an automatic order of deportation to Hong Kong or in the alternative, to India, in the event he failed to depart as required. The prolongation of the time the respondent has spent in the United States by virture of the appeal and the motion to reconsider has not been attributable to the respondent but from considerations. arising out of the possible applicability of 8 CFR 3.4 wherein the departure of the respondent might be considered as a withdrawal of the appeal.

The facts as to the nature of the respondent's employment are not in dispute. In behalf of his employer, Mohan's Ltd., of Hong Kong, a manufacturer of custom or made to measure men's clothing, the respondent travels to various cities in the United States and takes orders from customers whom he does not solicit but who contact him as the result of literature distributed by his employer in this country making known his itinerary, the items he has available for sale and in what hotels he may be contacted. The respondent displays swatches of cloth from which the customer makes his choice, he takes the customer's measurements and sends the order together with the purchase price to his employer in Hong Kong. This practice succeeded a prior practice engaged in by the respondent's employer in which the employer made sales in this country entirely through the use of catalogs, the individual taking his own measurements and then sending the order to Hong Kong. However, complaints arose due to poor fit and the present procedure was adopted. The respondent earns a salary of about $100 a month plus a bonus depending upon the volume of his business, the amount of such bonus being undisclosed. The employer sends respondent's salary to his parents in India and the respondent receives only expense money amounting to about $800 per month while in the United States.

Aware that the term "visitor for business" contemplated only "intercourse of a commercial character," and bearing in mind that the significant considerations to be stressed were that there is a clear intent on the part of the alien to continue a foreign residence and not to abandon any existing domicile; the principal place of business and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country; the business activity itself need not be temporary and indeed may long continue; the various entries in the United States made in the course thereof must be individually or separately of a plainly temporary nature in keeping with the existence of the two preceding considerations, we found that the respondent fell within the category of a visitor for business 1 Karnuth v. Albro, 279 U.S. 231.

as set forth in the law and regulations. We found that the business was intercourse of a commercial character, and the fact that he took measurements of prospective retail customers in the United States in connection with the business, under the circumstances of the case, did not warrant a finding that the respondent was not classifiable as a visitor for business.

We recognize that the line of demarcation between a visitor for business, and a person in seeking to enter as a nonimmigrant for employment or labor for which the procedure referred to 22 CFR 41.55, the provisions of section 214 (c) of the Act and the supporting evidence required by 8 CFR 214.2 (h) (ii) is applicable, is sometimes difficult to draw. However, the Act in section 101 (a) (15) (B), still retains the category of a visitor for business. There is no indication that Congress intended to eliminate this category. Upon a determination that the business the respondent was engaged in was intercourse of a commercial character, and after carefully weighing the significant considerations set forth in prior administrative decisions, we came to the conclusion that the respondent was truly a visitor for business. The argument of the Service that the respondent is not a "businessman" within the meaning of the statute appears to be fallacious. The cases set forth in Matter of G-, 6 I. & N. Dec. 255, in note 3 list a great many cases in which it was held that the alien was entitled to the status of a temporary visitor for business. An examination of these cases shows that the great majority were aliens who could not be considered as "businessmen" or even skilled, but in every case there was involved international trade or commerce and the employment was a necessary incident thereto.

Upon a full consideration of the matters set forth in the motion, we affirm our prior decision. The motion will be denied.

ORDER: It is ordered that the motion be and the same is hereby denied.

BEFORE THE ATTORNEY GENERAL

The decision of the Board of Immigration Appeals in this case holding the respondent Hotu J. Hira alias Harry Hira to be a temporary visitor for business within section 101 (a) (15) (B) of the Immigration and Nationality Act has been certified to me by the Board for review, pursuant to 8 CFR 3.1(h) (1) (iii), upon motion of the Commissioner of Immigration and Naturalization.

For the reasons stated in the Board's opinions of October 29, 1965 and March 1, 1966 the decision of the Board of Immigration Appeals is affirmed.

MATTER OF SS. CASTEL FELICE

In Fine Proceedings

NYC-10/52.896

Decided by Board September 27, 1966

(1) Liability to fine lies under section 231(b) of the Immigration and Nationality Act for failure of the carrier to present the necessary departure manifest for passengers (Form I-418) within 30 calendar days from the date of departure of the vessel, as required by 8 CFR 231.2(a), notwithstanding the delay in presenting the manifest was allegedly occasioned by loss in the mails.

(2) There is no provision in section 231 of the Act for mitigation or remission of a fine provided for therein once liability thereto has been established.

BASIS FOR FINES: Act of 1952-Section 231(b) [8 U.S.C. 1221] and 8 CFR 231.2 (a).

This matter originally came before us on appeal from a decision of the District Director at New York dated January 26, 1966, directing that administrative penalties totaling $11,310, $10 as to each passenger aboard the vessel at the time of its foreign departure, be imposed on the Navcot Corporation, as owner, agent, charterer, or consignee of the vessel, for failure to submit the required departure manifests (Forms I-418) as to the passengers in a timely manner. On April 4, 1966, we withdrew that order of the District Director and remanded the case to said official for the purpose of giving the carrier an opportunity to fully support its claim that the necessary manifests had been filed within the time required. Compliance was had with that order, and on June 21, 1966, the District Director again ordered the full fine imposed. He then certified the case to this Board for final decision.

It appears from the record before us that the following material facts exist without substantial controversy. On September 8, 1965, the vessel departed from the port of New York for the port of Southampton, England. The departure manifests (Forms I-418)

covering that foreign sailing of the ship were filed with the Immigration and Naturalization Service on October 12, 1965. This event, then, occurred 34 days after the departure of the vessel for foreign. The carrier originally contended that the required manifests were handed by the ship's purser to its agents at Southampton, England, with instructions that such documents were to be air-mailed to New York. It submitted an affidavit from the company representative at Southampton intimating that the manifests were mailed between September 18, 1965 and September 21, 1965.

After the case was remanded to the District Director at New York, the carrier alleged that the postal clerk employed by the vessel's agents in Southampton franked and posted all the ship's mail received from the vessel on September 21, 1965 and September 22, 1965. The affidavit submitted by the postal clerk also included a photostat of "postbook" listing the mailings for September 20, 21 and 22, 1965. Among the listings for September 21, 1965 appeared "a/c Castel F. Ship's Mail L 3-11-8," which the carrier claimed contained the required manifests. As noted by the District Director, however, this affidavit by the postal clerk merely gives rise to conjecture that the manifests were mailed, since the contention that they were was based only upon the weight and cost of the package mailed. In this connection, the District Director also noted that the postal clerk was in the habit of registering certain types of mail, but that the manifests were not registered.

The carrier has also stressed that if the manifests were mailed, as it believes the foregoing establishes, they would have been received in New York well in advance of the filing deadline, and that since they were not so received it appears that they must have been lost in the mail because they were never returned to the carrier. It also stresses that on the morning of the vessel's departure from New York, one of its representatives was on board the ship taking care of the necessary departure procedures, and at that time discussed the preparation of the necessary immigration forms with the vessel's purser and emphasized to the latter the importance of having the passenger manifests completed promptly and accurately and mailed back to the United States upon the vessel's arrival at its first port of call which was to be Southampton. In addition, the carrier places great reliance upon evidence of record showing that when the manifests were not received in the carrier's New York office within the period of time reasonably to be expected, a representative of the carrier made persistent inquiry abroad as to the whereabouts of the necessary documents, and that it was such persistence

which resulted in new manifests being prepared and eventually submitted to the Service.

Despite the foregoing representations made by the carrier, we feel constrained to affirm the District Director's decision to impose the full penalty herein. Subsection (b) of section 231 of the Immigration and Nationality Act contains a general provision requiring submission of departure manifests before the foreign sailing of a vessel. It does, however, authorize the Attorney General to arrange for the delivery of manifests of outgoing persons at a later date in the cases of vessels such as this making regularly scheduled trips to ports of the United States. Subsection (e) of the statute also authorizes the Attorney General to prescribe the circumstances and conditions under which the manifests required by subsection (b) thereof may be waived.

Pursuant to the foregoing statutory authority, the Attorney General has promulgated 8 CFR 231.2 (a) which, insofar as here pertinent, required the departure manifests (Forms I-418) to be presented to the immigration officer at the port of departure within 30 calendar days from the date of departure. This is the only regulation here pertinent which the Attorney General has seen fit to promulgate pursuant to the authority invested in him by section 231 of the statute. It has the force and effect of law and is binding on all parties here concerned (Di Mieri v. Uhl, 96 F.2d 92).

Our inquiry ends with the establishment of the fact that the requirements of the regulation promulgated pursuant to statutory authority have not been met. The evidence of record, as hereinbefore summarized, establishes that we are confronted with precisely such a situation here. It does so not only to our satisfaction, but irrefutably and concededly. Thus, the requirements of subsection (d) of the statute requiring the imposition of the fines have been met. There is no authority to waive the manifest requirements of subsection (b) of the statute under circumstances or conditions other than those contained in the regulations promulgated by the Attorney General pursuant to the authority contained in the statute.

We find wanting the claim that the efforts made by the carrier's personnel to insure timely delivery of the manifests in this case, as hereinbefore outlined, constitute the imposition of the penalties herein an unjust result and an undue hardship calling for remission or substantial reduction in the amount of the fines. The circumstances relied on by the carrier in this respect are hazards of the trade which it must overcome. Also, there is no provision in the statute for mitigation or remission of the fines provided for therein once lia