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8 Air & Space Law. 1 (1993-1994)

handle is hein.journals/airspaclaw8 and id is 1 raw text is: Forum on Air and Space Law American Bar Association THE AIR AND SPACE LAWYER Volume 8, Number 1 Summer 1993 Immigration Fines and the Airlines Industry BY CONSTANCE O'KEEFE* Passengers slitting their wrists at entrances to jet ways, passengers held in indefinite custody at airline expense in inotel rooms, in sonie extreme cases chained to beds, passen- gers stripping naked in transit lounges, passengers attacking airline personnel.... These are not the sensation- alistic details of a bad TV movie from sweeps week. They are now regular occur- -('1 h~'j rences in the airline industry: situations international carriers and their employees face every day. And, in- creasingly, they are issues for aviation law practitioners. I was first overwhelmed personally the day I wit- nessed a passenger hold a knife to his throat rather than leave the transit lounge at LAX International Airport. I was first overwhelmed professionally when a client called and asked what it should do about the more than 300 immigration fines that had accumulated in less than a three-month period. All this to do is a result of a mix of law and policy choices and missteps on political asylum issues-a topic steeped in history but one fraught with emotion and as contemporary as today's headlines. Motivated by valid humanitarian concerns, the United States grants all who request political asylum a full opportunity to demonstrate the well-founded fear of persecution' that guarantees refuge in the United States. These broad rights are conferred on all, even those who otherwise have extremely limited rights under U.S. immigration laws.- The asylum law trumps all other laws, deliberately so. Unfortunately, it has also opened a loophole for those seeking entry to the United States. Merely uttering the words political asylum at a U.S. airport entitles any passenger to all the rights available under the asylum law-and entr6e to the U.S. not avail- able any other way so readily. *Constance O'Keefe practices aviation law in Washington, D.C., fo- cusing on international issues. Common current schemes include the following: using good quality counterfeit or photo substituted documents sufficient tj pass even the most diligent car- rier scrutiny for boarding a U.S.-bound flight and then either destroying the documents on board or passing them off to an accomplice, and requestintg political asy- lum upon disembarking. * traveling to the U.S, as a TWOV -a transit without a visa passenger scheduled to merely pass through the United States-and requesting political asylum upon arriving at the U.S. airport. High drama also occurs regularly at airports where the Immigration & Naturalization Service (INS) de- mands that carriers take custody of certain categories of arriving passengers who request political asylum. Al- though it usually releases asylum-seekers rather than de- taining them itself,' the INS nevertheless asserts that carriers must keep such passengers in detention pending determination of their asylum claims-a process that can take years. When carriers disagree, local INS officials have frequently responded with threats to cancel transit agreements, revoke landing rights, and seize aircraft. As a result, in the motels and hotels around airports such as JFK, the carriers are operating unofficial jails. Frustrated by INS policies that forced them into the role of jailers, the industry sued the INS more than a year ago, but the litigation remains stalled in federal dis- trict court in Washington, D.C.' Meanwhile, detention costs continue to mount. Many carriers have spent half a million dollars or more keeping asylum-seekers in cus- tody. Fines, too, are piling up. It is not unusual for a major carrier to owe the U.S. government more than $1 million a year in fines for bringing improperly docu- mented passengers to the United States. The asylum issue involves desperate individuals, al- most unbearable strains on airline operations and airline personnel, and huge expenses an industry in crisis can ill afford. This article focuses on legal issues with respect to fines, after a brief review of the asylum law of the United States. The detention issue, which is not explored in detail here, is the other major immigration issue facing the industry. Its resolution awaits decision in the indus- try lawsuit and/or the cases of several individual carriers now pending before various courts. (continued on page 3)

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