F-3010
Decided by Board July 16, 1948
Fine — Failure of aircraft commander to submit in typewritten or printed form the passenger card (Form I-467) — Section 14, Immigration Act of 1917 — Requirement under 8 C.F.R. 116.8 (b) (2) relating to air passenger manifests distinguished from similar manifests required specifically of water carriers under Section 12 of the Immigration Act of 1917 — Amendment of 8 C.F.R. 116.7, July 1, 1948.
(1) The provisions of 8 C.F.R. 116.8 relating to incoming air passenger manifests did not require the Form I-467 (referred therein as a "passenger card") to be typewritten or printed (see amended 8 C.F.R. 116.7, effective July 1, 1948).
BEFORE THE BOARD
Discussion: This record is before us on appeal from an order entered by the Assistant Commissioner imposing a fine under section 14 of the Immigration Act of 1917 for failure on the part of the aircraft commander to submit in typewritten or printed form the passenger card (Form I-467) required in connection with the arrival of the above-named aliens aboard the commercial aircraft NC-45341.
The supporting record establishes that Plane NC-45341 arrived at New York City from France on September 13, 1947, having on board the above-named alien passengers. At the time of arrival handwritten passenger cards (Form I-467) were submitted by the appellant for the named alien passengers. The Assistant Commissioner finds that under the regulations the passenger cards (Form I-467) should have been typewritten or printed in the English language. Accordingly, the Assistant Commissioner assessed a $10 fine for each alien passenger concerned, as provided by section 14 of the 1917 Act.
Sections 12, 13, and 14 of the Immigration Act of 1917, by their own terms, relate only to water carriers. Section 12 of the 1917 act ( supra) specifically requires the master of a "steamer, sailing or other vessel * * *" to deliver
to the immigration officers at the port of arrival typewritten or printed lists or manifests made at the time and place of embarkation of such alien, United States citizen or national on board such steamer or vessel.
The foregoing sections of the 1917 act ( supra) are made applicable to air carriers by regulations prepared under the authority conferred upon the Attorney General by section 7 (d) (3) of the Air Commerce Act of 1926 (49 U.S.C. 177 (d)). This section of the 1926 act ( supra) reads as follows:
The Attorney General is authorized * * * (3) by regulation to provide for the application to civil air navigation of the laws and regulations relating to the administration of the Immigration laws to such extent and upon such conditions as he deems necessary.
Pursuant to this authority the Attorney General promulgated part 116 of title 8, C.F.R. wherein he (the Attorney General) applied to civil air navigation such regulations relating to the administration of the immigration laws as he deemed practical and necessary. Section 116.52, title 8, C.F.R. in part provides that aircraft operating in —
foreign commerce or between areas of the United States shall for the purpose of the immigration laws and regulations be subject to the same requirements and liabilities as are vessels (operating by water) except as otherwise provided in this part or by statutes specifically relating to aircraft.
Section 116.57 of title 8, C.F.R. applies the provision of sections 12, 13, and 14 of the Immigration Act of 1917 (manifest provisions relating to water carriers) to air carriers. It provides that the aforementioned sections of the basic Act of 1917 —
shall be complied with as required by sections 116.8 and 116.9 (title 8, C.F.R.) as to passengers arriving or departing on aircraft.
The issue before us is to determine whether the regulation (section 116.8 (b) (2)) relating to incoming air passenger manifests requires the Form I-467 referred to therein as a "passenger card" to be typewritten or printed in English as is specifically required for similar manifests of water carriers under section 12 of the 1917 act. Section 116.8 (b) (2) reads in part as follows:
(b) An aircraft commander's general declaration shall contain the following information:
(2) A passenger manifest or an air passenger manifest attached to the general declaration. In either case the manifest shall show, as to each passenger, name in full (family name, given name), full permanent address, age, sex, nationality, passport number, and date, but if a passenger is a citizen of the United States and has no passport the manifest shall show the date, state, city, or town in which the citizen was born, if a citizen of the United States by birth, or if a citizen by naturalization, the date, name of court, and place of naturalization. Additional facts as to each alien passenger shall be furnished on passenger cards except in the cases not required by the immigration instruction card for aircraft.
It is noted from the foregoing that this section does not follow identically the requirements imposed by section 12 of the 1917 act. It does not specify that the additional data concerning each alien passenger to be furnished on the "passenger card" (Form I-467), be typewritten or printed in English. Prior to its amendment July 30, 1947, section 12 of the 1917 act set forth in detail the information to be secured on incoming manifests for vessels. Form I-467, adopted May 1, 1947, prior to the amendment referred to, omits many of the items required by section 12 as it was then composed.
It appears, therefore, that the regulations as drafted were not intended to follow the form but only the substance of section 12 to such extent and upon such conditions as the Attorney General deemed them practicable for the operation of aircraft. The regulation as drafted does not state therein that the "passenger card" (Form I-467) must be typewritten or printed in English, nor is this requirement printed on the form itself. At a minimum it can be said that there is ambiguity insofar as the regulations on this requirement are concerned. A penalty, however, should never be based on an ambiguity. Under the circumstances, therefore, we are unable to interpret the regulations as requiring by implication the typing or printing of the form in question.
Our position in this regard is further strengthened by the recent amendment of section 116.7, title 8, C.F.R. (effective July 1, 1948) which, among other things, specifically requires that the manifest forms and the entries thereon must be "dittoed, typewritten, or printed in the English language." The deliberate selection in a statute of language differing from that of earlier acts on the subject indicates that a change of law was intended. Brewster v. Gage, 280 U.S. 327 (January 1930). We conclude that the fine imposed by the Assistant Commissioner will not lie.
Order: It is directed that the appeal be and the same is hereby sustained.