cission. Cf. D'Andrea v. INS, 335 F.2d 377 (6 Cir., 1964), cert. denied 379 U.S. 999 (1965); Matter of Lugo-Guadiana, 12 I. & N. Dec. 726 (BIA, 1968). The respondent in this proceeding was not deprived of an opportunity to produce evidence in refutation of the testimony of his former wife and the witness, Collazo. Cf. Sercerchi v. Ward, 27 F. Supp. 437, 440 (D. Mass., 1939) and cases cited. Their unrefuted testimony is candid, unequivocal and credible. The good faith of the marital relationship is the very essence of this rescission proceeding and by its very nature is within the personal knowledge of the respondent. His failure to rebut the testimony of the Government witnesses does not diminish its quality when, as here, the case is clear cut. We conclude that the special inquiry officer has made a "fair assessment of the record." Cf. Peurifoy v. Commissioner, 358 U.S. 59, 61 (per curiam 1958). There is clear, unequivocal and convincing evidence that the respondent was not in fact eligible for adjustment of status under section 245 of the Immigration and Nationality Act, as amended. We affirm the order entered by the special inquiry officer and will dismiss the appeal. ORDER: It is ordered that the appeal be and the same is hereby dismissed. MATTER OF ORTEGA-MOJARO In Deportation Proceedings A-19107467 Decided by Board October 2, 1970 Under the authority of section 287, Immigration and Nationality Act, the immigration officer had the power without a warrant to detain and interrogate respondent on April 8, 1970, when he was a passenger in an automobile in Los Angeles County, California, as to his right to be or remain in the United States. Further, under 8 CFR 287.1(a) (1) and (2), the immigration officer had authority to apprehend respondent within a "reasonable distance" of an external border of the United States, which is defined by those regulations as 100 air miles from a border.* CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2) ]—Entry without inspection. ON BEHALF OF RESPONDENT: David C. Marcus, Esquire 215 West Fifth Street Los Angeles, California 90013 The respondent appeals the decision of the special inquiry officer finding him deportable as charged, denying his application for voluntary departure and ordering that he be deported to Mexico on the charge contained in the order to show cause. The appeal will be dismissed. The respondent is a 45-year-old male alien, who testified at the deportation hearing that he was not a citizen or national of the United States but was a native and citizen of Mexico. The respondent, on advice of counsel, refused to furnish any information at the hearing as to the time, place and manner of his entry into the United States. He did request the privilege of voluntary departure, but this was properly denied by the special inquiry officer because the respondent refused to testify as to his eligibility for such relief. * Affirmed, Ortega-Mojaro v. INS, No. 26580, C.A. 9, May 11, 1971; cert. den., No. 71-5014, Oct. 19, 1971. The respondent admitted, as alleged in the order to show cause, that he was not a United States citizen. Therefore, under section 291 of the Immigration and Nationality Act, 8 U.S.C. 1361, the burden of proof is upon him to show the time, place and manner of his entry into the United States. Since he has failed to do this he is deportable under section 241 (a) (2) of the Act as an alien who entered without inspection. Counsel contends that the respondent's apprehension in the United States was without probable cause and, therefore, the order to show cause was invalid. In answer to this, we simply point out that the respondent's deportability has been established by evidence that is clear, unequivocal and convincing aside from any evidence adduced by the immigration officer who apprehended the respondent on April 8, 1970 when he was a passenger in an automobile in Los Angeles County, California. Referring to the respondent's arrest, we find that the officer was acting within the authority granted to him by section 287 of the Immigration and Nationality Act in that he had the power without a warrant to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States. The officer further had the right under 8 CFR 287.1 (a) (1) and (2) to apprehend the respondent within a reasonable distance of an external border of the United States which, under said regulation, is defined as 100 air miles from a border. The immigration officer's power under said section 287 to detain a suspected alien for interrogation has been fully discussed and defined in United States v. Miranda, 426 F.2d 283 (9 Cir., 1970) and Yam Sang Kwai v. INS, 411 F.2d 683 (D.C. Cir., 1969), cert. denied 396 U.S. 877. Counsel's statement in the appeal that the respondent was denied a fair and impartial hearing is totally without foundation. He was given every opportunity to offer evidence that he was legally entitled to enter and remain in the United States, but not one shred of evidence in this respect was proffered. Accordingly, the appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed. MATTER OF NORTHWEST AIRLINES AIRCRAFT, "FLIGHT NUMBER 4" In Fine Proceedings SEA-10/61.167 Decided by Board November 12, 1971 (a) Where an arriving alien withdrew his application for admission, was remanded to the custody of the carrier, notice was thereupon served upon the carrier to remove him from the United States, and the alien thereafter absconded, liability to fine is incurred under section 271 of the Immigration and Nationality Act for failure to prevent his unauthorized landing. (2) Where, without further safeguards, the carrier took the alien involved to the hotel and advised the hotel manager the alien would be picked up the following morning for deportation, mitigation of the $1,000 imposed fine beyond the extent of $300 is not warranted, since there is no indication the carrier exerted earnest efforts to locate the alien after he absconded and the alien is still at large in this country. BASIS FOR FINE: Act of 1952-Section 271 (a) [8 U.S.C. 1323] IN RE: NORTHWEST AIRLINE AIRCRAFT, "Flight Number 4," which arrived at the port of Seattle, Washington, from foreign, on May 5, 1971. Alien passenger involved: CANISIO BUENA, JR. aka TEDDY VILLAFLOR ON BEHALF OF CARRIER: Clifford O. Weiger, Director— Facilitation Northwest Airlines, Inc. Minneapolis-St. Paul Interna tional Airport St. Paul, Minnesota 55111 ON BEHALF OF SERVICE: as The District Director, Seattle, Washington, in a decision dated June 21, 1971, held that Northwest Airlines, Inc., owners/operators of the above-described aircraft, had incurred liability to an administrative penalty of $1,000 for failure to prevent the illegal landing of the above-named alien passenger in the United States at a time and place other than as designated by an immigration officer. However, said official found present herein factors which, in his opinion, merited mitigation of the penalty to the extent of $300. Thus, he permitted a fine of $700 to stand herein.1 It appears from the record before us that the following material facts exist without substantial controversy. The carrier brought the male alien named above, a native and national of the Republic of the Philippines, to the United States as a passenger at the time, place and in the manner described above. He presented a passport issued by the Republic of the Philippines containing a nonimmigrant visa of the B-2 (temporary visitor) type. However, the examining immigration officer ascertained that the passport had been altered and did not relate to the passenger. Thereupon, the passenger was informed that his application for admission would have to be referred to a special inquiry officer, or that he could withdraw his application for admission without prejudice and return to the Philippines on the next available flight. The alien chose the latter course and then was remanded to the custody of the airline which brought him to the United States. At that point, a Form I-259, Notice to Remove the Alien from the United States, was served upon a representative of the carrier, directing that the alien be removed to the Philippines on May 6, 1971. The carrier did make hotel reservations for the passenger, took him to the hotel and advised the hotel manager that he was to be deported and would be picked up for departure the following day. In the early hours of the morning thereof, however, he absconded and to date has not been apprehended. The Congress, in enacting this section of the law, made it the duty of the owners, officers and agents of carriers to prevent the landing of aliens in the United States at any time or place other than as designated by immigration officers. Clearly, the intention of the statute was to make imperative the duty of preventing such unlawful landing of aliens as occurred here. That is, section 271 of the Immigration and Nationality Act calls for the impostition of a penalty (fine) where, as here, the persons specified in the statute failed in their duty to prevent an illegal entry. In other words, the statute creates a positive duty on the part of the 1 The apparent confusion in the mind of the carrier's representative stemming from the District Director's interchangeable use of the terms "fine" and "penalty" (oral argument, p. 5), which are synonymous and so used throughout the statute (see sections 271, 272 and 273), was apparently resolved to his satisfaction when it was explained that the total sum for which the carrier was responsible was $700 (oral argument, p. 8). |