E-080205
Decided by the Board February 16, 1953
Crewman — Summary procedure under section 252(b) of the Immigration and Nationality Act of 1952; when not effective — Deportation proceedings under section 242(a) of the act proper.
(1) The summary procedure set forth in section 252(b) of the Immigration and Nationality Act of 1952 under which the conditional permit to land may be revoked and the alien deported without a hearing comes into effect only if the crewman is found to have violated his status within the period of time for which he was permitted to enter ( 8 C.F.R. 252.2).
(2) Deportation proceedings under section 242(a) of the act are proper in the case of a crewman who was given a conditional permit to land under section 252(a)(1) and who was taken into custody under a warrant of arrest 2 days after his ship departed, he having failed to sail with his vessel.
CHARGE:
Warrant: Act of December 24, 1952 — Crewman — failed to comply with the conditions of such status.
BEFORE THE BOARD
Discussion: The case comes forward upon certification pursuant to the provisions of 8 C.F.R. 6.1(c).
The record relates to a native and citizen of Cuba, 46 years old, male, who last entered the United States at the port of Baltimore, Maryland on January 13, 1953 ex SS. Doxa as a member of the crew. He was given a conditional permit to land under the provisions of section 252(a)(1) of the Immigration and Nationality Act and went ashore on January 23, 1953. It appears that his ship departed on January 24, 1953, but the respondent failed to sail with his vessel. He testified that when he came ashore it was his intention to reship foreign but that he did not intend to sail with his own ship due to a physical ailment and prevailing conditions on board the vessel. He did not request nor was he granted a change of his nonimmigrant crewman status. However, he was taken into custody under a warrant of arrest on January 26, 1953, 2 days after the departure of his vessel.
The special inquiry officer has ordered that proceedings in this case be terminated upon the theory that deportation proceedings under a warrant of arrest issued pursuant to section 242 of the Immigration and Nationality Act and pertinent regulations were not proper and that proceedings should have been conducted against the subject alien pursuant to the summary procedure set forth in section 252(b) of the act and pertinent regulations.
We are not in agreement with the conclusion reached by the special inquiry officer. Under section 252(a) of the Immigration and Nationality Act, an alien crewman in possession of a conditional permit to land may be admitted for a period of time not exceeding 29 days during which the vessel upon which he arrived remains in port. The summary procedure set forth in section 252(b) under which the conditional permit to land may be revoked and the alien deported without a hearing comes into effect only if the crewman is found to have violated his status within the period of time for which he was permitted to enter. This is more clearly set forth in the pertinent regulation, 8 C.F.R. 252.2 which provides as follows:
(a) Violation of landing privilege. An alien permitted to land conditionally as a crewman under section 252(a)(1) of the Immigration and Nationality Act shall, within the period for which he was permitted to land, be taken into custody by an immigration officer without a warrant and made the subject of further proceedings under provisions of section 252(b) of the Immigration and Nationality Act and § 252.21 * * *. (Emphasis supplied.)
In the instant case, the vessel upon which the alien had arrived had already departed on January 24, 1953. The respondent was not taken into custody under a warrant of arrest until January 26, 1953, 2 days after his vessel had sailed. Accordingly, on that date of the issuance and service of the warrant of arrest, the respondent was remaining in the United States for a longer time than permitted under the terms of his conditional permit to land. The institution of deportation proceedings under a warrant pursuant to section 242(a) of the Immigration and Nationality Act and 8 C.F.R., part 242, was therefore the proper procedure to effect the departure of the alien. It follows that there was no jurisdictional defect in the proceedings under the warrant of arrest and the case will be remanded for final disposition upon the merits.
Order: It is ordered that the order of the special inquiry officer terminating the proceedings be reversed and that the case be remanded for a decision upon the merits.