F-0300-7091.Board of Immigration Appeals Executive Office for Immigration Review U.S. Department of Justice
Decided by Board May 25, 1955.
Fine — Section 231 (b) of Act of 1952 — Departure manifest — Clerical errors.
Fine was incurred by air carrier under section 231 (b) of the 1952 act for failure to furnish properly prepared list or manifest as to departing alien passengers where the evidence shows that the carrier did not insert the facts relating to the departure on Forms I-257a, I-94, and I-424, since such failure was not a mere “clerical error.”
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: This matter is before us on appeal from the decision of the District Director at New York, dated January 3, 1955, ordering that fine in the sum of $180 ($10 for each person concerned), be imposed on Colonial Airlines, Inc., owners and/or agents of the above-mentioned plane, for failure to furnish a properly prepared list or manifest as to 18 alien passengers.
The specific violation here charged is the complete failure of the carrier to insert the facts relating to the departure of 18 passengers. They left the United States on the above-described plane, as indicated. However, the Forms I-257a, I-94, and I-424 submitted for the departure of the 18 persons involved contained no information relative to that departure. (Note: — Departure information has been inserted on the forms, which are in the record, by an employee of the Service.)
There is no question that the alien passengers involved did depart, as indicated. There is also no question but that the information relative to their departure was not furnished on the reverse of the forms listed, by the carrier. However, the carrier submits that this failure on its part does not subject it to a fine, by virtue of the provisions of section 11.3 and .4 of Annex 9 to the Convention on International Civil Aviation.
The carrier points out that section 11.3 (supra) requires that the pilot or his agent be given an opportunity to correct, or that the public official concerned should himself have corrected, errors which are of purely clerical nature and not made with intent to violate the law. The carrier further submits that section
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11.4 (supra) provides that no penalty shall be imposed before the operator or the agent has been given an opportunity to satisfy the public authorities concerned that the error was inadvertent and not of a serious nature.
The carrier contends that the failure to insert the facts of departure on the forms in question was an error of a purely clerical nature and was not made with the intent to violate the act. It is also contended that the errors were in fact inadvertent and were not of such a serious nature that they could not be remedied without undue hardship or burden upon either the carrier’s agents or Service representatives. It is further contended that no damage flowed from the alleged failure of the carrier’s agents to properly complete the forms in question of such a nature as to jeopardize the safety or well-being of the United States Government or citizenry as a whole. It is finally contended that the fine being levied under the circumstances herein set forth is an unduly harsh penalty for alleged errors of a purely clerical nature. Therefore, the carrier respectfully requests that the fine be not levied.
We have carefully considered the facts of this record together with the representations of the carrier. On the basis of such consideration, we find that liability to fine has been clearly established in this matter. The reason is that there was a complete failure to insert departure information as to the 18 alien passengers involved. We hold that a complete omission to furnish departure information is not a mere “clerical error” under the law and the regulations promulgated thereunder.
Clearly, the carrier is required to insert information relating to the departure of these alien passengers. 8 C.F.R. 231.5 requires that Form I-466 be used to manifest passengers departing by aircraft, and that such manifest shall be on the same form and shall contain the same information as prescribed in 8 C.F.R. 231.4 (a) (1). The latter requires that the form shall reflect the name of the owner or operator, aircraft registration marks and nationality, flight number, date, port of embarkation, and port of disembarkation. 8 C.F.R. 231.42 requires that each passenger shall surrender to the carrier Form 257a or Form I-94, and that the carrier shall note thereon the name of the port of embarkation in the United States, the date of departure therefrom, and the registration marks of the aircraft. It also requires that the carrier shall attach such form to, and make it a part of, the Form I-466 relating to such passenger. It further requires that when no such form is surrendered, the carrier shall cause to be executed as a part of the manifest a Form I-424 and shall attach it to the departure manifest.
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On the basis of the foregoing, it is clear that there was no requirement that the carrier be granted an opportunity to supply the lacking information. The reason is that the error was not a clerical one. Accordingly, we will dismiss this appeal.
Order: It is ordered that the appeal be and the same is hereby dismissed.
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