Cite as 23 I&N Dec. 38 (BIA 2001)

Cite as 23 I&N Dec. 38 (BIA 2001)

Interim Decision #3444

In re NORTHWEST AIRLINES FLIGHT NW1821

File A99 980 066 - Detroit

Decided March 28, 2001

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A carrier is subject to fine under section 231(b) of the Immigration and Nationality Act,

8 U.S.C. § 1221(b) (Supp. IV 1998), when it fails to file a properly completed Form I-94T

(Arrival-Departure Record (Transit Without Visa)) for an alien who is a transit without visa

passenger not departing directly on the same flight.

Pro se

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Renee L. Renner,

Acting Appellate Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman;

SCIALABBA, Vice Chairman; HEILMAN, HOLMES, HURWITZ,

VILLAGELIU, FILPPU, COLE, GUENDELSBERGER, MATHON,

ROSENBERG, JONES, GRANT, MOSCATO, MILLER, BRENNAN,

ESPENOZA, and OSUNA, Board Members.1

COLE, Board Member:

In a decision dated June 17, 1998, the director of the Immigration and

Naturalization Service National Fines Office (“director”) imposed

administrative fines totaling $300 for one violation of section 231(b) of the

Immigration and Nationality Act, 8 U.S.C. § 1221(b) (Supp. IV 1998). The

carrier has appealed. The appeal will be dismissed.

I. BACKGROUND

The record reflects that a passenger was brought to the United States under

the terms of the Immediate and Continuous Transit Agreement Between a

Transportation Line and United States of America (special direct transit

procedure) (Form I-426). The passenger departed the United States on

December 21, 1997, on board Northwest Airlines Flight NW1821. A departure

manifest, i.e., a Form I-94T (Arrival-Departure Record (Transit Without Visa)),

was not received for the alien passenger.

1

Board Member Kevin A. Ohlson did not participate in the decision in this case.

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Interim Decision #3444

On April 4, 1998, the director issued a Notice of Intention to Fine Under

Immigration and Nationality Act (Form I-79) to the carrier for failure to submit

a Form I-94T upon the departure of the alien passenger. The carrier replied to

the Notice of Intention to Fine, arguing that no fine could be imposed under

section 231 of the Act because that section specifically refers only to Form

I-94 (Arrival-Departure Record). The carrier also asserted that the penalties

related to Form I-94T are listed in Form I-426 and 8 C.F.R. §§ 212.1(f) and

238.3 (1997).2 The carrier asserted that because there was no reference to

section 231 of the Act in these forms and regulations, the omission indicates

that section 231 was never intended to apply to Form I-94T. Finally, the carrier

argued that because there are higher performance standards already in place for

TWOV alien departures from the United States, the regulatory authorities did

not need to include Form I-94T in provisions regarding Form I-94, which are set

forth in section 231 of the Act.

On June 17, 1998, the director issued a decision finding it undisputed that the

alien passenger was transported to the United States under the terms of the

Immediate and Continuous Transit Agreement; that the alien passenger departed

the United States on the same day on Northwest Airlines Flight NW1821; and

that a departure manifest form for the alien passenger was not received. The

$300 fine was imposed in full.

On appeal, the carrier asserts that no penalty can be imposed under section

231(d) of the Act for its failure to file the Form I-94T. It restates its earlier

arguments that section 231(b) of the Act does not encompass Form I-94T.

II. SECTION 231(b) OF THE ACT

Section 231(b) of the Act provides, in relevant part, as follows:

It shall be the duty of the master or commanding officer or authorized agent of every

vessel or aircraft taking passengers on board at any port of the United States, who are

destined to any place outside the United States, to file with the immigration officers

before departure from such port a list of all such persons taken on board. Such list

shall be in such form, contain such information, and be accompanied by such

documents, as the Attorney General shall prescribed by regulation as necessary

for the identification of the persons so transported and for the enforcement of

the immigration laws. . . . This subsection shall not require the master or

commanding officer, or authorized agent, owner, or consignee of a vessel or aircraft

to furnish a list or manifest relating (1) to an alien crewman or (2) to any other person

departing by air on a trip originating in the United States who is destined to foreign

2

Effective April 1, 1997, 8 C.F.R. § 238.3 was redesignated as 8 C.F.R. § 233.3, and

paragraph (b) was revised.

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Interim Decision #3444

contiguous territory, except (with respect to such departure by air) as may be required

by regulations issued pursuant to section 239. 3 (Emphasis added.)

In compliance with this directive, the Attorney General promulgated

regulations listing such additional or supplemental information. See 8 C.F.R.

§§ 231.1-231.3 (2001). The regulation at 8 C.F.R. § 231.2 provides, in relevant

part, as follows:

The master, captain, or agent of every vessel or aircraft departing from the

United States for a foreign place or outlying possession of the United States shall

present a departure manifest to the immigration officer at the port of departure. The

manifest must be in the form of a properly completed departure portion of Form

I-94, Arrival/Departure Record, for each person on board except for United

States citizens, and lawful permanent resident aliens of the United States. . . .

Whenever possible, the departure Form I-94 used shall be the same form given the

alien at the time of arrival in the United States. Carriers shall endorse the Form

I-94 with the departure information on the reverse of the form. . . . Submission

of Forms I-94 and I-92 to the immigration officer shall normally be accomplished

within 48 hours of the departure, exclusive of Saturdays, Sundays, and legal holidays.

Failure to submit departure manifests within this time period shall be regarded as

failure to comply with section 231(d) . . . . Aircraft manifests should not include I-94

forms for in-transit passengers referred to in paragraph (b) of § 231.1. (Emphasis

added.)

In addition, 8 C.F.R. § 231.1(b) states, in relevant part, as follows:

In-Transit Passengers. An Arrival/Departure Record, Form I-94, is not required

for an arriving, through-flight passenger at a United States port provided:

(1) The passenger will depart directly to a foreign place or outlying possession of the

United States on the same flight . . . .

Section 231(d) of the Act provides for a penalty of $300 for each violation

of section 231(b).

III. DISCUSSION

It is undisputed that the carrier did not timely submit a properly completed

Form I-94T. Under section 231(b) of the Act, the carrier is obligated to submit

a departure manifest, with exceptions in only two instances. Neither of the

exceptions listed in section 231(b) applies to this case. The alien was not a

3

Section 239 of the Act was redesignated as section 234 by section 304(a)(1) of the Illegal

Immigrant Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.

104-208, 110 Stat. 3009-546, 3009-587.

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Interim Decision #3444

crew member, nor was he departing by air to a contiguous foreign territory. See

Matter of Aero-Mexico “Flight #142”, 15 I&N Dec. 392 (BIA 1975). Because

neither of the two exceptions applies, the carrier is required by section 231(b)

to submit a departure manifest. As is noted by the carrier, section 231(b) of the

Act does not refer to Form I-94. Section 231 merely requires the carrier to

submit the departure information in the form and using the documents

prescribed by regulation.

The regulation at 8 C.F.R. § 231.2 provides that a carrier’s manifest under

section 231(b) of the Act must be in the form of a properly executed Form I-94.

It further provides that the only exception under which manifests should not

include I-94 forms concerns in-transit passengers referred to in 8 C.F.R.

§ 231.1(b), i.e., those who will depart directly to a foreign place or outlying

United States possession on the same flight. This exception is inapplicable in

the present case. Under the regulations, therefore, the carrier was clearly

required to submit a properly completed Form I-94. As it did not do so, the

carrier is liable for a fine under section 231(b) of the Act.

We conclude that the director properly relied on the carrier’s failure to file

a Form I-94T reflecting the alien passenger’s departure from the United States.

The front side of the Form I-94T designates the form as “I-94T

Arrival/Departure Record-Instructions, Transit Without Visa (TWOV).” The

form has a block for the arrival record and a block for the departure record. On

the reverse side of the form, the directions state, in part, as follows:

This form must be completed by the carrier with actual departure information. It is

to be submitted by the carrier to the Immigration and Naturalization Service at

the port of departure foreign no later than the third calendar day after arrival.

(Emphasis added.)

According to 8 C.F.R. § 103.2(a)(1) (2001),

[e]very application, petition, appeal, motion, request, or other document submitted on

the form prescribed by this chapter shall be executed and filed in accordance

with the instructions on the form, such instructions (including where an

application or petition should be filed) being hereby incorporated into the

particular section of the regulations in this chapter requiring its submission.”

(Emphasis added.)

It is clear from the directions on the back of Form I-94T that the carrier is

required to submit the form to the Service, as provided in 8 C.F.R. § 231.2.

Furthermore, the Immediate and Continuous Transit Agreement, Form I-426,

states, in paragraph number 2, that “the line shall present such documents for

each alien transported under this agreement as may be required by Title 8,

Code of Federal Regulations.” (Emphasis added.) Consequently, such

agreement requires the filing of Form I-94T. The carrier argues that Form I-426

and 8 C.F.R. §§ 212.1(f) and 238.3 impose the sole penalties for failure to file

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Interim Decision #3444

a Form I-94T. However, neither paragraph number 7 of Form I-4264 nor the

regulations refer to the requirement of filing a departure manifest, and they are

therefore inapplicable.

Because we find that the carrier has committed one violation of section

231(b) of the Act, it is liable for a fine in the amount of $300. Accordingly, the

appeal will be dismissed.

ORDER: The appeal is dismissed.

4

Paragraph number 7 of Form I-426 provides, in relevant part, “[t]hat for each and every

failure to transport any alien brought to the United States under this agreement . . . the line

shall pay . . . the sum of Five Hundred Dollars ($500) . . . .”

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