of the District Director at New York (apparently dated August 25, 1961) informed counsel that no action could be taken upon his request for cross-examination of the alien passenger.

Our action in this case, which permits the carrier to present additional pertinent evidence including the testimony of the alien passenger, does not imply that it is the duty of the Service to render assistance to the carrier in presenting its defense, nor that it is the obligation of the Service, in a case such as this, to have the passenger available for cross-examination by the carrier. On the contrary, we do not hold that the carrier was entitled to cross-examine the alien during the exclusion proceeding nor that it was necessary to notify the carrier, prior to the deportation of the alien from the United States, concerning the possible institution of fine proceedings. However, the carrier here has assumed the full responsibility for producing the alien before the American Consular Officer in the Netherlands, and counsel has suggested that he will bear the expense of questioning the alien through interrogatories and cross-interrogatories. Under the circumstances, the case is simply one in which the carrier desires to present the testimony of a witness for the consideration of the District Director, and we do not believe there is any basis for refusing to accept the testimony merely because the witness happens to be the alien passenger involved. On the other hand, if an alien departs from the United States and the carrier is unable to locate him, the carrier would be in the same position as any other litigant who is unable to produce a witness.

The question of whether or not this alien passenger had abandoned his residence in the United States and the question of whether he had or had not been absent for over one year are clearly matters pertinent to the carrier's defense. Assuming that the carrier will produce the alien before the American Consular Officer, we believe that will be the appropriate method of affording the carrier an opportunity to question the alien as a witness in its defense.

The motion of the Service dated December 13, 1961 refers to "an unwarranted reexamination of a duly-arrived-at exclusion ruling of a special inquiry officer, after hearing” (p. 5) and contains the assertion that counsel is seeking to make a collateral attack on the special inquiry officer's findings (p. 7). At the exclusion hearing, the special inquiry officer made no formal findings of fact but it is clear that he did hold that the alien required an immigrant visa. The Service takes the position that the carrier is conclusively bound by such a finding of a special inquiry officer and apparently it claims this would be true regardless of what facts a carrier might be able to present to show that, in a particular case, the alien did not require a visa. None of the cases cited by the Service is authority for such a proposition, and the Service has not brought to our attention any provision of the statute

or regulations which would preclude a carrier from presenting evidence that an arriving passenger actually did not require a visa.

In Matter of H—, 7 I. & N. Dec. 407, 409 (1957), where there had been a prior judicial decision, we discussed the distinction between res judicata and collateral estoppel by judgment. Although the Service has refrained from using these terms, it apparently is seeking to apply these doctrines to the special inquiry officer's finding that the alien required a visa. However, these doctrines can be utilized only where the same parties are involved in the two proceedings and they cannot be applied to this carrier who was not a party to the exclusion proceeding.

The carrier is not attacking the exclusion order as such and any decision which may eventually be made with respect to the carrier will have no effect on the finality of the order excluding the alien. In other words, after the carrier has had the opportunity of presenting its defense in full, the District Director will be able to pass on whether the carrier is subject to fine, depending on whether this alien did or did not require a visa. However, if the District Director holds that the alien did not require a visa, the alien himself will not be able to attack the exclusion order since it became final as to him on February 20, 1961 under § 236 of the Immigration and Nationality Act.

The Service stated (motion of December 13, 1961, p. 8) that the Board had uniformly rejected attempts of carriers to bring fine proceedings within the Administrative Procedure Act and the decision in Wong Yang Sung v. McGrath, 339 U.S. 33 (1950). Although this statement of the Service is correct, it has no particular relevance since counsel has not claimed that the Administrative Procedure Act or the Sung decision have any applicability to this fine proceeding.

As counsel indicated, the court made the following statement in Lloyd Sabaudo Societa Anonima v. Elting, 287 U.S. 329, 336-337 (1932): “We think it clear *** that the statute, as it has been consistently construed administratively, contemplates that the Secretary should fairly determine, after a hearing and upon the evidence, the facts establishing its violation." The pertinent regulations are contained in Part 280, Title 8, Code of Federal Regulations. 8 CFR 280.14 specifically refers to testimony adduced at the interview, and we believe it is immaterial that Part 280 contains references to "personal appearance" and "personal interview" rather than to a hearing. We hold that the regulations in Part 280 provide due process.

In its motion of December 13, 1961 (pp. 5-9), the Service argued that, on the basis of all the facts of record, the alien required a visa and the carrier did not exercise reasonable diligence. It may be that this will be our eventual conclusion. However, the important consideration in this case is that 8 CFR 280.12 specifically provides: “*** the

evidence in opposition to the imposition of the fine and in support of the request for mitigation or remission may be presented at such interview." Here we have a case in which the carrier desires to present the alien's testimony for the consideration of the District Director, and the Service seeks to preclude the presentation of such evidence. We find no merit in the contention of the Service that the alien's testimony would be of no value to the carrier. After the testimony is taken, it may be of no value or it may even be damaging to the carrier. However, the regulation specifically provides that the carrier may present evidence in opposition to the imposition of fine and, if it desires to present the alien's testimony, we believe the carrier is entitled to do so. The Service asserted (motion of December 13, 1961, p. 8) that the requirements of procedural due process stated in 8 CFR 280 "were punctiliously followed in this proceeding". Actually, in certain respects the requirements of the regulation were not observed. In the first place, when the carrier protested the imposition of fine, it requested cross-examination of the alien. The District Director's letter stated that no action could be taken upon this request and referred to the alien's departure from the United States. We have held above that a carrier may present the alien passenger as its witness and that the testimony may be taken through interrogatories before an American Consular-Officer. The District Director's refusal to take action on counsel's request was in error since it precluded the carrier from presenting certain evidence in opposition to the imposition of a fine as provided by 8 CFR 280.12.

In another respect also there was a failure to comply with the regulation. Where a personal appearance is requested, 8 CFR 280.13(b) states that the case shall be assigned to an immigration officer and provides: "The immigration officer shall prepare a report summarizing the evidence and containing his findings and recommendation. The record, including the report and recommendation of the immigration officer, shall be forwarded to the district director" (emphasis supplied). 8 CFR 280.14 specifically refers to the "record made under § 280.13" and sets forth certain additional matters to be included. The record before us does not contain the report summarizing the evidence, prepared by the immigration officer to whom the case was assigned, nor his findings and recommendation.

A third matter is that 8 CFR 280.14 provides that one of the items to be included in the record is "documentary evidence and testimony adduced at the interview" (emphasis supplied). Since we were not even furnished the immigration officer's report under 8 CFR 280.13 (b), we are unable to determine precisely what transpired at the personal interview, and we believe the present record is defective for that reason.

We do not regard the copy of the District Director's letter of August 25, 1961 as complying with these specific provisions of the regulations. The only statement in it relating to the personal interview appears on page 2 where it was stated that a copy of the exclusion hearing and all other evidence of record was reviewed by counsel's representative, Mr. Edward L. Dubroff, during a personal interview conducted by Inspector Berry on August 4, 1961.

Paragraph (1) of 8 CFR 3.1(d) provides that, subject to any specific limitation, "the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case", and paragraph (2) provides that the Board may return a case to the Service for such further action as may be appropriate without entering a final decision on the merits of the case. At the time of our original consideration of the case, we concluded that, before rendering a decision on the merits, it was appropriate and necessary that the carrier be permitted to present its defense in full, including the testimony of the alien.

In its memorandum of March 6, 1962, the Service stated that our decision was contrary to long-standing administrative practice and that it directs a major departure from existing regulations. Actually, there never has been any practice that a carrier is to be precluded from presenting his defense in full, whether the defense consisted of the testimony of our witnesses or the testimony of the alien passenger. Our decision also is not a departure from existing regulations. On the contrary, it is merely to require that the existing regulations be observed.

The Service submitted copies of several decisions of the Board, one of which was dated June 16, 1950 and the others bearing dates between 1957 and 1961. These are unreported decisions which are not available to counsel and he has not been furnished copies of them nor an opportunity to differentiate between these decisions and his client's case. One of the matters to which the Service invited attention was our statement that the regulations do not require that the carrier be afforded the opportunity of being present at the exclusion hearing of the alien passenger. In these cases, the carrier was apparently claiming that this was a fatal defect which barred the imposition of a fine, and we rejected the contention. Here, counsel makes no such claim but merely asks that the carrier be permitted to now examine the alien and present his testimony. The other point to which the Service invited attention in these unreported decisions is that a fine was properly imposed where the procedure specified in the regulation was followed. Here, as we have pointed out, certain requirements of the regulation were not observed.

The Service cited (motion of December 13, 1961, pp. 5 to 8) judicial authority for statements that the carrier is charged with whatever knowledge it would obtain from a competent examination of the alien; that the authority to exact penalties is an incident to the vast power of Congress to control the entry of aliens; that it is proper for Congress to invest administrative officers with the power to assess penalties; that the courts have no direct function in this process except to correct abuses; and that the Attorney General's decision as to the weight to be given to the evidence in a fine proceeding is final provided that the decision is supported by substantial evidence. All of these principles are clear and we are well aware of them. However, counsel does not dispute any of these; they are not involved in this case; and we do not perceive why the Service felt it necessary to discuss matters which are not at issue.

The Service stated (motion, pp. 8-9) that a "careful review of the pertinent cases" [not otherwise identified] had failed to reveal any authority in an administrative fine proceeding for a direct attack by a carrier on the basic exclusion proceeding, and that the carrier's remedy is a possible defense of due diligence notwithstanding the fact of a proper exclusion. In a fine proceeding under § 273, there are two defenses open to a carrier-(1) that there has been no violation of the statute which is an absolute defense and (2) that, although the statute was violated, the fine should be remitted or refunded pursuant to § 273 (c). The position of the Service seems to be that, as soon as there is a final decision in an exclusion proceeding, this wipes out the first or absolute defense a carrier might have (even though the carrier is not a party to the exclusion proceeding) and from that point the carrier is to be relegated to the possibility of securing remission or refunding of the fine if it can establish the requirements of § 273 (c).

As was the case here, the exclusion proceeding would ordinarily be completed before the carrier had had an opportunity to present any evidence in the fine proceeding. The effect of the Service position, in all or most cases, would be to preclude a carrier from offering any evidence to show that there had, in fact, been no violation of the statute. In order to sanction a course so drastic, we would expect the Service to point to some specific authority for depriving a carrier of the possibility of showing that the statute had not been violated, particularly since the provisions relating to the imposition of fines are penal in nature. It is a well-established principle that penal statutes are to be construed strictly. Federal Communications Commission v. American Broadcasting Co., 347 U.S. 284, 296 (1954). The Service has not cited any authority to sustain its theory, and we believe there is ample support for a contrary position.