Interim. Decision #2403 

MATTER OF SWISSAIR "FLIGHT SR 168" 

In Fine Proceedings 

'BOS-10/11.307 

BOS-10/11.319 

Decided by Board February 10, 1975 

(1) Liability to fine under section 273(a) of the Immigration and Nationality Act for 

bringing the three aliens involved to the United States without the required visas is 

established by official Service records (prepared by immigration inspectors upon the 

arrival of the alien passengers) indicating that the aliens arrived without the required 

visas, where the carrier has submitted nothing to challenge the reliability of the official 

records and, moreover, lies conceded that lie empluyeea neglected in check the alien 

passengers' passports for visas. 

(2) The impositicn of fines in the instant cases did not lack due process for failure to give 

the carrier an opportunity to cross-examine the immigration inspectors who prepared 

the official forms since no useful purpose would be served thereby. There is no reason to 

expect that, if questioned by counsel, the immigration inspectors could add anything of 

significance to the information contained in the official records of the aliens' arrivals. 

Balanced against this is the great inconvenience to the Service in being required to take 

immigration inspectors away from their duties and have them available to testify on a 

routine basis. 

(3) Counsel's contention that due process in administrative fine proceedings under section 

273 of the Act requires that the Government include the alien's passport, or a copy 

thereof, in the record of proceedings, is rejected. 

IN RE: SWISSAIR 'FLIGHT SR 168", which arrived at Boston, Massachusetts, from 

foreign, on April 8, 1973. Alien passenger involved: 

HERMAN KREMER 

SWISSAIR 'FLIGHT SR 168", which arrived at Boston, Massachusetts, from 

foreign, on September 17, 1973. Alien passengers involved: JOSE DA SILVA 

and MARIE G. DA SILVA 

BASIS FOR FINIS: Act of 1952—Section 273(b) [8 U.S.C. 1323(b)] 

ON BEHALF OF CARRIER: ON BEHALF OF SERVICE: 

Steven R. Sehlam, Esquire Irving A. Appleman 

335 Broadway Appellate Trial Attorney 

New York, New York 10013 

The District Director imposed fines in the total amount of $3,000 upon 

the carrier Swissair for three violations of section 273(a) of the Immigration and Nationality Act, and he denied the carrier's requests for remis272 
Interim Decision #2403 

sion of the fines. The carrier has appealed from the district director's 

decisions, and has also requested that the cases be remanded to the 

district director. The requests for remand will be denied, and the 

appeals will be dismissed. 

The evidence of the carrier's liability under section 273 is'eOntained in 

official Service records, prepared by immigration inspectors upon the 

arrival of the alien passengers, indicating that the aliens' passports 

contained no visas. Counsel has conceded that the carrier's employees at 

the point of embarkation failed to check whether the alien passengers 

involved had valid visas (0.A. p: 2). Affidavits from the carrier's' employees contained in the records are to the same effect. No evidence has 

been submitted to show that the passengers were in possession of the 

proper visas. • 

Counsel contends that the.imposition of the fines did not comport with 

due process because the carrier was not given an 'opportunity to crossexamine the immigration inspectors who prepared the official forms. 

This argument is similar to the one rejected by us in Matter of Swissair 

"Flight #164," 15 I. & N. Dec. (BIA 1974). However, counsel points to 

some differences between that case and those presently before us. 

In Matter of Swissair "Flight #164," supra, the carrier made no 

request for a personal interview pursuant to 8 CFR 280.12, and no 

specific request for an opportunity to cross-examine the immigration 

inspector was presented to the district director. In both of the cases 

presently before us, the carrier requested personal interviews pursuant 

to 8 CFR 280.12, and in addition requested that the immigration inspectors who prepared the official forms be present at the interviews for 

crosslexamination. The interviews were scheduled; but the district director informed counsel by letter that the immigration inspectors would 

not be available for cross-examination. Thereupon, counsel withdrew 

the requests for personal interviews, and requested instead to be furnished with copies of 'the official forms prepared by the immigration 

inspectors. The. district director complied with that request. 

We do not believe that there is any significant difference between the 

cases presently before us and Matter of Swissair "Flight #164," supra. 

In each case the material fact is that there is an official Service record 

indicating that the alien passenger arrived without the required visa, 

and the carrier has submitted nothing to challenge the reliability of the 

official record.' Moreover, in each case the carrier conceded that its 

employees neglected to check the alien passenger's passport for a visa. 

We note that Rule 803 of the Federal Rules of Evidence, P.D. 93-595, approved 

January 2, 1975; effective July 1, 1975, provides that records of a regularly conducted 

activity, and public records and reports, are admissible in court as an exception to the 

hearsay rule, "even though the declarant is available as•a witness," unless circumstances 

are such as to "indicate tack of trustworthiness." 

373 
Interim Decision #2403 

Due process in an administrative proceeding is not a fixed concept, 

but rather varies according to the nature of the case and a weighing of 

the private and governmental interests involved. Richardson v. 

Perales, 402 U.S. 389,401-02 (1971); Goldberg v. Kelly, 397 U.S. 254, 

262-63 (1970); Cafeteria & Restaurant Workers Union v. McElroy, 367 

U.S. 886, 895 (1961); Blackwell College of Business v. Attorney General, 454 F.2d 928, 932 (D.C. Cir. 1971). 

In each cf the present cases, there is no reason to expect that, if 

questioned by counsel, the immigration inspector could add anything of , 

significance to the information contained in the official record of the 

alien's arrival. Balanced against this is the great inconvenience to the 

Service in being required to take immigration inspectors away from 

their duties and have them available to testify on a routine basis. 2We 

find no useful purpose which would be served by requiring the Service 

to permit cross-examination of the immigration inspectors in the present cases. 

Counsel also has raised the contention that due process in fine proceedings requires that the Government include the alien's passport, or a 

copy thereof, in the record. We rejected that argument in Matter of 

Swissair "Flight #164," supra, and we adhere to that rejection. See 

Cunard S.S. Co. v. Elting, 97 F.2d 373,376-77 (C.A. 2, 1938). 

Under the circumstances of the present cases, we conclude that the 

proceedings complied with due process, and that the evidence is sufficient to establish the carrier's violation of section 273(a) of the Act in 

each case. See Matter of Swissair "Flight #164," supra. 

Counsel makes several challenges to the constitutionality of section 

273 of the Act. However, we have no authority to pass upon the 

constitutionality of the statutes which we administer. Matter of Swissair "Flight #164," supra; Matter of Santana, 13 I. & N. Dec. 362 (BIA 

1969); Matter of L —, 4 I. & N. Dee. 556 (BIA 1951). 

Although the carrier requests remission of the fines, counsel makes no 

claim that the circumstances of these eases come within the remission 

provision of section 272(c) of the Act (0.A. p. 4). On the basis of the facts 

of record, we conclude that no valid claim for remission under section 

273(c) could be presented, since by the exercise of "reasonable diligence" the carrier could have ascertained that the passengers in question were aliens and that visas were required. 

2 The potential effect of having to deploy personnel in the foregoing manner is great in 

view of the large number of alien passengers who arrive in the United States from foreign 

countries by air and sea and who are subject to inspection. In the year ending June 30, 

1973, there were 5,490,705 aliens who arrived in the United States by air and sea from 

foreign countries (exclusive of travel over land borders (except Mexican air travel), 

military personnel, crewmen, and travelers between the United Melee end its possessions). 1973 Annual Report of the Immigration and Naturalization Service, at 92. 

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Interim Decision #2403 

The district director's decisions were correct. The appeals will be 

dismissed. Counsel's requests for remands to allow cross-examination of 

the immigration inspectors will also be denied. 

ORDER: The requests for remand are denied, and the appeals are 

dismissed. 

375