Court: Court of Appeals for the Sixth Circuit; January 9, 2002; Federal Appellate Court
Petitioner Claude Robert, a Canadian citizen and president of Transport Robert Ltée (TRL), operates a trucking company that transports paper from Canada to the United States, with significant annual deliveries to various U.S. destinations. A portion of this paper is stored in a Michigan warehouse, where TRL planned to use B-1 temporary business visas for Canadian drivers to deliver the paper domestically. The Board of Immigration Appeals (BIA) ruled that such deliveries constituted "cabotage"—transporting goods point-to-point within the U.S.—which is not permissible under B-1 visa provisions. A letter from the Immigration and Naturalization Service (INS) clarified that drivers could not transport goods domestically if they were not engaging in continuous international transport. TRL contested this interpretation in court, seeking a declaratory judgment that their activities were part of international commerce; however, the district court remanded the case to the INS, stating the INS's letter did not constitute a final decision under the Administrative Procedure Act. The BIA's denial of the B-1 visa for TRL's proposed domestic deliveries was ultimately affirmed.
Petitioner, a licensed truck driver, was involved in a "test case" agreement with the INS, intending to deliver paper from his Michigan warehouse within the U.S. on a B-1 visa. The INS excluded him under 8 U.S.C. § 1182(a)(5)(A)(i) for entering to work without a labor certificate and under § 1182(a)(7)(A)(i)(I) for lacking a valid visa. An immigration judge ruled that such deliveries violated 8 C.F.R. § 214.2(b)(4)(i)(E)(l), and the BIA upheld this decision. On appeal, Petitioner raised two issues: first, that the INS’s use of a test case was arbitrary and capricious under the Administrative Procedures Act (APA), which the court rejected, citing that the APA does not govern immigration proceedings under the INA. The court noted that Petitioner had effectively waived this issue by participating in the exclusion process. Second, Petitioner argued the BIA's decision was contrary to law, but the court emphasized that it reviews BIA's legal conclusions with deference, affirming that the B-1 visa is intended for business visitors who cannot perform local labor for hire. The court reaffirmed that the INS's exclusion of Petitioner was consistent with regulations governing B-1 visas.
Section 214.2(b)(4)(i)(E)(l) outlines the regulations governing transportation operators moving goods or passengers between the United States and other countries. Operators can make deliveries in the U.S. only if all items were loaded from another country and can load goods in the U.S. for delivery solely to another country. Domestic services competing with U.S. operators are prohibited. In this case, the immigration judge and the Board of Immigration Appeals (BIA) upheld the exclusion of the Petitioner based on the interpretation of this regulation, noting that the Petitioner intended to load paper in Michigan for delivery within the U.S., which violated the regulation.
The Petitioner argued that the Michigan warehouse is merely an intermediate stop in international shipping, referencing a case (The Quaker Oats Co. Transp. Within Texas and California) that discusses how a warehouse does not interrupt continuous transportation. However, the Quaker case is distinguished because it pertains to interstate shipping rather than international commerce, which involves immigration and labor issues. Despite acknowledging that Quaker reflects modern shipping practices, it does not invalidate the BIA's interpretation of the regulation as being erroneous or inconsistent.
Furthermore, the Petitioner contested the BIA's focus on "the movement of goods or passengers" rather than the international nature of transactions. He provided examples, including a memo from a senior INS representative, demonstrating that the INS considers the international character of a trip when allowing transport of goods.
Petitioner references a handout indicating that a relay driver does not need to enter the U.S. simultaneously with a truck, provided it is within a reasonable timeframe. Additionally, Petitioner cites a legal opinion from the INS general counsel allowing a tour bus driver to transport passengers from California to Alaska, asserting it supports point-to-point delivery within the U.S. However, this bus was part of an international tour package that began in Germany, which Petitioner overlooks. The legal precedent in Matter of Duckett, where a Canadian rail clerk was allowed entry for paperwork related to international shipments, is also mentioned, but these instances do not create binding precedent against the BIA's interpretation.
Petitioner argues that the BIA’s interpretation of 214.2(b)(4)(i)(E)(l) is flawed, claiming that the last sentence allows "intra-U.S. continuation of foreign shipment activity." Petitioner distinguishes between "purely domestic" and "international freight temporarily at rest," suggesting immigration law's lack of definitions allows the Court to interpret these terms in light of NAFTA to facilitate international commerce. Despite this, Petitioner fails to demonstrate that the BIA's interpretation is plainly erroneous or inconsistent with the regulation.
The Court reiterates the principle of deference to agency interpretations under the Auer and Chevron doctrines, concluding that the BIA's interpretation is reasonable and aligns with the regulation's text. Therefore, the Court affirms the BIA's decision. The excerpt also references specific U.S. code sections regarding the inadmissibility of aliens seeking entry for labor without proper certification and documentation.
