SPC-10/2.21
Decided by Board September 12, 1957
Fine — Section 239 of Immigration and Nationality Act — Maximum penalty — Multiple violations of relating regulation.
Section 239 of the Immigration and Nationality Act contemplates a maximum penalty of $500 for each arrival of an aircraft, regardless of how many of the provisions of the relating regulation are violated. However, the number of violations has a bearing on the question of remission of the fine or the extent of mitigation.
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of the Acting District Director at Los Angeles, California, dated March 14, 1957, directing that a penalty of $1,500 be imposed on the operator of the above-described aircraft which arrived at Harlingen, Texas, from Mexico on or about December 5, 1956, for the following violations of the regulations promulgated pursuant to the statute: failure to land at an airport designated as a port of entry for aircraft; failure to furnish advance notice of arrival of the aircraft; and discharging and permitting to depart passengers and/or crewmen without permission from an immigration officer. The $1,500 penalty consists of three fines of $500 for violation of each of three parts of the regulations promulgated pursuant to the statute. The Acting District Director at Los Angeles did mitigate the penalty imposed for failure to give advance notice of arrival to the extent of $300, permitting the total penalty to stand at $1,200. However, since the statute limits the total fine to $500, and in view of the fact that the overall record does not merit remission or any mitigation of that sum, the penalty permitted to stand by this Board will be $500.
The aircraft entered the United States from Mexico in the vicinity of Brownsville, Texas, and instead of landing at the Rio Grande Valley International Airport there, proceeded inland an additional 30 to 50 miles and landed at Harlingen, Texas, where refueling was accomplished. The plane then made an intermediate stop at Van Horn, Texas, and an overnight stop at Tucson, Arizona. Upon arrival at Fletcher Airport at Rosemead, California, on December 6, 1956, the pilot left the airport and proceeded to his home in San Gabriel, California, from which point he telephoned the Scott Aero Service at Long Beach Municipal Airport, Long Beach, California, and, representing himself as his brother, asked Mr. Scott to notify Customs that he was arriving at Long Beach Airport from Mexico. The foregoing facts are established by the record and admitted by the pilot, who was taken into custody at Rosemead.
The statute authorizes the Attorney General to promulgate regulations designating landing places for aircraft engaged in civil air navigation and setting forth reasonable requirements for advance notice of the arrival of such aircraft and for the inspection of the passengers and/or crew thereof. Pursuant to this statutory authority, the Attorney General has promulgated 8 CFR 239.2 which has the force and effect of law. The provisions of that regulation here pertinent are, substantially, as follows: aircraft shall land at the international airports enumerated in the statement of organization of the Service, unless permission to land elsewhere shall first be obtained from the Collector of Customs or other Customs officer having jurisdiction over the airport of entry nearest the intended place of landing (subsection a); aircraft shall furnish notice of the intended flight to the immigration officer at or nearest the intended place of landing, or shall furnish similar notice to the Collector of Customs or other Customs officer in charge at such place, in sufficient time to enable the officers designated to inspect the aircraft to reach the airport of entry or such other place of landing prior to the arrival of the aircraft (subsection b); and the aircraft shall not discharge or permit to depart any passenger or crewman without permission from an immigration officer (subsection c).
Harlingen, Texas, is not a designated international airport enumerated in the statement of organization of the Service. The facts of record establish, and the pilot concedes, that advance notification of this aircraft's arrival was not furnished and that permission to land at other than a designated airport was not requested and/or obtained. The record also establishes, and the pilot concedes, that he left the aircraft without notification to or inspection by Customs and Immigration officials, and without proper permission. Accordingly, and in view of the foregoing, liability to fine has been established. Thus, the basic problem here is whether the pilot has incurred a fine of $1,500, $500 for each provision of the regulation violated, or whether he is subject only to a total fine of $500.
The statute provides that any person who violates any regulation made thereunder shall be subject to a civil penalty of $500. It also provides that the penalty shall be a lien upon the aircraft to that extent. It further provides that the aircraft may be released from custody upon the deposit of an amount not to exceed $500, or upon the giving of a bond in such sum. Clearly, the statute contemplates a penalty of only $500 for each arrival of an aircraft in the United States, regardless of how many provisions of the regulation may be violated in the course thereof. We so hold, and we think that the violation of the individual subdivisions of the regulation would only have a bearing on the question of remission of the fine, or the extent of mitigation thereof.
The statute clearly contemplates one fine rather than several because it uses the word "penalty," not "penalties." (See Cosulick Line of Trieste v. Elting, 40 F. (2d) 220.) Also, the law creates a lien on the aircraft only to the extent of $500 so that, obviously, there would be no lien for the additional $1,000. In addition, the legislative history of the section shows that in regard to penalties, the House Bill had criminal penalties, whereas the Senate had civil penalties only; and that the House conferee withdrew, so far as regulations were concerned, and agreed that for violation of the regulations the penalty should be a civil one of not more than $500. (See vol. 67, part 9, pp. 9355 6, Cong. Rec.) Furthermore, the imposition of multiple fines for one basic violation, which is precisely what the Acting District Director has done here, will not be sustained. (See Navigazione Generale Italiana v. Elting, 66 F. (2d) 537.)
The only remaining issue is whether remission or mitigation of the fine is merited here. However, as pointed out by the Acting District Director, the pilot's experience in international commercial flying and his action in endeavoring to create the impression that he was arriving at Long Beach, California, from Mexico, thereby hiding the fact that he had made intermediate stops, certainly militate against such relief. Also, the record contains no justification whatsoever for his failure to comply with the law and the regulations involved. Because of these factors, and upon careful consideration of the entire record, we conclude that remission or mitigation of the $500 penalty involved is not warranted.
Order: It is ordered that the order entered by the Acting District Director at Los Angeles, California, dated March 14, 1957, be and the same is hereby modified to provide for the imposition of a penalty of $500 and, as so modified, that the appeal therefrom be dismissed.