CESSNA 180 "N4502B"

                                                           Interim Decision #2347




                     MATTER, OF CESSNA 180 "N4502B"

                                In Fine Proceedings
                                    E LP-10/2.46
                     Decided by Board February 20, 1975
The maximum penalty to be assessed upon the pilot for a violation of section 239 of the
  Immigration and Nationality Act is $500 for each arrival of the aircraft in the United
  States, not $500 for each passenger. Although the pilot intentionally disregarded the
  law by failing to notify the proper authorities upon landing, mitigation of the fine by
  $200 was appropriate wheie the plane had a faulty compass and faulty carburetor
  resultingin a rough and exhausting flight which did not arrive back in the United States
  until a very late hour.
BASIS FOR FINE: Act of 1952—Section 239 [8 U.S.C. 1229]
IN RE: Cessna 180 "N4502B", which arrived at El Paso, Texas, from foreign, on Apri129,
         1973. Persons involved: John B. Miller, pilot, Barbara Logan, Stephen Weeks
         and Aleta Nelson.
ON BEHALF OF APPELLANT: Pro Se


   In a decision dated August 27, 1974, the district director imposed a
fine of &.'2,000 upon the pilot for violation of section 239 of the Immigration and Nationality Act, and he denied the pilot's request for mitigation
or remission of the fine. The pilot has appealed from that decision. The
appeal will be sustained.
   The pilot has conceded that he violated section 239 of the Act when he
arrived at El Paso, Texas from Mexico on April 29, 1973, without
notifying the proper authorities in advance and without presenting
himself or his passengers for inspection. However, the district director
imposed a fine of $2,000 for that violation, apparently on the theory that
failure to present each passenger resulted in a separate violation. This
was error.
   We have held that section 239 contemplates a maximum penalty
of only $500for each arrival of an aircraft in the United States. Matter
of Howard Aircraft "N-813," 

 (BIA 1957); see Matter
of Aircraft No. "N-2476—U," 

 (BIA 1965). Consequently, the pilot is subject only to a fine of $500 stemming from his
arrival in the United States on April 29, 1973.
                                          185
Interim DeeisiOn #2247

   The pilot has requested mitigation or remission of the fine. He is a
United Staten citizen, and has stated that he was returning with three
friends, also United States citizens, from a beach outing in Mexico when
the -violation occurred. He has alleged that his plane had a faulty compass and a faulty carburetor and that the flight to El Paso had therefore
been rough and exhausting. He has also stated that he elected not to
notify the prcper authorities of the arrival "because it was very late and
I didn't want to bother a customs agent to come out and see four
beach-tired El Pasoans."
   The District Director noted in his opinion that the pilot had failed to
report for inspection on another occasion in 1963, but that he had only
been issued a warning letter by the district director on that occasion. On
appeal, the pilot has stated that his earlier violation was the result of
bad weather conditions, and that he had voluntarily notified the Service
of that violation immediately after it had occurred.
   While we cannot condone the pilot's intentional disregard of the law,
we believe that under the circumstances some mitigation is warranted.
Consequently, we will allow mitigation in the amount of $200 and impose
a fine of $300 upon the pilot.
   ORDER: The appeal is sustained, and the fine permitted to stand is
reduced to $800.




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