"BEECHCRAFT B-95

                                                             Interim Decision #2736




                 MATTER OF "BEECHCRAFT B-95, #N21JC"

                                In Fine Proceedings

                                    LOS-10/2.1019
                      Decided by Board October 18, 1979

(1) Where official records of the Service revealed that no clearance was granted to the
  pilot's aircraft; the telephone number allegedly called by the pilot was the listing for a
  Port of Entry not responsible for clearing aircraft at the pilot's landing site; and the
  inspection bill received by the pilot was for time expended by an inspection officer
  waiting for the aircraft, rather than for any actual inspection, the pilot failed to be
  inspected in accordance with section 239 of the Act and liability to administrative fine
  was incurred.
(2) Despite liability under section 239 of the Act, proceedings to collect fine cancelled in
  light of the Immigration and Naturalization Service's failure to grant the pilot's
  request for personal interview, as grant of requested interview is mandatory under 8
  C.F.R. 280.12.
BASIS FOR FixE: Section 239 I&N Act (8 U.S.C. 1229)
In re: "BEECHC.RAFT B-95, #N21JC", which arrived at Lindbergh Field, San Diego,
       California, from foreign, on July 9, 1975. Person involved: EDWARD IGLESIAS,
       Pilot
ON BEHALF OP CARRIER: Pro se
BY: Milhollan, Chairman; Maniatis., Appleman, Maguire and Farb, Board Members.


  In a decision dated September 28, 1976 a District Director denied the
pilot's request for cancellation of the $500 fine imposed upon him on
May 10, 1976 for a violation of section 239 of the Immigration and
Nationality Act, 8 U.S.C. 1229.. The pilot appealed to this Board and on
April 7, 1977, we remanded the record to the District Director for
consideration of the pilot's statement on appeal that he was inspected
in accordance with section 239 of the Act. In a memorandum dated
September 20, 1977, the District Director stated that he made no
change in his original decision. On August 14, 1978 we again remanded
the record to the District Director to enable him to indicate the
reasons for his decision. In a decision dated May 7, 1979 a new District
Director again denied the pilot's request for cancellation of the fine
and certified the case to us for review. We reverse.
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   Section 239 of the Act authorizes the Attorney General to provide,
by regulation, reasonable requirements for aircraft in civil air navigation with respect to giving notice of intention to land in advance of
landing, or notice of landing. Any person who violates any regulation
made under that section is subject to a civil penalty of $500 which may
be remitted or mitigated through proceedings prescribed by the Attorney General.
   8 C.F.R. 239.2(b) requires advance notice of arrival for aircraft to be
inspected "to enable the officers designated to inspect the aircraft to
reach the airport of entry ... prior to the arrival of the aircraft." 8
C.F.R. 239.2(c) provides that passengers or crewmen required to be
inspected shall not be permitted to depart without permission from an
immigration officer.
  The record indicates that on July 9, 1975, the United States citizen
pilot entered the United States by air from Mexico, arriving at
Lindbergh Field, San Diego, California. The Service alleged that the
pilot, when giving advance notice of his arrival, indicated that he
would arrive at Lindbergh Field at approximately 6:20 p.m. A Service
inspector arrived at the field at approximately 5:40 p.m., and was
informed by the F.A.A. Radio Office that the pilot's aircraft had landed
at 5:20 p.m. and had departed at 5:45 p.m. without remaining for
inspection.
  The Report of Investigation included in the record indicates that in a
Service interview conducted in the office of the pilot's attorney on
January 8, 1976, the pilot stated that he had been inspected, but could
not remember the name of the inspector, the time of day the inspection
occurred, or whether he had filled out any forms. However, in his
appeal statement dated October 7, 1976, the pilot claimed that after
landing at Lindbergh Field, he immediately proceeded to the area set
aside for inspection and that despite his advance notice of arrival, no
inspection officer was there to meet him. Therefore, as had been his
practice in the past when arriving after 5 p.m., he called a telephone
number posted on the window of the inspector's office and a person who
identified himself as the Duty Officer then cleared him to leave. The
pilot claimed that before clearing him, the Duty Officer asked him for
his aircraft number and type, his pilot's number, his home address and
whether he had purchased. anything in Mexico or had any passengers
on board.
  We agree with the District Director's finding that the pilot's previous statements regarding his, inspection diminish the credibility of his
contentions on appeal. Despite his many correspondences with the
Service in connection with this case, on appeal, the pilot for the first
time explained in detail that he had actually obtained telephonic
clearance. In light of his prior statements, we are unable to accept the
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pilot's current rendition of what occurred on the day in question. A
review of the official records maintained by the Service revealed that
no clearance was granted to the pilot's aircraft on July 9, 1975. In
addition, a Service investigation revealed that the telephone number
called by the pilot was the listing for the Service Port of Entry at San
Ysidro, California and that San Ysidro was not responsibile for clearing aircraft at Lindbergh Field.
  In support of his claimed inspection, the pilot submitted a bill in the
amount of $17.36 for "services performed in connection with the inspection of persons arriving by private U.S. aircraft at San Diego,
California". He further related that the District Director of Customs
closed this case without penalty after conducting a thorough investigation of the matter. Upon inquiry, the District Director of Customs
stated that the case was terminated on the belief that the bill
presented by the pilot was evidence that an inspection actually occurred. However, according to the inspection officer who was sent to
meet the pilot's aircraft, the bill was sent for the time expended by him
waiting for the aircraft, rather than for any actual inspection. We take
administrative notice that under the applicable Service rule on immigration inspection extra compensation, section 10 of Part 2818,
Administrative Manual (p. 2818.09), extra compensation is due where
immigration officers report for inspection duty and through no fault of
the Service, an actual inspection is not performed. Based on the foregoing, we are not convinced that the bill submitted by the pilot establishes that he was actually inspected. We conclude that the pilot failed
to be inspected in accordance with section 239 of the Act and that as an
experienced pilot who has made over 100 crossings over the United
States Mexican border, he should have known that such an inspection
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was required.
 Despite the pilot's failure to be inspected, we find that the Service
failed to comply with 8 C.F_R_ 280.12, which provides, in pertinent part,
that:
  "within 30 days following the service of the Notice of Intention of Fine ... any person
  upon whom a notice under this part has been served may file with the District Director
  a written defense ... stating whether a personal interview is desired ... If a personal
  interview is requested, the evidence in opposition to the imposition of the fine and in
  support of the request for mitigation or remission may be presented at such interview.
  An interview shall be conducted if requested by the party as provided hereinabove ... " (Emphasis supplied).
The record indicates that in a letter dated March 17, 1976 the pilot
requested a personal interview pursuant to the above regulation and
asked that the Service officer investigating the case be present at the
interview. The Service apparently did not receive that letter and
another request was made on May 24, 1976. Despite these requests, no
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interview was conducted. In view of the mandatory language of the
regulation, the pilot should have been afforded an opportunity to
appear personally to present and develop whatever evidence he may
have had to support his remission claim. Based on the Service's noncompliance with the regulation, we conclude that the fine should be
cancelled.
  We emphasize that the fine would have properly been imposed had
the procedure specified in the regulation been followed As we have
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pointed out, however, certain requirements of the regulations were not
observed. Were we to approve the imposition of the fine here, the
regulations would be rendered meaningless. While we cannot condone
the pilot's disregard of the law, we believe that under the circumstances, it is in the public interest to terminate the five-year-old
struggle over $500 rather than to prolong it by a remand.
  ORDERS The decision of the District Director is reversed.
  FURTHER ORDER: Imposition of the fine is disapproved and the
proceeding is cancelled.




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