Matter of BOAC PLANE "FLIGHT NO. 523"

MATTER BOA4C'PLAXE No. 523" OF '*FLIG~IT I n FINE Proceedings F-0400-821 Decided by Board November 1, 1955 Fine--Section Wl of 1952 act-Not incurred despite absence of immigration in- spection when alirsrl n- louted through Fcdelal inspcetion oireo. Fine will not be imposed against nn airline under section 271 of the 1951 act for failure to prerent the unauthorized landing of an alien passenger when the record estsblishes that the passenger was routed through the Federal inspection facility at the airport, received Public Health and Customs dear- awe, and could not have passed from Public Health to Customs without having proceeded through the Immigration inspection area. BEFORE THEBOARD Discussion: This matter is before us on appeal from a decision of the District Director at Philadelphia dated Play 6, IvbS, Orderlng that h e in the sum of $1,000, mitigated to the extent of $500, be imposed on the British Overseas Airways, he., ownem and/or agents of BOAC Plane Flight No. 523, which arrived at the port of Phila- delphia, Pennsylvania, from foreign on October 3, 1954, for failure to prevent the landing of alien passenger W-A-W- at a timo and place other thnn a- rlecignntd hy the immigration officers. The aircraft in question was diverted from New Pork, its original destination, to Philadelphia because of venther conditions. At the latter port, the nine members of the cre-iv and 64 of the 65 passengers aboard were presented for inspection and were inspected. Subse- quent to such inspection, and after the departure from the Phila- delphia airport of the passengers inspected, z check of the passenger lists and the immigration docunlents revealed that the above-~~:?rned alien had not, according to the records of the Service, ken inspected, although he had been inspected and cleared by the United States Public EIenllh Service a d Cuslorns. The aubjcat nlicn a a c pre- sented later the same day at the Idlemild Airport, New Pork, where he mas inspected by a Service official and admitted as a visitor (B-2) for a period until October 30, 1954. According to the record, he departed from the United States in accordance with the terms of his admission. Due notice of the diversion of the flight was given the Service. Immediately upon the plane's landing, all the crewmembers and pas- sengers were escorted to the area of the airport administration building desi,pated and set aside for Governmenc inspecclon, Public Health, Immigration and Customs. The captain of the aircraft re- mained with the members of his crew and the passengPrs continu- ously during the inspection period in order to insure that all per- sons subject to inspection were in fact inspected. The record indicates that the subject alien received Public Health and Customs inspection and clearance. Also, according to the record, once the subject had received Public Health inspection and clearance he could not have received Customs inspection and clearance without having passed through the Immigration inspection area where three officers were on duty. In this connection, section 235(a) of the Imm~gratlon and Nationality Act imposes a duty on the Service to conduct the in- spection of an alien applicant for admission presented for inspec- tion, as this alien was, according to the record. The record is clear that the alien did not intentionally and deliberately evade inspec- tion. I n this connection, counsel asserts that the passenger was probnbly overlooked because of his short statnre and t h ~height nf the counter in the inspection area from behind which the officers apparently conducted their inspection. The carrier chartered buses to carw the passengers from Philadel- phia to New York, the flight's scheduled termination point. Fol- lowing inspection by the three Government services mentioned above, the captain assigned a member of his crew to board each bus to escort the passengers to New York. In order to assure that all Government requirements concerning Immigration and Customs in- spection has been complied with fully, the captain personally in- quind of the Immigration and Customs officials thcn on duty and in charge whether all passengers and crewmembers had been duly inspected and cleared for entry into the United States. These 05- cials answered the captain's question in the affirmative and on the basis of such assurances, and not until their receipt., the captain permitted the chartered buses to leave the Philadelphia airport for the trip to New York. The subject alien was among the passengers who boarded one of the buses a t Philadelphia, and he continued to New York on the bus in the custody of the carrier's stewardess. I n other words, the carrier did not permit the subject to leave the Philadelphia airport until the Service had assured it that his inspec- tion had been made. As we see it, such assurance should have been given by the Service only after the manifest and immigration docu- ments had been checked off against one another. However, accord- ing to the record, such a check was not made until after the buses had departed from the Philadelphia airport. When the fact that the subject alien had not been inspected was discovered, the matter n-as brought to the attention of the carrier. Through its excellent cooperation, the subject alien's inspection was completed immediately upou his arrival at New York. At all times until said inspectlon Kas completed iuld t l ~ a l i w admitted to the United States, he was in the custody of the carrier. The foregoing hcts are established by the affidavits of the alien passenger involved and five of the carrier's employees, together with a floor plan of the airport facilities set aside for the Government inspection by the Public Health, Immigration and Customs services. None of the facts stated above are denied or controverted in the decision of the district director, except that said official has appar- ently discounted the carrier's contention that it was impossible for the passenger to enter the Customs inspection area without passing through the Immigration inspectlon area. On the basis of the foregoing, we find that a violation of section 271 of the Immigration and Nationality Act has not been estab- lished in these premises. The reasons are that the alien entered the inspection area; the Service first reported to the carrier's represents- tive that all passengers had been inspected; and the carrier has met the burden of showing complinnre with the statute. Therefore, we conclude that the appeal must be sustained and no fine imposed. We will now so order. Order: I t is ordered that the appeal be and the same is hereby sustained and that fine be not imposed.