AIRCRAFT NO. "N-2476-U"

11 I. & N. Dec. 73

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1439
• Status: Published

Opinion

Interim Decision #1439

MATPER or AincsArr No. "N-2476-1.7" In Fine Proceedings LOS-10/2.121 Decided by Board March .18,1965 Since remission In full of $500 penalty imposed under section 239, Immigration and Nationality Act, is not limited to emergent circumstances of 8 CFR 239.2(d), and since section 239 specuically provides that the penalty incurred for violation of any regulation made thereunder may be remitted or miti- gated, penalty of $500 incurred under section 239 of the Act for failure of pilot to present himself and passenger for inspection is mitigated to extent of a remaining 4125 penalty when both are United States citizens returning from a bona fide business trip in Mexico, bringing no merchandise, and evidence establishes violation was unintentional and pilot acted in good faith throughout - In as: CESSNA AIRCRAFT, Model 172, No. "N-2478-1r which arrived at Lindbergh Airfield, San Diego, California, from Mexico on Septem- ber 11, 1983. Persons involved: James A Ellis, Pilot; and John Thomsen, Esquire, passenger,

Thisappeal is directed to an administrative penalty of $400 ($500 mitigated. to the extent of $100), which, the District Director has ordered unposed on the aircraft's pilot for "failure to present the aircraft, yourself, and one passenger for bdspection by an immigra- tion officer as required by 8 CPR 239.2(c)." This flight'involved the return portion of a. Mexican business trip by the two persons named above, both United States citizens, who brought back no merchandise. At the time of landing, as had been the case during the entire return trip from Mexico, the pilot and his passenger were engrossed in a discussion of the business problem which had caused them to make the flight. They also had not eaten for several hours and were hungry. Accordingly, the pilot forgot about the inspection requirements, taxied the aircraft to that part of the airfield used by the company from whom be had hired the plane, parked it there, and proceeded to a restaurant in San Diego with his passenger to continue their business discussion.. While dining, the pilot remembered about inspection and, with his passenger, promptly returned to the airport. He reported to the 73 Interim Decision *1439 Government officer on duty, an employee of the Department of Agriculture, who notified an immigration officer. The latter re- quested the pilot to report to him the following morning, which he did,. accompanied by his passenger., an attorney in San Diego. The statute authorizes the Attorney General to promulgate regula- tions setting forth, inter cilia, reasonable requirements for the in- spection of arriving aircraft, and passengers and/or crew thereof. Pursuant to this statutory authority, the Attorney General has pro- mulgated .8 CFR 239.2(c), which has the force and effect of law. In substance, that provision of the regulations prohibits the dis- charge or departure of any passenger or crewman from the aircraft without permission from an immigration officer, under pain of a $500 penalty. :- The foregoing facts of record establish that we are confronted here with precisely such a situation as is contemplated by the regula- tion. Accordingly, liability to the fine has been incurred. This is not seriously challenged. The District Diiector has ruled that remission of the fine provided for in section 239 of the statute is permissible only "if the violation was occasioned by emergency or forced landing of the aircraft." In other words, the District Director interprets the statute as permitting the fine to be forgiven in full only where a violation of 8 CFR- 239.2(d) is involved. This, however, is not correct. Section 239 contains the specific provision that the $500 penalty incurred for a violation of any regulation made thereunder may be remitted, in accordance with such proceedings as the Attorney Gen- eral shall prescribe. Clearly; therefore; the District Director's ruling has the effect of having the regulation.exceed the scope of its statu- tory authority. To this extent, therefore, his derision is overruled. Despite the fact that such action is permissible here, we do not think that remission of the fine is merited. ' The pilot is admittedly experienced in international flights such as this one. We' fhinir a minimum penalty should be permitted to stand to keep him mindful of the inspection requirements in the future. The Service report of investigation sets forth that the employee of the Department of Agriculture on duty at the airpiiit telephonic- ally informed an immigration officer of the aircraft's arrival and the fact that it had not been inspected. It also reflects that the immigration officer to whom this was made known then called the pilot's wife and requested her to have her husband report to the Government office the following morning (which he did). It then intimates that the Agriculture,Department employee was under the impression that the pilot returned for inspection that afternoon as

74 Interim Decision #1439 the result of a telephone conversation with his wife putting him on notice of the fact that the immigration officer was looking for him. The testimony of the pilot and his passenger, however, negatives this adverse inference. The District Director appears to have accepted their statements in this respect. We agree with said official that the evidence of record shows that the pilot returned to report for in- spection of his own volition. The District Director has stressed that the pilot made a statement that he had not flown a private aircraft into the United States from a foreign country within the past five years whereas, in fact, air- craft arrival records at the airport involved reflect an arrival by the pilot from Mexico on August 15, 1963. The pilot, on the other hand, insists that he made no such statement and that the immigration officer who attributed it to him confused his statement with that of his passenger who, according to the pilot, stated to the immigration officer that he was not mindful of the requirement of reporting be- cause he had not used a private aircraft in the past five years, rely- ing, instead, on commercial aircraft. The passenger in question, an attorney, has corroborated the pilot's claims in this respect. Accord- ingly, and in view of the following considerations, we discount this as an adverse factor. The pilot and his passenger are both citizens of the United States. They brought back no merchandise from Mexico with them. Their trip was for bona fide business purposes. We are satisfied that the evidence of record establishes . that the violation was unintentional on the pilot's part. We are also convinced that he became aware of, this violation without outside influence, and that he thereafter made every reasonable effort to comply with the law and regulations, to wit: he returned to the airport the same afternoon to report; and he complied with the immigration officer's request to report again the following morning. We feel that the evidence shows that the opera- tor of the aircraft was acting in good faith . throughout. The oper- ator apparently has no adverse immigration record despite several such flights in the past. It appears that the parties involved are reputable businessmen respected in their communities. The pilot was acting in that capacity as a matter of convenience for his passenger, and not for any immediate financial gain for his services as such. Under these circumstances, we think the pentilty, should be reduced to the bare minimum. ORDER: It is ordered that the District Director's decision of January 5, 1965, be modified to ptovide for $375 additional mitiga- tion, and that as so modified the decision of said official be and the same is hereby affirmed. The penalty permitted to stand is $25.