Matter of Aero-Mexico Flight #142 (Board decision, July 16, 1975)

Plain-English summary

Aero-Mexico appealed a $210 fine for failing to provide individual arrival and departure cards for 21 passengers on a flight from Mexico to Los Angeles. The carrier argued that flights from a neighboring country were exempt from the manifest requirement and that the regulation improperly required individual cards. The Board held that the regulation covered flights from Mexico and that the Attorney General could prescribe the manifest's form. It also noted that the carrier had received a prior warning about missing cards. The Board dismissed the appeal and upheld the fine.

Decision snapshot

• Cited authorities: INA § 231(a), (d); 8 C.F.R. § 231.1(b)
• Outcome: Carrier's appeal dismissed; $210 fine for 21 violations upheld.
• Key point: A flight from Mexico still required a separate Form I-94 for each alien passenger under the regulation.

Full text (BIA official public release)

Interim Decision #2409

MATTER OF AERO—MEXICO "Flight #142"

In Fine Proceedings
LOS-10/2.860

Decided by Board July 16, 1975
Liability to fine lies under section 231 of the Immigration and Nationality Act for failure of the carrier to present a manifest in the form of a separate arrival-departure card (Form I-94) for each alien passenger involved arriving in the United States by air not- withstanding the flight in question originated in Mexico (section 231(a)(2) of the Act; 8 CFR 231.1(b)). IN RE: AERO-MEXICO "FLIGHT #142," which arrived at Los Angeles, California, from foreign, on July 17, 1974. 21 alien passengers involved.
BASIS FOR FINE: Act of 1952—Section 231(a), [8 U.S.C. 1221(a)]

ON BEHALF OF CARRIER: ON BEHALF OF SERVICE:
Emanuel Braude, Esquire
Paul C. Vincent
215 W. 5th Street, suite 910
Appellate Trial Attorney
Los Angeles, California 90013

In a decision dated January 21, 1975, the district director imposed a fine in the total amount of $210 upon the carrier under section 231(d) of the Immigration and Nationality Act for 21 violations of section 231(a) of the Act. The carrier has appealed from that decision. The appeal will be dismissed. Section 231(a) of the Act provides:
Upon the arrival of any person by water or by air at any port within the United States from any place outside the United States, it shall be the duty of the master or commanding officer, or authorized agent, owner, or consignee of the vessel or aircraft, having any such person on board to deliver to the immigration officers at the port of arrival typewritten or printed lists or manifests of the persons on board such vessel or aircraft. Such lists or manifests shall be prepared at such time, be in such form and shall contain such information as the Attorney General shall prescribe by regulation as being necessary for the identification of the persons transported and for the enforcement of the immigration laws. This subsection shall not require the master or commanding officer, or authorized agent, owner, or consignee of a vessel or aircraft to furnish a list or manifest relating (1) to an alien crewman or (2) to any other person arriving by air on a trip originating in foreign contiguous territory, except (with respect to such arrivals by air) as may be required by regulation issued pursuant to section 239.

Counsel's initial contention is that since the flight in question origi- 392

Interim Decision #2409

nated in Mexico, section 231(a)(2) of the Act exempts the carrier from the manifest requirements of section 231(a). Counsel's argument, how- ever, overlooks the language of section 231(a)(2), which authorizes the Attorney General, pursuant to the authority granted to him in section 239 of the Act¹, to promulgate regulations making the provisions of section 231(a) applicable even on flights originating in foreign contigu- ous territory. Pursuant to this authority, the Attorney General has promulgated regulations making the provisions of section 231(a) appli- cable to all aircraft arriving in the United States except those arriving directly from Canada and those arriving in the Virgin Islands of the United States directly from the British Virgin Islands. 8 CFR 231.1(b). Thus flights arriving from Mexico clearly are subject to the manifest requirements of section 231(a) of the Act. Next, counsel contends that 8 CFR 231.1(b), which prescribes "a manifest in the form of a separate arrival-departure card (Form I-94)," does not comply with section 231(a), which refers to "typewritten or printed lists or manifests of the persons on board such vessel or air- craft." Once again, counsel's argument ignores the language of section 231(a), which states: "Such lists or manifests shall be prepared at such time, be in such form and shall contain such information as the Attorney General shall prescribe by regulation as being necessary for the identifi- cation of the persons transported and for the enforcement of the immi- gration laws." Finally, counsel argues that the portion of 8 CFR 231.1(b) which requires the captain or agent to "present a manifest in the form of a separate arrival-departure card (Form I-94) prepared for and presented by each alien passenger on board," does not adequately inform the carrier as to "[j]ust who presents what, and when, pursuant to the regulation." We reject this contention. The plain meaning of the regulation is that the carrier is responsible for preparing a Form I-94 to be presented by each alien passenger upon inspection by an immigration officer. Moreover, the present violations can hardly be said to be the result of any misunderstanding on the part of the carrier in light of the fact that (1) the record shows that on July 25, 1974, more than three weeks prior to the flight in question, the carrier was warned by the Service on Form I-80, that the alien passen- gers aboard one of its flights had failed to present the required Forms I-94², and (2) this is hardly an isolated instance of violation by this

The pertinent portion of section 239 of the Act states: "The Attorney General is authorized . . . (3) by regulation to provide for the application to civil air navigation of the provisions of this Act where not expressly so provided in this Act to such extent and upon such conditions as he deems necessary." 2 Form I-80 states, in part:
You will receive a similar report for each of your plane arrivals for which deficient

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carrier of the manifest requirements of section 231, since by counsel's own admission there were 233 similar penalties pending against the carrier at the time of oral argument (O.A. p. 2).³ The district director's decision was correct. The appeal will be dismissed.
ORDER: The appeal is dismissed.

Forms I-94 are presented or when alien passengers are presented for inspection without Forms I-94.
Your attention is called to the reverse of this letter which contains instructions which may serve as a reminder concerning the proper preparation of Forms I-94.
It is hoped that this information will aid in the preparation of these forms, in order that the inspection and entry of your passengers may be expedited. ³ We take administrative notice of the fact that this carrier recently has been before us on several occasions with respect to similar violations of the manifest requirements of section 231 of the Act. Matter of Air Mexico "Flight #144," LOS-102.654 (BIA 1974); Matter of Aeronaves de Mexico "Flight #405," NYC-10/52.3151 (BIA, 1974).

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