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Government officer on duty, an employee of the Department of Agriculture, who notified an immigration officer. The latter requested the pilot to report to him the following morning, which he did, accompanied by his passenger, an attorney in San Diego.

The statute authorizes the Attorney General to promulgate regulations setting forth, inter alia, reasonable requirements for the inspection of arriving aircraft, and passengers and/or crew thereof. Pursuant to this statutory authority, the Attorney General has promulgated 8 CFR 239.2 (c), which has the force and effect of law. In substance, that provision of the regulations prohibits the discharge or departure of any passenger or crewman from the aircraft without permission from an immigration officer, under pain of a $500 penalty.

The foregoing facts of record establish that we are confronted here with precisely such a situation as is contemplated by the regulation. Accordingly, liability to the fine has been incurred. This is not seriously challenged.

The District Director has ruled that remission of the fine provided for in section 239 of the statute is permissible only "if the violation was occasioned by emergency or forced landing of the aircraft." In other words, the District Director interprets the statute as permitting the fine to be forgiven in full only where a violation of 8 CFR239.2(d) is involved. This, however, is not correct.

Section 239 contains the specific provision that the $500 penalty incurred for a violation of any regulation made thereunder may be remitted, in accordance with such proceedings as the Attorney General shall prescribe. Clearly, therefore, the District Director's ruling has the effect of having the regulation exceed the scope of its statutory authority. To this extent, therefore, his decision is overruled. Despite the fact that such action is permissible here, we do not think that remission of the fine is merited. The pilot is admittedly experienced in international flights such as this one. We think a minimum penalty should be permitted to stand to keep him mindful of the inspection requirements in the future.

The Service report of investigation sets forth that the employee of the Department of Agriculture on duty at the airport telephonically informed an immigration officer of the aircraft's arrival and the fact that it had not been inspected. It also reflects that the immigration officer to whom this was made known then called the pilot's wife and requested her to have her husband report to the Government office the following morning (which he did). It then intimates that the Agriculture Department employee was under the impression that the pilot returned for inspection that afternoon as

the result of a telephone conversation with his wife putting him on notice of the fact that the immigration officer was looking for him. The testimony of the pilot and his passenger, however, negatives this adverse inference. The District Director appears to have accepted their statements in this respect. We agree with said official that the evidence of record shows that the pilot returned to report for inspection of his own volition.

The District Director has stressed that the pilot made a statement that he had not flown a private aircraft into the United States from a foreign country within the past five years whereas, in fact, aircraft arrival records at the airport involved reflect an arrival by the pilot from Mexico on August 15, 1963. The pilot, on the other hand, insists that he made no such statement and that the immigration officer who attributed it to him confused his statement with that of his-passenger who, according to the pilot, stated to the immigration officer that he was not mindful of the requirement of reporting because he had not used a private aircraft in the past five years, relying, instead, on commercial aircraft. The passenger in question, an attorney, has corroborated the pilot's claims in this respect. Accordingly, and in view of the following considerations, we discount this as an adverse factor.

The pilot and his passenger are both citizens of the United States. They brought back no merchandise from Mexico with them. Their trip was for bona fide business purposes. We are satisfied that the evidence of record establishes that the violation was unintentional on the pilot's part. We are also convinced that he became aware of this violation without outside influence, and that he thereafter made every reasonable effort to comply with the law and regulations, to wit: he returned to the airport the same afternoon to report; and he complied with the immigration officer's request to report again the following morning. We feel that the evidence shows that the operator of the aircraft was acting in good faith throughout. The operator apparently has no adverse immigration record despite several such flights in the past. It appears that the parties involved are reputable businessmen respected in their communities. The pilot was acting in that capacity as a matter of convenience for his passenger, and not for any immediate financial gain for his services as such. Under these circumstances, we think the penalty should be reduced to the bare minimum.

ORDER: It is ordered that the District Director's decision of January 5, 1965, be modified to provide for $375 additional mitigation, and that as so modified the decision of said official be and the same is hereby affirmed. The penalty permitted to stand is $25.

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MATTER OF PSALIDAS

In Deportation Proceedings

A-12783325

Decided by Board February 25, 1965

(1) Personal notice to defendant in Greece of intention to cancel his United States citizenship pursuant to section 15, Act of June 29, 1906, forwarded via the American Consul, Athens, was not vitiated by the Consul's remailing, which did not interrupt transit of notice which commenced with the registered mailing in New York and ended when received and signed for by defendant, and was adequate under both the federal statute and the laws of New York because it served reasonably to inform defendant of the legal steps which were being taken against him and afforded him an opportunity to appear and to defend his citizenship.

(2) Despite lapse of 5% months between date of order for publication and date publication commenced, judgment of U. S. District Court, New York, September 28, 1940, cancelling defendant's naturalization for presumptive fraud under section 15, Act of June 29, 1906, is not void for lack of jurisdiction since the order of publication required compliance with Rules 50 and 52, N. Y. Rules of Civil Practice, but made no provision for compliance with Rule 51 which provided that publication commence within 3 months of date of order; any defect in publication of notice was an irregularity rather than a jurisdictional defect and was corrected when personal notice was given to defendant by registered mail.

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]-Nonimmigrant-Remained longer.

Respondent is 27 years old, single, male, a native of Greece. He was admitted to the United States at New York on or about July 4, 1962, as a nonimmigrant visitor for pleasure. Thereafter, he was authorized to remain until September 15, 1962. He has not departed, and no application has been made to extend his stay beyond September 15, 1962. He claims United States citizenship through the naturalization of his father in New York before his birth. His claim to citizenship has been rejected by the Immigration and Naturalization Service. The special inquiry officer found that respon

dent has established good moral character and the financial ability to qualify for voluntary departure, and granted respondent voluntary departure with an automatic order of deportation if he fails to depart. Respondent appeals from that decision. The appeal will be dismissed.

Respondent's father, Panos Psalidas, was naturalized in the United States District Court for the Southern District of New York on April 13, 1931. He lived in this country from 1914 until 1935. On August 28, 1922, respondent's parents were married in New York. Panos Psalidas joined his wife in Greece on January 7, 1935. Respondent was born in Greece on December 14, 1936. It is said that Panos intended only to visit in Greece, and then to return with his wife and family to the United States. However, respondent's mother died in 1937, and Panos never returned. Respondent remained in Greece with his father from the time of his birth until his departure for the United States in 1962.

On June 29, 1938, the United States Attorney filed a petition in the United States District Court for the Southern District of New York to cancel the certificate of citizenship granted Panos Psalidas. The petition states that Panos Psalidas' last place of residence in this country was New York, within the jurisdiction of the court. This action is authorized by section 15 of the Act of June 29, 1906 (former 8 U.S.C. 405), which establishes a rebuttable statutory presumption that the naturalization was procured by fraud if within five years after the issuance of the certificate of naturalization the naturalized person should take permanent residence in any foreign country.1 On January 20, 1938, the United States Vice Consul at

1 Act of June 29, 1906: Sec. 15. That it shall be the duty of the United States district attorneys for the respective districts or the Commissioner or Deputy Commissioner of Immigation and Naturalization upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured. In any such proceedings the party holding the certificate of citizenship alleged to have been fraudulently or illegally procured shall have sixty days personal notice in which to make answer to the petition of the United States; and if the holder of such certificate be absent from the United States or from the district in which he last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought.

If any alien who shall have secured a certificate of citizenship under the provisions of this Act shall, within five years after the issuance of such

Athens, Greece executed a certificate of fraudulent naturalization of Panos Psalidas based on the fact that within five years after obtaining a certificate of naturalization he took up permanent residence in Greece, thereby demonstrating that at the time he became a citizen he did not intend to remain permanently in the United States.

On September 28, 1940, a default judgment revoking Panos Psalidas' naturalization was entered in the United States District Court for the Southern District of New York. The court ordered that the certificate of citizenship issued to him be cancelled, set aside, and surrendered. On December 2, 1940, the surrendered certificate of citizenship was forwarded to the Immigration and Naturalization Service. It is well established that when a grant of citizenship was extinguished by judicial cancellation for presumptive fraud prior to January 13, 1941,2 any status dependent upon that citizenship also was extinguished. Thefore, respondent lost his claim to United States citizenship based on his relationship to Panos Psalidas, if the judgment of denaturalization was valid and binding.

In 1955 respondent was an applicant for a fourth preference visa. He served in the Greek Army from October 1958 to June 1960, and he voted at national elections in Greece in 1956 and 1960. We do not reach the question of his possible expatriation by these acts, in view of our finding that respondent has had no claim to United States citizenship since his father's citizenship was cancelled on September 28, 1940.

Respondent contends that the court order cancelling his father's citizenship was improperly issued, in that the court was without jurcertificate, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the cancelation of his certificate of citizenship as fraudulent, and the diplomatic and consular officers of the United States in foreign countries shall from time to time, through the Department of State, furnish the Department of Justice with the names of those within their respective jurisdictions who have such certificates of citizenship and who have taken permanent residence in the country of their nativity, or in any other foreign country, and such statements, duly certified, shall be admissible in evidence in all courts in proceedings to cancel certificates of citizenship.

2

The Nationality Act of 1940, Section 338 (d), 8 USCA 738(d), made a distinction between cancellation for actual fraud and cancellation for presumptive fraud, but this change came too late to be of aid to respondent. Battaglino v. Marshall, 172 F. 2d 979 (2d Cir. 1949); Manha v. Brownell, 146 F. Supp. 411 (N.D. Cal. 1956).

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