines’ claims,
each of which affirmed the government’s imposition of fines against airlines that had transported
undocumented aliens into the United States in violation of 8 U.S.C. § 1323. The airlines
challenged those decisions in the three separate lawsuits leading to this appeal. Because each
1
The underlying actions all occurred prior to the establishment of the Department of Homeland
Security (“Homeland Security”) and the dissolution of the INS on March 1, 2003. The functions of the
INS have been distributed to various agencies within Homeland Security, namely Customs and Border
Protection and the United States Citizenship and Immigration Services. For the purposes of this decision,
however, all references will be to the original parties, which includes the INS.
2
The Penalty Statute provides:
It shall be unlawful for any person, including any transportation company, . . . to bring to
the United States from any place outside thereof (other than from foreign contiguous
territory) 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. . . . [S]uch person, or
transportation company, . . . shall pay to the Commissioner a fine of $3,000 for each alien
so brought . . ..
8 U.S.C. § 1323(a)-(b).
3
The Air España Court also affirmed the district court’s holding that the voluntary payment
doctrine barred the airlines’ recovery of fines assessed for transporting undocumented immigrant aliens
between 1988 and 1993. See Air España, 165 F.3d at 153-54.
4
lawsuit raises distinct issues and implicates a different set of statutes and regulations, each is
addressed separately in this opinion.
A. United Airlines: Pre-1996 Tourist Regulation and the Parole Policy
United Airlines (“United”) has challenged the INS’s imposition of a fine for bringing a
non-immigrant who did not possess a valid passport and/or visa needed for entry into the United
States. In 1994, United transported a Mongolian citizen into the United States for purposes of his
catching a connecting flight to Montreal. The INS deemed the Mongolian citizen inadmissible,
but it nonetheless paroled him into the United States so that he could travel on to Canada. The
INS then fined United for violating the Penalty Statute by “bring[ing] to the United States . . . any
alien who does not have a valid passport and an unexpired visa.” 8 U.S.C. § 1323(a)(1); see also
United Airlines, Inc. v. Jones, 337 F. Supp. 2d 406, 408 (E.D.N.Y. 2004).
United challenged the fine. It claimed that the Penalty Statute did not apply because the
alien qualified for an emergency waiver, and if the alien had received a waiver no fine could have
been imposed. At the time, the emergency waiver regulation stated that “[a] visa and a passport
are not required of a non-immigrant who” demonstrates an unforeseen emergency. 8 C.F.R. §
212.1(g) (pre-1996). The Penalty Statute prohibits transporting an undocumented alien “if a visa
was required under this chapter or regulations issued thereunder.” 8 U.S.C. § 1323(a)(1). Under
the controlling BIA precedent at the time, the relevant language of the emergency waiver
regulation—“are not required”—negated application of the Penalty Statute in those cases where
the visa requirement was waived because the alien demonstrated an unforeseen emergency.
United also argued that the INS had adopted a “policy” to parole aliens, such as the
Mongolian citizen, into the United States, rather than waive the visa requirement and admit them,
5
so as to preserve its ability to apply the Penalty Statute and collect a fine. It claimed that this
policy was illegal and violated the Administrative Procedures Act (the “APA”). As framed by
the district court, the question before it was “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.” United Airlines, 337 F. Supp. 2d at 409. The district court answered that question in the
affirmative, finding the INS’s challenged action lawful.
The district court first addressed United’s claim that the INS had adopted a “policy” of
paroling aliens into the United States rather than waiving the visa requirement “to legitimize the
imposition of fines which the grant of waivers would have precluded.” Id. The court found that
under the Penalty Statute, the airline incurs liability for the fine when it brings an undocumented
alien into the United States, notwithstanding any waiver or grant of parole that might occur after
the alien has arrived. It was prepared to grant summary judgment to the INS on this basis alone,
but it addressed the parties’ arguments nonetheless, in part to comment on the BIA’s
“questionable interpretations of the relevant regulations.” Id. at 411.
The BIA had held in its adjudications that, where a regulation purported to nullify the visa
requirement in the event of waiver, such as by stating that the alien “is not required to present a
visa if in his particular case a waiver of the visa requirement is granted,” the Penalty Statute did
not apply. Matter of Plane CCA “CUT-532", 6 I. & N. Dec. 262, 264 (BIA 1954). The BIA had
reached this conclusion based on the Penalty Statute’s restriction of its application to those cases
6
where a visa was required.4 The district court found this reasoning wholly unpersuasive, as it
believed that even in these “nullification” instances, a visa was “required” for purposes of
considering a particular case under the Penalty Statute. Otherwise, asked the court rhetorically,
“why was it necessary for those documents to be waived?” United Airlines, 337 F. Supp. 2d at
412.
Considering the text of the Penalty Statute, the court noted that the statute applied if a
visa was required under the Act or implementing regulations. The Act expressly requires non-
immigrants to be in possession of a “valid nonimmigrant visa,” 8 U.S.C. § 1182(a)(7)(B)(i)(II),
further providing that the visa requirement “may be waived . . . on the basis of unforeseen
emergency in individual cases,” id. § 1182(d)(4)(A). The district court found these statutory
provisions “unambiguous.” United Airlines, 337 F. Supp. 2d at 411. The court held that the BIA
had misinterpreted the phrase “or the regulations issued thereunder” in the Penalty Statute in a
manner that was “plainly inconsistent with the intent of Congress.” Id. The “unambiguous”
Penalty Statute established the liability of an airline “at the moment” it brings an undocumented
alien to the United States. Id. at 413. Such a reading, the court declared, “advances the
recognized intent of Congress in enacting it.” Id. The court applied the statutory and regulatory
scheme temporally, to wit: the airline violates the Penalty Statute and becomes liable for the fine
when it brings an undocumented alien to the United States, even though, at a later time, the INS
might waive the visa requirement with respect to that individual alien.
4
In contrast, the BIA had affirmed imposition of the fine where the relevant waiver regulation
did not purport to nullify entirely the visa requirement for those individuals qualified for the waiver.
Matter of Plane “CUT-604", 7 I. & N. Dec. 701, 702 (BIA 1958) (citing Matter of Ss. “Florida”, 6 I. &
N. Dec. 85 (BIA 1954)).
7
According to the district court, the BIA’s interpretation to the contrary “abort[ed] the
intent of Congress as clearly reflected” in the statutory text. Id. at 414. It cited to the House
Judiciary Committee report on the Immigration and Nationality Act (“INA”) of 1952, in which
the Committee stated that it had “substantially curtailed” the INS’s authority to waive the visa
requirement to “preclude the granting of blanket waivers of the documentary requirements on the
ground of the existence of an emergency.” Id. (quoting H.R. Rep. No. 82-1365, at 57, as
reprinted in 1952 U.S.C.C.A.N. 1653, 1706-07) (emphasis omitted). Furthermore, reasoned the
court, waiving the visa requirement is meant to benefit only the alien, not the airline. Drawing
on case law, it found its conclusion strengthened by Hamburg-American Line v. United States,
291 U.S. 420 (1934), and Peninsular & Occidental Steamship Co. v. United States, 242 F.2d 639
(5th Cir. 1957). In Hamburg, the Supreme Court—interpreting the Penalty Statute’s
predecessor—had held that a carrier’s liability remained unaffected by any subsequent
discretionary admission of the alien. 291 U.S. at 426. In Peninsular & Occidental, the Fifth
Circuit held that the grant of a waiver to an alien otherwise within the class of aliens who must
have a passport and visa to enter the United States did not negate the carrier’s liability for
bringing the alien to the United States without such documents. 242 F.2d at 641-42.
The district court found further support in the third clause of the Penalty Statute, which
states that the fine
shall not be remitted or refunded, unless it appears to the satisfaction of the Attorney
General that such person . . . prior to the departure of the vessel or 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 valid passport or visa was required.
8 U.S.C. § 1323(c). The court noted that the term “remit” means “to refrain from exacting a
8
payment,” and it determined that “a fine is either forgiven or refunded only if the carrier, prior to
departure, could not ascertain with reasonable diligence that the alien it was transporting required
a visa or a passport.” United Airlines, 337 F. Supp. 2d at 417.
On the question of whether it should defer to the BIA’s interpretation of the statute under
Chevron, the district court concluded that “[i]t is beyond cavil that the ‘intent of Congress is
clear’ and that should be the end of the matter.” Id. at 418. “[T]he construction placed upon the
assorted Regulations by the Board of Immigration Appeals has been clearly contrary to
[Congress’s] intent [and] must be, and hereby [is], rejected.” Id.
After noting that it had considered all of United’s other arguments and found them to be
without merit, the district court ruled in favor of the INS, upholding the fine assessed against
United for the transportation of an improperly documented Mongolian citizen. Id. at 419.
B. Air India: Lawful Permanent Residents
1. The 2002 Decision
Air India (“AI”) challenged the INS’s imposition of a fine for bringing a lawful
permanent resident (“LPR”) to the United States without the required reentry permit or visa. In
1993, AI transported from India to the United States an LPR who did not have the required
documentation. Under the relevant regulation, which allows INS officers to waive the visa
requirement if the alien shows good cause for doing so, 8 C.F.R. § 211.1(b)(3), INS officers
waived the requirement and allowed the LPR to enter the United States. The INS nonetheless
fined AI for violating the Penalty Statute. AI argues that “it should not be fined, due to the fact
that [the LPR] was granted a waiver of the documentary requirement.”
9
Contrary to its later approach in United Airlines, in recounting the history of the statutory
and regulatory framework governing visa waivers for LPRs, the district court wrote approvingly
of the BIA’s longstanding rule that when the relevant waiver regulation nullified the visa
requirement, the Penalty Statute did not apply. The district court observed that the BIA’s
approach “gave effect to the plain meaning of the statute and the Regulation.” Air India v. Brien,
No. 00-CV-1707, slip op. at 6 (E.D.N.Y. Feb. 14, 2002). It explained that the BIA had
consistently followed this approach through 1966—applying the Penalty Statute or not,
depending on whether the waiver regulation stated that aliens granted a waiver were not required
to present a visa.
In 1966, this “good-cause waiver” was amended to state that an LPR who satisfied the
district director “that there is good cause for his failure to present an immigration visa . . . may . .
. be granted a waiver of that requirement.”5 Id. at 6-7 (citing 31 Fed. Reg. 13387 (Oct. 15,
1966)). According to AI, between 1966 and 1988 the INS did not fine airlines pursuant to the
Penalty Statute in those cases where it granted a waiver. AI believed that the INS had “radically
changed” its enforcement practices, however, when it created a National Fines Office in 1988
and allegedly began fining airlines even when it waived the visa requirement for good cause. Id.
at 7.
Before the National Fines Office and the BIA, AI argued that the regulations required an
LPR to present a visa except when the LPR was able to show good cause, and that the LPR it had
brought to the United States, who had shown good cause and received a waiver, was therefore
not required to present a visa. See id. at 8. That is, because the LPR was ultimately not required
5
The current regulation is substantially similar to the 1966 version.
10
to present a visa, the Penalty Statute did not apply. Before the BIA had issued a decision,
however, AI (along with eleven other airlines) filed the 1995 lawsuit. Id. at 9. After this Court
dismissed the 1995 lawsuit as unripe, see Air España v. Brien, 165 F.3d 148, 151-53 (2d. Cir.
1998), AI appeared again before the BIA. At that point, for the first time, it challenged the 1966
regulation as having violated the APA. Air India, No. 00-CV-1707, slip op. at 12. The BIA
found the 1966 regulation valid and affirmed the imposition of the fine, interpreting the
regulation as not exempting aliens from visa requirements, even if they were granted post-arrival
waivers. Id. at 13. Once again before the district court, AI argued that (1) the fines were invalid
because LPRs granted a waiver were exempt from the visa requirement, and (2) a 1998
amendment to the visa regulation was invalid. Id. at 14.
The district court began by commenting that if it “were to consider only the text of the
[1966] Regulation, there could be little doubt that the fines imposed by the INS were proper.” Id.
at 16. It agreed with the INS that nothing in the 1966 regulation exempted aliens later granted
waivers from the visa requirement, and it found unpersuasive AI’s argument that a 1997 revision
of the regulation reflected a preexisting understanding that the regulation did so. Thus, “if the
[district court] were to consider only the plain language of the INA and the Regulation, the fines
would appear to have been properly levied.” Id. at 21-22.
The court noted, however, that it was “not constrained to consider only the terms of the
INA and the Regulation.” Id. at 22. If the 1966 regulation had not been properly promulgated
under the APA, it observed, it could not be enforced. In that event, the 1957 version of the
regulation would remain effective, and the 1957 version did exempt from the visa requirement
any alien granted a good-cause waiver. Id. The parties agreed that the 1966 regulation had not
11
been subject to a notice-and-comment process, and the Attorney General had explained the
decision not to conduct notice and comment because the amendment was meant to benefit the
“persons affected thereby.” Id. at 23 (internal quotation marks omitted). The district court found
itself at a loss to understand how the agency could have thought that the 1966 amendment, which
removed the exemption, benefitted LPRs. Id. Furthermore, the regulation affected airlines, and
they did not “benefit” from it. Id. at 24.
The district court concluded, therefore, that the Attorney General did not have authority
to promulgate the 1966 regulation without notice and comment. It dismissed the INS’s argument
that the agency had invoked the “good cause” exception to the notice-and-comment requirement,
noting that the government had made no showing that compliance with the requirement was
impractical or unnecessary in that case. Id. at 26 n.21. Because the agency had not complied
with the APA, the 1966 regulation was void, and the district court applied the 1957 regulation
instead. See id. at 27. Under the BIA’s longstanding interpretation of that regulation, airlines
were not subject to fines when an LPR was granted a waiver of the visa requirement.
Finally, turning to AI’s challenge to the 1998 regulation, the district court dismissed the
challenge as unripe. Id. The 1998 regulation had not been enforced against AI, and the INS had
indicated that it had no plans to enforce it in the future. Id. at 29.
2. The 2003 Reconsideration Decision
After the district court granted judgment to AI, the INS moved for reconsideration under
Rule 59. For the first time, the INS argued that AI’s challenge to the validity of the 1966
regulation was time-barred because it had not been brought within six years of the promulgation
of the regulation.
12
The district court acknowledged that the federal statute of limitations for claims against
the government is six years, and it described the defense as unwaivable because “compliance
with the statute is a jurisdictional predicate for the court’s ability to entertain the claim.” Air
India v. Brien, 261 F. Supp. 2d 134, 137 (E.D.N.Y. 2003). The district court cited several Courts
of Appeals decisions addressing the same question that all found that claims based on procedural
defects in the promulgation of a regulation accrue when the regulation is published in the Federal
Register. See, e.g., Dunn-McCampbell Royalty v. Nat’l Park Serv., 112 F.3d 1283, 1287 (5th
Cir. 1997); Commonwealth of Penn. Dep’t of Welfare v. U.S. Dep’t of HHS, 101 F.3d 939, 947
(3d Cir. 1996). Here, the regulation was published in 1966, and the period of limitations
governing challenges to the regulation expired long before AI brought its claim. Because
compliance with the six-year statute of limitations was jurisdictional, the district court found it
appropriate to grant the INS’s motion for reconsideration notwithstanding its failure to raise the
defense at summary judgment.
Rejection of AI’s procedural challenge to the 1966 regulation did not, however, dispose
of AI’s substantive challenge. The district court noted that it had already considered and rejected
several of AI’s claims regarding the meaning of the 1966 regulation, but it had not “consider[ed]
[AI’s] claim that imposition of fines under the regulation was improper in that it violated the
stated intent of the Attorney General in promulgating the amendment.” Id. at 139. The 1966
regulation was accompanied by a statement that the regulation was not subject to notice and
comment because it “confers benefits on persons affected thereby.” Id. (internal quotation marks
omitted). The district court determined that “[t]his clear expression of intent refutes the
argument that the regulation was intended to impose liability on the airlines when none had
13
existed under the prior version of the regulation as amended in 1957.” Id. Moreover, the INS
had not imposed fines under the 1966 regulation for 22 years, and the agency could not explain
why it began imposing fines in 1988. To the extent that any evidence of the INS’s intent existed,
it was in the form of an internal memorandum directing staff to begin enforcing the 1966
amendment against airlines and explaining that the agency was shifting policy to maximize
revenues. Such motivation, found the court, was not a “proper basis” for a change in
enforcement policy. Id. at 140. The district court therefore concluded that “the INS’s decision to
begin fining air carriers some twenty-two years after the 1966 regulation was promulgated was
arbitrary, capricious and an abuse of discretion, and the fines imposed thereunder must still be
vacated.” Id.
Finally, because the period of limitations for challenging regulations begins accruing at
the time of publication in the Federal Register, the district court reversed its earlier finding that
AI’s challenge to the 1998 regulation was unripe, at least insofar as AI was challenging the 1998
regulation on procedural grounds for lack of a notice-and-comment period. The district court
determined that the 1998 regulation was not merely interpretive, as even if it were designed to
correct a technical error in the 1997 amendment of the regulation, “its correction plainly altered
the substantive rights of those affected by it.” Id. at 141. In response to the INS’s invocation of
the good-cause exception,6 the district court found that the INS had failed to show any good
cause existed to dispose of the notice-and-comment requirement. Because no exception applied
6
The INS invoked the “good cause” exception, found in 5 U.S.C. § 553(d)(3), which excludes a
substantive rule from “required publication or service . . . as otherwise provided by the agency for good
cause found and published with the rule.”
14
and the 1998 regulation had therefore been issued in violation of the APA, the district court
declared it void.
The INS filed a notice of appeal, but the parties later stipulated to dismissal of the appeal
and AI’s cross-appeal.
3. The 2006 Rule 60 Decision
Following its March 2003 decision in the Air India case, the district court issued its
opinion in the United Airlines case. As explained supra, in its September 2004 United Airlines
decision the district court held that airlines incur liability for a fine under the Penalty Statute
upon bringing an undocumented alien to the United States, notwithstanding any subsequent
waiver or parole and regardless of the precise language used in the visa requirement
implementing regulations. In so ruling, the court found the BIA’s interpretation of the statutes
and regulations flawed. As a result of the United Airlines decision, the INS moved on December
1, 2004, pursuant to Federal Rule of Civil Procedure 60(b)(6) for relief from the March 2003 Air
India decision.
The district court noted that the INS motion potentially implicated two provisions of Rule
60. The first, Rule 60(b)(1), allows for relief based on mistake, inadvertence, surprise, or
excusable neglect, and it requires that the movant file the motion within one year of the
judgment. The second, Rule 60(b)(6), allows for relief based on any other reason justifying
relief, and it imposes no time limit on the motion. AI argued that the INS’s motion was properly
characterized as a Rule 60(b)(1) motion and that it was therefore untimely, not having been
brought within one year of the March 2003 judgment.
15
The district court found that because the parties had not made arguments related to the
Penalty Statute, it had not “erred” in focusing only on the regulations thereunder; the INS was
therefore not seeking relief based on “judicial error” under Rule 60(b)(1). Air India, Ltd. v.
Brien, 239 F.R.D. 306, 313-14 (E.D.N.Y. 2006). It further found that even if some of the INS’s
arguments were related to judicial error, the INS had also made claims that “properly fall under a
Rule 60(b)(6) motion.” Id. at 314. For example, the INS asserted that “the conflicting opinions
issued by [the district court] have created confusion in the law” and would make it more difficult
for the INS to enforce immigration laws. Id. The court agreed with the INS that the judgment
had the potential for creating extreme hardship and that “the interest of justice require[d]
reconsideration” of the March 2003 order. Id. It therefore found that the motion was properly
brought under Rule 60(b)(6) (and was thus timely).
On the merits, the district court found that its September 2004 United Airlines decision
“render[ed] the March 13 [Air India decision] moot.” Id. at 315. The court reasoned that
because it had found that the Penalty Statute did not allow for a “blanket waiver of fines” in
those instances where an alien was granted a waiver of the visa requirement, any regulations
purporting to effect such a waiver were “void.” Id. The court recognized that its focus in Air
India on the Attorney General’s intent in promulgating the 1966 regulation “missed the point,”
because regardless of the Attorney General’s intent, the regulation could not be construed “as
prohibiting the INS from imposing fines on carriers who bring to the United States aliens without
the required documentation, even if those aliens are subsequently paroled or receive a waiver,” as
such a construction would violate the Penalty Statute. Id.
16
The court concluded that the inconsistency between the Air India and United Airlines
decisions, as well as the substantial overlap in parties between the two lawsuits and the effect the
inconsistency would have on the government’s ability to “control its borders . . . constitute[d] the
‘extraordinary circumstances’ necessary to invoke relief under [Rule] 60(b)(6).” Id. at 316. It
therefore granted the INS’s motion for relief from the March 2003 judgment.
The government requested an order that explicitly laid out the result of the district court’s
Air India decision and in that order, issued in January 2007, the district court clarified that in
granting the INS’s Rule 60 motion for relief from judgment, it had “implicitly grant[ed] the
government’s underlying motion for summary judgment and deni[ed] the airlines’ underlying
cross-motion for summary judgment.” Air India, Ltd. v. Brien, No. 00-CV-1707, slip op. at 4
(Jan. 25, 2007).
C. Finnair: The Post-1996 Tourist Regulation
Finnair challenged the INS’s 1996 amendment of the regulation governing visa waivers
for tourists who were able to show “an unforeseen emergency.” Prior to 1996, the relevant
regulation stated that “[a] visa and a passport are not required of a nonimmigrant” who could
show an emergency. 8 C.F.R. § 212.1(g) (1995). The regulation, which formed the basis of
United’s defense in its separate lawsuit, had been interpreted as not permitting the INS to impose
a fine when the alien was later granted a waiver. The pre-1996 version of the regulation was
consistent with a parallel State Department regulation, 22 C.F.R. § 41.2(j), which included a
similar statement. In 1996, the INS amended the regulation to state that “[a] nonimmigrant
seeking admission to the United States must present an unexpired visa” and that the district
director could waive that requirement if the nonimmigrant showed an emergency. 8 C.F.R. §
17
212.1(g) (1997). This language modified the regulation so that the visa requirement was
preserved even when the alien later received a waiver. The State Department did not amend its
own parallel regulation to reflect these changes until 1999, and it did not seek notice and
comment in connection with that amendment.
Finnair was fined under the regulatory scheme in effect between 1996 and 1999. It
argued that the INS’s 1996 amendment was void because it was not jointly promulgated with the
State Department, as required by statute. Finnair further claimed that the 1996 INS version
conflicted with the pre-1999 parallel State Department regulation. The BIA upheld the fine,
finding that the 1996 amendment satisfied the joint action requirement because the State
Department had delegated its rulemaking authority with respect to tourist visa waivers to the
Attorney General. The BIA further held that if the INS regulation conflicted with the State
Department regulation, the INS regulation controlled.
Without delving into the BIA’s reasoning, the district court granted summary judgment to
the INS on December 27, 2006, based upon its United Airlines decision. See Finnair OY v.
Brien, No. 02-CV-0900, slip op. at 1 (E.D.N.Y. Dec. 27, 2006).
II. DISCUSSION
A. United Airlines
The United Airlines case presents two questions: (1) whether the district court erred
when it ruled that the Penalty Statute unambiguously imposes a fine on a carrier transporting an
undocumented alien, notwithstanding any subsequent receipt of a visa waiver by that alien and
regardless of the language of any applicable regulation; and (2) whether the INS acted arbitrarily
18
when it paroled aliens into the United States rather than granting them a visa waiver, thereby
preserving its ability to fine the carrier for having brought the aliens to the United States.
1. Validity of the BIA Rule
The first issue concerns the validity of the BIA’s longstanding rule, originating through
its own adjudications, that when (1) a visa waiver regulation states that an alien is not required to
present a visa when they receive a post-arrival visa waiver, and (2) an alien receives a waiver
pursuant to that regulation, the carrier may not be fined under the Penalty Statute, 8 U.S.C. §
1323(a)-(b), for having brought the alien to the United States (the “BIA Rule”). It was this BIA
Rule that the district court invalidated, as inconsistent with the Penalty Statute, in United
Airlines, and it was on the basis of United Airlines that the district court reversed itself in Air
India and also decided Finnair. Our decision, therefore, as to the validity of this BIA Rule will
determine our approach to all three cases.
To recap, the district court held that any regulation (or interpretation thereof) exempting
an alien from the visa requirement, thus exempting the airline from the Penalty Statute based on a
post-arrival waiver, is inconsistent with the Penalty Statute and Congress’s intent in enacting it.
On appeal, the airlines challenge this holding. They distinguish Hamburg, relied on by the
district court, in which the Supreme Court held that a discretionary admission of an alien lacking
the required documentation has no effect on the fine to be imposed on a carrier, see 291 U.S. at
426, by arguing that the admissions here were not discretionary. The airlines believe that the
aliens in these cases were “entitled” to admission because they satisfied the statutory requisites
(i.e., a showing of good cause or an unforeseen emergency), and they claim that because the
aliens were entitled to admission, the Penalty Statute does not apply.
19
The airlines further argue that the district court misread Congress’s intent. They assert
that the district court’s interpretation of the statutory scheme would force airlines to risk a fine
when they transport aliens “who comply with the regulation [exempting them] from the visa
requirement.” They contend that the BIA decisions interpreting the regulations and the statute in
a way that comports with the airlines’ position should be respected because those decisions “are
wholly consistent with Hamburg and the 1952 statutory and regulatory scheme.” Finally, the
airlines argue that Congress’s inaction in the face of the BIA’s interpretation of the regulations
and statutes involved here reflects its acquiescence in that interpretation.
The INS on the other hand asserts the propriety of the district court’s reliance on
Hamburg-American Line v. United States, 291 U.S. 420 (1934), and Peninsular & Occidental
Steamship Co., 242 F.2d 639 (5th Cir. 1957), in support of its interpretation of Congress’s intent.
That is, Congress, through the Penalty Statute, 8 U.S.C. § 1323, intended that a fine be levied
against a carrier for bringing to the United States an alien who did not possess the proper
documentation, regardless of whether or not a post-arrival waiver was issued.
We conclude that the district court erred when it invalidated the BIA Rule. We also
conclude that the district court should have deferred to the agency’s interpretation of the Penalty
Statute.
a. Ambiguity of the Penalty Statute
The district court’s first error was finding that the Penalty Statute unambiguously imposes
liability on a carrier at the moment the carrier transports an undocumented alien, notwithstanding
any subsequent waiver.
20
The initial step in determining whether a statute is ambiguous is to begin with the
statute’s text. Carcieri v. Salazar, 129 S. Ct. 1058, 1063 (2009); see also Woods v. Empire
Health Choice, Inc., 574 F.3d 92, 98 (2d Cir. 2009) (“As always, we begin with the text of the
statute.”). The district court, to find the statute unambiguous, relied instead on Supreme Court
and Fifth Circuit case law, four words in a 1966 amendment to the relevant regulation, and the
Penalty Statute’s restricting of refunds to those instances where the carrier exercised due
diligence. None of these sources render the Penalty Statute unambiguous.
The court cited Hamburg for the proposition that liability for the fine obtains upon the
transportation of the alien into the United States, notwithstanding any subsequent discretionary
relief. But Hamburg does not control in this case. In Hamburg, the Supreme Court held that a
carrier was liable for a fine despite the alien’s later receipt of a discretionary admission by the
Secretary of Labor. 291 U.S. at 425-26. The Court found that the penalty statute applicable at
the time “preserve[d] the fine against any discretionary admission.” Id. at 426. The problem in
applying Hamburg’s analysis to this case is that the penalty statute then in effect categorically
prohibited carriers from bringing an alien who had no visa to the United States. Id. at 421 n.1.
As the Supreme Court concluded, the Penalty Statute applicable to carriers in 1934 “ma[de] it
clear that the occasion for the fine is the bringing in of the alien without an unexpired visa.” Id.
at 425.
The Penalty Statute at issue in these cases, however, restricts its prohibition to those
instances where “a visa was required under this chapter or regulations issued thereunder.” 8
U.S.C. § 1323(a)(1). Certain “regulations issued thereunder,” moreover, expressly state that
certain classes of aliens are not “required” to present a visa. See, e.g., 8 C.F.R. § 212.1(g). The
21
textual differences between the current Penalty Statute and the one at issue in Hamburg are
precisely the crux of the interpretive dilemma that we must address.
Reliance on the Fifth Circuit’s Peninsular & Occidental decision is similarly misplaced.
In the decision, a steamship company challenged the fine incurred under § 273 of the
Immigration and Nationality Act of 1952 for bringing into the United States four aliens that did
not possess valid visas. 242 F.2d 639, 640 (5th Cir. 1957). In its decision, the court referenced
broad language regarding Congress’s intent “to compel carriers, under the pain of penalties
which increase vigilance, to police enforcement of and compliance with many parts of the
immigration laws.” Id. at 641. There was no regulation in place at the time, however, that
removed the visa requirement from an alien who was granted a post-arrival waiver. See 8 C.F.R.
§ 212.1(g) (1995). Instead, Peninsular & Occidental was interpreting the 1952 Penalty Statute
directly. 242 F.2d at 641. The Fifth Circuit had no occasion to consider the effect of a regulation
exempting aliens from the visa requirement when it upheld the fine on the carrier.
These cases, relied upon by both the district court and the INS in its arguments to us, do
not answer the question here, which is whether imposing the fine provided for in the Penalty
Statute is consistent with regulations exempting certain groups of aliens from the visa
requirement based on a post-arrival waiver. When considered in relation to that question, the
statutory language - “if a visa was required under this chapter or regulations issued thereof” - is
ambiguous. Once a statute is determined to be ambiguous, the court must look to the agency
interpretation of the statutory provision, to consider the level of deference due the agency’s
interpretation of the Penalty Statute. Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49,
55 (2d Cir. 2004) (“If we decide that we are to defer, we must then decide the appropriate level
22
of deference.”); see also Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004)
(“[D]eference to [an agency’s] statutory interpretation is called for only when the devices of
judicial construction have been tried and found to yield no clear sense of congressional intent.”);
Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir. 2000) (“[W]here the relevant statutory provision
is silent or ambiguous, ‘a court may not substitute its own construction of a statutory provision
for a reasonable interpretation made by the administrator of an agency.’” (quoting Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 843-44 (1984))).
b. The Level of Deference Due to the Agency’s Interpretation of the Penalty
Statute
Once we determine that a statute is ambiguous, we then consider the level of deference
warranted by an agency’s interpretation of the statute. Kruse, 383 F.3d at 55.
The BIA Rule warrants Chevron deference. The BIA interprets the Penalty Statute to
mean that the issuance of certain post-arrival waivers—specifically, those which explicitly
provide that a visa is “not required” if the waiver is issued, see, e.g., 8 C.F.R. § 212.1(g)
(1995)—results in the carrier avoiding a basis for being fined. This interpretation of the Penalty
Statute by the BIA, while not evolved through a traditional notice-and-comment period, is still
worthy of our deference. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 317 n.4 (2d
Cir. 2007) (en banc) (Katzmann, J., concurring) (“[T]he BIA should be accorded Chevron
deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-
case adjudication.” (internal quotation marks omitted)). To the extent the BIA Rule includes an
interpretation of a regulation, similar deference is warranted. See Auer v. Robbins, 519 U.S. 452,
461 (1997) (An agency’s interpretation of its own regulations is “controlling unless plainly
erroneous or inconsistent with the regulation” (internal quotation marks omitted)).
23
Applying Chevron deference, we conclude that the BIA Rule is reasonable. The BIA
Rule conditions the application of the Penalty Statute on whether the regulations entirely exempt
from visa requirements the transported aliens who are in receipt of a waiver. This interpretation,
while not compelled by the statutory and regulatory scheme, is certainly plausible and rational:
the Penalty Statute provides for the imposition of a fine if a visa were “required” pursuant to
regulations, and the regulations at issue in turn provide that a visa is “not required” if a waiver
were granted.
Moreover, we note that neither party disputes that the BIA has for decades interpreted the
Penalty Statute and corresponding INS regulations to exempt carriers from liability when the
alien is granted certain post-arrival waivers. The BIA’s consistency in applying the BIA Rule has
particular force because it is “a contemporaneous construction of a statute by the [individuals]
charged with the responsibility of setting its machinery in motion, of making the parts work
efficiently and smoothly while they are yet untried and new.” Aluminum Co. of Am. v. Cent.
Lincoln Peoples’ Util. Dist., 467 U.S. 380, 390 (1984) (internal quotation marks omitted). It
might therefore “carry the day against doubts that might exist from a reading of the bare words of
a statute.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 414 (1993) (internal quotation
marks omitted).
Indeed, Congress’s repeated amendment of the relevant provisions of the statute “without
expressing any disapproval” reinforces the strength of the BIA’s interpretation, because it “is
persuasive evidence that the [Agency’s] interpretation is the one intended by Congress.”
Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (internal quotation
marks omitted); Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 130 (2d Cir. 2004), rev’d
24
on other grounds, 551 U.S. 158 (2007). Since 1952, Congress has amended the section
containing the statutory waiver provisions for non-immigrants, 8 U.S.C. § 1182, at least four
times (in 1965, 1976, 1980, and 1990). Congress has also amended the Penalty Statute four
times, and none of those amendments modified the language at issue in this case.
The difficulty with the BIA rule concerns the counterintuitive analysis by which a post-
arrival determination by an INS officer to grant a waiver may retroactively modify the alien’s
pre-arrival need to present a visa. This, however, does not lessen the reasonableness of the BIA’s
interpretation of the Penalty Statute. Retroactivity is not particularly unusual in regulatory law
nor in the immigration context. See Orr v. Hawk, 156 F.3d 651, 654 (6th Cir. 1998) (“So long as
a change in a regulation does not announce a new rule, but rather merely clarifies or codifies an
existing policy, that regulation can apply retroactively.”). If the INS finds that application of the
BIA Rule creates a disincentive for airlines to make a reasonable, good faith effort to ensure that
every alien has a visa prior to arrival in the United States, it may amend the regulations so that a
post-arrival waiver does not nullify the visa requirement.
In sum, we conclude that the language of the Penalty Statute is ambiguous, and the
agency’s interpretation of the statute is reasonable. Accordingly, we defer to the agency’s
interpretation under Chevron and uphold the BIA Rule.
2. Reasonableness of the BIA’s paroling of aliens
Because we uphold the BIA Rule, we must next address whether the agency acted
unreasonably in paroling aliens into this country—instead of granting them a post-arrival
waiver—in order to preserve its ability to fine the airlines. The district court found that the INS
25
had acted within its authority in paroling aliens rather than waiving the visa requirement. We
agree.
As an initial matter, the airlines have presented no support for their claim that, in these
cases, the INS first determined that the aliens were eligible for a waiver, and only then granted
parole rather than a waiver. Though United points to its Rule 56.1 statement for support, its Rule
56.1 statement asserts only that when the aliens in question arrived in the United States, each
“gave an explanation for the absence of a visa or a passport” of the sort usually accepted by the
agency, but that each was granted parole rather than a waiver despite having presented such an
explanation. The Rule 56.1 statement did not assert that the INS district director was “satisfied”
that the alien’s explanation constituted an emergency, 8 C.F.R. § 212.1(g), and the INS has not
conceded that the agency first found the aliens eligible for a waiver and only then granted parole
instead.
The real question, therefore, is whether the INS abused its authority in employing its
parole power rather than its waiver power so as to preserve its ability to fine the airlines. The
airlines contend that the agency had an improper motive for its change in policy. We disagree.
A 1994 policy directive stated that the agency’s goal was to “maximize revenues and create a
deterrent against violations.” Memorandum from George Wetteland, Acting APD, Immigration
& Naturalization Serv., Change in Policy Regarding Carrier Fines when a Visa Waiver is
Granted on Form I-193 (Aug. 24, 1994). Congress had recently given the INS power to retain
the monies collected from fines, 8 U.S.C. § 1356; see also INS Fines Training Program, J.A. 105
(detailing INS policy on collecting fines under § 273), most assuredly knowing that the financial
stake would influence the manner which the INS exercised its enforcement discretion. The
26
resulting INS policy change of paroling aliens, versus granting waivers, is thus not an improper
motive. However repugnant the idea of financial drivers may be to United, there is no authority
for United’s claim that such motives are improper or contrary to Congress’s intent.
United also argues that the INS’s shift in its enforcement policy was a legislative act that
required notice to carriers under the APA “that the very same aliens it had been transporting
since 1958 would no longer be admitted but paroled,” but that claim is also meritless. Unless a
statute constrains an agency’s exercise of its enforcement powers, the agency possesses broad
discretion in how it enforces statutory and regulatory law. See Ass’n of Irritated Residents v.
EPA, 494 F.3d 1027, 1033 (D.C. Cir. 2007) (holding that, because the statute did not “give any
indication that violators must be pursued in every case, or that one particular enforcement
strategy must be chosen over another” and “provide[d] no meaningful guidelines defining the
limits of [the agency’s] discretion,” the challenger had failed to rebut the presumption that the
enforcement decision was “committed to the discretion of the agency”); cf. Heckler v. Chaney,
470 U.S. 821, 834-35 (1985) (“If [Congress] has indicated an intent to circumscribe agency
enforcement discretion, and has provided meaningful standards for defining the limits of that
discretion, there is ‘law to apply’ under [the APA], and courts may require that the agency follow
that law; if it has not, then an agency refusal to institute proceedings is a decision ‘committed to
agency discretion by law’ within the meaning of [the APA].”).
Here, when making parole decisions, the INS exercises a “broad discretionary power”
pursuant to “[t]he unusually broad Congressional power over the admission of aliens into the
United States.” Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982). Those decisions “must be
viewed at the outset as presumptively legitimate and bona fide in the absence of strong proof to
27
the contrary,” a showing that poses a “heavy [burden]” for any alien challenging a parole
decision. Id. at 212-13. Similarly, the waiver statute states only that the visa requirement “may
be waived” on the basis of an unforeseen emergency. 8 U.S.C. § 1182(d)(4)(A) (emphasis
added). It does not require a waiver or otherwise restrict the executive’s exercise of its
enforcement discretion.
With respect to United Airlines, therefore, we reverse the district court’s ruling declaring
the BIA Rule invalid, but we affirm the district court’s judgment in favor of the INS on the
grounds that the agency permissibly chose from among the various enforcement mechanisms
available to it when it paroled aliens into this country rather than granted them visa waivers.
B. Air India
The Air India case likewise presents two distinct questions. The first is whether the
district court made a procedural error when it granted the INS’s Rule 60(b) motion, because (a)
the motion was untimely, or (b) the INS had not shown the type of extraordinary circumstances
warranting such relief. The second question is whether the district court erred when it granted
the motion, in particular (a) when it decided that the INS’s post-1988 enforcement of the 1966
lawful permanent resident (“LPR”) visa waiver regulation was arbitrary, and (b) when it decided
that the INS’s 1998 amendment of the LPR visa waiver regulation was valid notwithstanding that
it was promulgated without notice-and-comment. We review the district court’s Rule 60
decision for abuse of discretion. Gey Assocs. Gen. P’ship v. 310 Assocs. (In re 310 Assocs.), 346
F.3d 31, 34 (2d Cir. 2003) (per curiam). Because we find that the district court committed
procedural error in granting the Rule 60(b) motion, we do not reach the second, substantive,
28
question, as the government previously dismissed its appeal of the district court’s underlying
2003 decision.
1. Proper characterization of the Rule 60 motion
The airlines’ first challenge to the Rule 60 motion is that it was untimely, arguing that it
was actually a Rule 60(b)(1) motion, which must be brought within one year of the judgment.
The INS contends that the motion was properly brought under Rule 60(b)(6), and therefore was
not subject to the one-year limit.
Rule 60(b)(1) allows for relief from judgment based on “mistake, inadvertence, surprise,
or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Rule 60(b)(1) is “available for a district court to
correct legal errors by the court.” In re 310 Assocs., 346 F.3d at 35; see also Parks v. U.S. Life &
Credit Corp., 677 F.2d 838, 839 (11th Cir. 1982) (per curiam) (“The ‘mistakes’ of judges may be
remedied under this provision.”). Rule 60(b)(6), on the other hand, allows for relief from
judgment based on “‘any other reason justifying relief.’” Smith v. Sec’y of HHS, 776 F.2d 1330,
1333 (6th Cir. 1985) (quoting Fed. R. Civ. P. 60(b)(6)) (“[A] Rule 60(b)(6) motion must be
based upon some reason other than those stated in clauses (1)-(5).” (internal quotation marks
omitted)). The two provisions are exclusive and “an appellant cannot circumvent the one-year
limitation [of Rule 60(b)(1)] by invoking the residual clause (6) of Rule 60(b).” Serzysko v.
Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir. 1972) (per curiam); see also Warren v.
Garvin, 219 F.3d 111, 114 (2d Cir. 2000).
Courts of Appeals do not appear to have addressed the precise situation presented here:
the district court’s issuance of conflicting decisions in two separate lawsuits with substantial
overlap in parties and substantial similarity in subject matter. The district court found that the
29
motion was properly brought under Rule 60(b)(6) because (1) the parties’ failure to challenge the
BIA Rule meant that the court’s failure to address that issue was not “judicial error,” and (2) the
INS had also made claims that “properly [fell] under a Rule 60(b)(6) motion,” such as its claim
that the inconsistency in the decisions would make border enforcement more difficult for the
government. Air India, Ltd., 239 F.R.D. at 313-14. Indeed, the Fifth Circuit has suggested that
inconsistency claims, where meritorious, are properly brought under Rule 60(b)(6). See Batts v.
Tow-Motor Forklift Co., 66 F.3d 743, 748 n.6 (5th Cir. 1995) (noting that “a change in decisional
law” might sometimes constitute “an extraordinary circumstance” under Rule 60(b)(6), such as in
the habeas context or “where two cases arising out of the same transaction result in conflicting
judgments”).
We find that the motion was timely filed under Rule 60(b)(6) to the extent that it was
based on the potential hardship resulting from inconsistent judgments. Such a claim is not easily
categorized as “mistake” or “inadvertence” under Rule 60(b)(1), and it should therefore be
allowed to proceed under Rule 60(b)(6).
2. Whether the Motion was Properly Granted
The second question is whether the Rule 60 motion raised issues sufficiently
extraordinary to justify relief. Before the district court, the INS argued for relief on three
grounds: (1) the district court’s initial decision had been incorrect; (2) the district court’s initial
decision prevented the INS from fining airlines; and (3) the conflict between Air India and
United Airlines created confusion in the law, thereby making border enforcement more difficult.
The INS claimed that the interest in finality did not outweigh these considerations, as the Air
30
India and United Airlines cases were part of “an interconnected trilogy of cases” that had all once
been part of the same case.
Rule 60(b)(6) “confers broad discretion on the trial court to grant relief when appropriate
to accomplish justice.” Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986) (internal quotation
marks omitted). Relief is warranted “where there are extraordinary circumstances, or where the
judgment may work an extreme and undue hardship, and should be liberally construed when
substantial justice will thus be served.” Id. (internal citations and quotation marks omitted). We
have warned, however, that a Rule 60 motion “may not be used as a substitute for appeal” and
that a claim based on legal error alone is “inadequate.” Id. at 107; see also Marrero Pichardo v.
Ashcroft, 374 F.3d 46, 56 (2d Cir. 2004) (“[A] mere change in decisional law does not constitute
an ‘extraordinary circumstance’ for the purposes of Rule 60(b)(6).”). In the Rule 60(b)(1)
context, we have also noted that Rule 60 does “not allow district courts to indulge a party’s
discontent over the effects of its bargain,” such as where the party has made a “deliberate,
strategic choice to settle.” Andrulonis v. United States, 26 F.3d 1224, 1235 (2d Cir. 1994)
(internal quotation marks omitted).
We reverse the district court’s grant of the INS’s Rule 60(b)(6) motion on procedural
grounds. The conflict between Air India and United Airlines was not, by itself, sufficiently
“extraordinary” to justify reopening the judgment in Air India, especially given that such conflict
resulting from a subsequent Circuit Court or Supreme Court decision would very likely not
suffice to grant Rule 60(b)(6) relief. See Batts, 66 F.3d at 749 (“A circuit court’s announcement
of a new rule of federal law, like a Supreme Court pronouncement, is similarly insufficient
without more to justify Rule 60(b)(6) relief.”). Thus, if this Court had issued an opinion in
31
United Airlines on appeal, that opinion would likely not, by itself, provide a basis for revisiting
the Air India decision. The INS’s argument, which is based on mandatory authority from the
Circuit but only on persuasive authority from the district court, therefore fails.
With respect to the INS’s claim that the district court’s initial decision prevents it from
collecting fees and that the airlines accordingly are unjustly enriched, the proper remedy for that
problem was direct appeal. The INS knowingly stipulated to dismissal of its appeal, and it
thereby gave up any claim it had to the fees it lost as a result of the district court’s decision. We
should not allow it to use the Rule 60 motion “as a substitute for appeal,” Matarese, 801 F.2d at
107, particularly given its “deliberate, strategic choice” to dismiss that appeal, Andrulonis, 26
F.3d at 1235 (internal quotation marks omitted).
The INS focuses most on the “extreme hardship” it claims would result from the district
court’s divergent decisions and the ensuing legal confusion. Whereas the United Airlines
holding gave the INS virtually unfettered discretion to fine airlines regardless of whether the
non-immigrant alien was granted a post-arrival waiver, Air India held that (1) the INS could not
impose fines where the alien was granted a waiver pursuant to the 1966 LPR regulation, and (2)
the 1998 regulation was void because the agency had not complied with the APA. For decades
prior to the United Airlines decision, the INS enforced the Penalty Statute differently depending
on whether the relevant visa waiver regulation nullified the visa requirement. In other words, the
legal landscape facing the district court when it ruled on the Rule 60 motion—where the INS was
able to impose fines in some circumstances but not others, depending on the regulation being
enforced—was no different from the legal landscape that had existed for decades. The INS has
shown itself quite capable of amending its regulations when it found this patchwork approach
32
unworkable, see 8 C.F.R. § 212.1 (listing amendments of the section in the Federal Register,
currently numbering over 30), and it offers no explanation for why it cannot do so now. If the
INS needs the 1998 regulation that was invalidated by the district court so that it can impose
fines on airlines even when the alien receives a waiver, it may readopt the regulation after notice
and comment. There is nothing “extreme” about the fact that the agency must respond to judicial
decisions invalidating its regulations either by appealing these decisions or changing its
regulations.
The agency’s grounds for the Rule 60(b)(6) motion—which essentially boil down to a
claim that the decision was wrong—are not sufficiently extraordinary to justify reopening a
closed case in which the agency voluntarily stipulated to dismiss its appeal. This is especially so
here where the two cases were related and any appeal of Air India could have been stayed and
later consolidated with an appeal in United Airlines. We hold that the district court abused its
discretion in granting the Rule 60(b)(6) motion. Accordingly, we reverse the Rule 60(b) motion
on procedural grounds and decline to reach the merits of the district court’s March 2003 Air
India decision.
C. Finnair
In Finnair, we are presented with what appears to be a novel question of administrative
law: the meaning of the “joint action requirement” giving the Attorney General and the Secretary
of State joint authority over visa waivers.
1. Whether the 1996 INS Amendment Violated the Joint Action Requirement
The airlines challenged a 1996 amendment to the tourist visa waiver regulation that
preserved the visa requirement when the alien was granted an emergency waiver. The airlines
33
claimed that the 1996 amendment was void because it was promulgated by the INS alone and
therefore did not comply with the joint action requirement. The district court granted summary
judgment to the INS in Finnair based on its ruling in United Airlines, apparently believing that
because United Airlines invalidated any agency rule exempting airlines from a fine in certain
cases, the INS could fine airlines regardless of which regulation applied.
The visa waiver statute states that the visa requirement “may be waived by the Attorney
General and the Secretary of State acting jointly . . . (A) on the basis of unforeseen emergency in
individual cases.” 8 U.S.C. § 1182(d)(4). Over the years, these two agencies have treated this
statute as giving each of them joint authority over visa waivers. Prior to 1996, the State
Department and the INS exercised this joint regulatory power by enacting parallel visa waiver
regulations. The INS version stated that “[a] visa and a passport are not required of a
nonimmigrant who . . . satisfies the district director” of the existence of an unforeseen
emergency. 8 C.F.R. § 212.1(g) (1995). The State Department’s version stated that “[a] visa and
a passport are not required of an alien if . . . the responsible [INS officer] concludes that the alien
is unable to present the [visa] because of an unforeseen emergency.” 22 C.F.R. § 41.2(j) (1997).
In 1996, the INS alone enacted a new version of the regulation, which preserved the visa
requirement when the alien was granted a waiver. The 1996 regulation required tourists to
present a visa even if they received a post-arrival waiver, thus making the airlines subject to a
fine under the BIA Rule for having brought the tourists to the United States.7 The State
7
Prior to the INS’s unilateral amendment, 8 C.F.R. § 212.1(g) read, in relevant part:
A visa and a passport are not required of a non-immigrant who . . . at the time of arrival at
a port of entry in the United States, satisfies the district director . . . that, because of an
unforeseen emergency, he or she is unable to present the required documents, in which case
a waiver application shall be made on Form I-193.
34
Department did not issue a new parallel regulation to the same effect until 1999. In the interim,
the INS fined airlines pursuant to its 1996 amendment. Finnair’s central claim is that the INS
amendment is void because it does not comply with a requirement that the INS and State
Department “jointly” regulate in this area. Thus, the question we address here is whether the
fines issued in the interim period between 1996 and 1999 are valid.
The INS makes two counterarguments. First, it claims that the State Department
delegated its authority over visa waivers to the INS in 1991. Prior to 1991, before granting an
emergency visa waiver an INS officer was required to “seek concurrence of the Department of
State Visa Office.” In 1991, to save “resources for both agencies and reduce the time it takes to
admit certain nonimmigrant aliens,” the two agencies amended their parallel regulations so that
an INS officer would no longer need to seek the concurrence of the Department of State when
granting a waiver. See Waiver of Certain Types of Visas, 56 Fed. Reg. 36,028 (July 30, 1991)
(to be codified at 8 C.F.R. pt. 212). The INS now asserts that the 1991 amendment made the
joint action requirement for promulgating and amending regulations meaningless in the context
of visa waivers because it constituted a delegation of the authority of the Department of State
over visa waivers to the INS.
8 C.F.R. § 212.1(g) (1995).
The post-amendment regulation reads, again in relevant part:
A non-immigrant seeking admission to the United States must present an unexpired visa and
a passport . . . unless the nonimmigrant satisfies the requirements described in one or more
of the paragraphs (a) through (f) or (i) of the section. Upon a nonimmigrant’s application
on Form I-193, a district director at a port of entry may, in the exercise of his or her
discretion, on a case-by-case basis, waive the documentary requirements, if satisfied that the
nonimmigrant cannot present the required documents because of an unforeseen emergency.
8 C.F.R. § 212.1(g) (1997).
35
We find this argument unpersuasive. In the 1991 amendment, the State Department
arguably delegated to INS officers its authority to execute the relevant visa waiver. It did not,
however, delegate its authority to promulgate regulations regarding such waivers. Nothing about
the 1991 amendment suggests that it did anything more than change the manner in which the visa
waivers were granted. On the contrary, in the final rule, published in the Federal Register in
1994, the State Department specifically highlighted the limited authority it was conferring on
INS:
Furthermore, the Department wishes to clarify the limited extent of the
authority delegated to the Immigration and Naturalization Service. Although the
proposed rule permits the District Director to waive the documentary requirements
of INA 212(a)(7)(B), the Department of State will continue to exercise the authority
vested in the Secretary of State and the Attorney General under the provisions of INA
212(d)(4)(A) relating to the joint concurrence in documentary waivers, except in the
circumstances described in § 41.2(j) of this final rule. Consequently, this final rule
makes minor modifications to the text of the regulation as discussed in the preamble.
Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act; Waiver by
Secretary of State and Attorney General of Passport and/or Visa Requirements for Certain
Categories of Nonimmigrants, 59 Fed. Reg. 1473 (Jan. 11, 1994) (to be codified at 22 C.F.R. pt.
41) (emphasis added). The amendment gives no indication that it was meant to constitute a
delegation by the State Department to the INS of the entirety of its regulatory authority over visa
waivers; instead it limited the delegation of its authority to a case-by-case determination made by
an officer at the point of entry. The State Department, furthermore, has done nothing to suggest
that it agrees with the INS on this point. When the State Department amended its own visa
waiver regulation in 1999, it exercised its authority in this area, and it made no reference to
having “delegated” that authority to the INS. Without some evidence that a delegation of the sort
36
asserted by the INS was intended by the State Department, we are extremely wary of finding that
such a delegation occurred.
Second, the INS claims that if the INS and State Department regulations in this area
conflict, the INS regulation should control because the INS has primary authority over the
administration of the visa waiver regulation. This argument is inconsistent with the joint action
requirement expressly imposed by Congress. In effect, the INS is claiming that when it wishes, it
is free to displace the State Department’s authority entirely. The statute, however, requires joint
action, and the two agencies acted jointly when enacting the pre-1996 version of the regulation.
The INS’s attempt to amend the jointly enacted regulation on its own, therefore, is ineffective,
and the pre-1996 version remains in effect. The INS’s failure to coordinate with the State
Department in the amendment of the regulations renders the 1996 amendment void.
2. Whether the 1999 State Department Amendment was Valid
We must also consider the validity of the State Department’s 1999 amendment of its own
visa waiver regulation, which made its regulation consistent with the INS’s 1996 regulation.
The State Department did not conduct a notice-and-comment period, and it did not act in concert
with the INS. The INS claims that neither of these issues is fatal to the amendment because: (1)
the State Department had delegated its authority in this area to them, its 1999 amendment was
simply a confirmation of the INS’s primary authority; and (2) the 1999 amendment was
“technical” and therefore good cause existed to forgo notice and comment.
Neither of these rationales is persuasive. As discussed above, the State Department never
delegated its regulatory authority—as distinguished from its primary enforcement authority. The
1999 State Department amendment, like the 1996 INS amendment, violated the joint action
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requirement, and the prior versions of both agencies’ regulations remain effective until the two
agencies act jointly to amend them. The second argument fails because the 1999 amendment was
not merely a technical change to existing valid regulations. This expansion of liability for the
carriers cannot be viewed as being of little importance to the parties it affected; it is a great deal
more than a technical change to the regulation. Because the 1999 amendment was not merely
technical, it should have undergone notice and comment before being adopted.
III. CONCLUSION
In United Airlines v. Brien, we REVERSE in part and AFFIRM in part. We REVERSE
the district court’s ruling insofar as the court found that the INS cannot, by regulation, nullify the
visa requirement upon the grant of a post-arrival waiver, thereby precluding application of the
Penalty Statute. We hold that the BIA Rule, exempting carriers from liability when an
improperly documented or undocumented alien passenger receives a post-arrival waiver of the
visa requirement, is consistent with the Penalty Statute. We AFFIRM the judgment of the district
court and hold that the INS did not act arbitrarily when it opted to use its parole authority rather
than its visa waiver authority to admit aliens into the United States. The INS is not required to
provide waivers.
In Air India v. Brien, we REVERSE the district court’s grant of relief under Rule
60(b)(6). We hold that the Rule 60(b) motion was timely filed as a Rule 60(b)(6) motion, but
that it was nevertheless procedurally defective because the circumstances were not sufficiently
extraordinary to merit relief. We decline to reach the question of whether the district court
committed substantive error when it granted the Rule 60(b) motion.
38
In Finnair v. Brien, we REVERSE the district court’s grant of summary judgment to the
INS. We hold that the 1996 amendment of the INS version of the tourist visa waiver regulation
is invalid because it was promulgated in violation of the joint action requirement. We likewise
hold that the 1999 amendment of the State Department version of the tourist visa waiver
regulation is invalid because it was promulgated: (1) in violation of the joint action requirement,
and (2) without notice-and-comment.
39