F-1484
Decided by Board December 26, 1947 Memorandum by Central Office February 26, 1948 Decided by Board May 14, 1948 Decided by Attorney General May 19, 1948
Fine — Bringing in alien immigrant not in possession of an unexpired immigration visa — Section 16, Immigration Act of 1924 — "Reasonable diligence."
(1) What is "reasonable diligence" (within the meaning of section 16, Immigration Act of 1924) is a factual matter determined upon the particular facts and circumstances of each individual case; what may be "reasonable diligence" in one case may not be so in another.
BEFORE THE BOARD
(December 26, 1947)
Discussion: This is an appeal from the order of the Acting Commissioner against the Peninsular Occidental S.S. Co., Jacksonville, Fla., imposing fine of $1,000, pursuant to section 16, Immigration Act of 1924, for bringing to the United States the alien immigrant F---- P----, who was not in possession of an unexpired immigration visa.
The facts established that the vessel involved, the S.S. Florida, arrived at the port of Miami, Fla. from Havana, Cuba, on January 31, 1947, having on board said alien immigrant. The alien was admitted to the United States for permanent residence many years ago, that is, July 5, 1914. She was born in Poland, August 28, 1897. She remained here until January 27, 1947, when, accompanied by her husband, she purchased a round-trip ticket in Miami for Havana and return. She remained in Havana 3 days and returned, as shown, January 31, 1947, when she was excluded by a Board of Special Inquiry at Miami, Fla., as an immigrant not in possession of an immigration visa or passport.
The alien was paroled into the United States and thereafter, upon waiver by the Department of State of documentary requirements, she was admitted as a returning resident under section 13 (b), Immigration Act of 1924.
Mr. A---- G----, vice president of Canel, Inc., Miami, Fla., the authorized agent for the Peninsular Occidental Steamship Co., who booked the alien for her trip to Havana, Cuba, executed the following affidavit:
In connection with the booking of F---- P---- on January 25, 1947, for a tour to Havana, Cuba, by the Peninsular Occidental Steamship Lines, this is to state that I, A---- G----, vice president of Canel, Inc., who are authorized agents for the Peninsular Occidental Steamship Co., feel justified in having booked F---- P---- as an American citizen for the voyage to Cuba on January 27, 1947, on the basis of the facts hereinafter set forth:
On January 25, 1947, F---- P----, in a group of five which included her husband, F---- P---- and her son, F---- P----, Jr., appeared at the office of Canel, Inc. requesting transportation to Cuba. In accordance with established procedure, this entire group was interrogated as to whether they were United States citizens; and their reply was in the affirmative. They were furnished with P. O. Form 219 which is used for United States citizens only and were assisted by the undersigned in completing such forms upon information furnished by the individuals themselves. In this particular case, F---- P----, who was not fully conversant in the English language, was assisted by F---- P----, her husband, as well as the undersigned. Our files on this booking have been searched and nowhere is it indicated that information on P. O. Form 219 furnished by F---- P---- and her husband and to the effect that she was naturalized on April 7, 1923, in Suffolk County, Long Island, N.Y., is incorrect or that she or her husband ever revealed that she was not so naturalized.
The Form 219 referred to is one belonging to the Peninsular Occidental Steamship Co., for use of its agents, for the purpose of recording information of United States citizens required by United States authorities at the ports of Miami, Key West, and Port Tampa. The alien indicated thereon her name, age, date, and place of birth (April 28, 1898, Ripyan, Poland), her address here (Huntington, Long Island, N.Y.) and the statement that she was naturalized April 7, 1923, Suffolk County, Huntington, Long Island, N.Y. It was signed in the alien's name by her husband.
In the hearing before the Board of Special Inquiry she gave the date of her birth as August 28, 1897.
During the hearing before the Board of Special Inquiry, alien's husband presented his certificate of citizenship showing his naturalization April 7, 1923, in the Supreme Court of Suffolk County, Huntington, N.Y. The certificate contains the name of his wife, the alien, and the names of their four children. Also, during said hearing the alien presented her alien registration card. Her testimony establishes that when she, accompanied by her husband and son, applied to the agent for transportation, the agent in response to his question was shown the naturalization certificate by the husband.
In his brief, and during oral argument, counsel argued that fine should not lie because (1) the alien was ultimately readmitted and (2) the carrier, through its agent, exercised reasonable diligence in determining the bona fides of alien's claim to being a citizen of the United States. He asserted that the alien and her husband deliberately withheld the true facts and perpetrated a fraud on the carrier's agent.
The facts do not appear in dispute. The Service found that the carrier's agent interrogated both the alien and her husband as to their citizenship, and both asserted claim thereto; that the agent then requested execution of Form 219, referred to previously. The Service pointed to the fact that the form contained the notation — "Passport and naturalization certificates should be produced." The Service, therefore, concluded that the carrier was not justified in accepting the alien's application for transportation as a citizen of the United States through reliance upon her false statements, and those of her husband, that she had been naturalized as indicated; that Form 219 specifically cautioned the carrier's agent that passport and naturalization certificates should be produced. The Service concluded:
It is, therefore, concluded that the respondent did not exercise reasonable diligence in determining whether the subject alien was an immigrant and thus required to be in possession of an immigration visa.
Section 16 (a) (b) and (c), Immigration Act of 1924, pertinent hereto, provide:
( a) It shall be unlawful for any person * * * or the agent of any vessel to bring to the United States by water from any place outside thereof (1) any immigrant who does not have an unexpired immigration visa.
( b) If it appears to the satisfaction of the Attorney General that any immigrant has been so brought, such person * * * or the * * * agent * * * of any such vessel, shall pay to the Collector of Customs, of the customs district in which the port of arrival is located, the sum of $1,000 for each immigrant so brought, and in addition a sum equal to that paid by such immigrant for his transportation from the initial point of departure indicated in his ticket, to the port of arrival * * *.
( c) Such sums shall not be remitted or refunded, unless it appears to the satisfaction of the Attorney General that such person, and the owner, master, agent, charaterer, and consignee of the vessel, prior to the departure of the vessel from the last port outside the United States, did not know, and could not have ascertained by the exercise of reasonable diligence, (1) that the individual transported was an immigrant, if the fine was imposed for bringing an immigrant without an unexpired immigration visa, * * *.
The first contention by counsel, that alien's ultimate admission nullifies any basis for a fine, was flatly rejected by the Supreme Court in Hamburg-American Line v. United States, 291 U.S. 420 (March 5, 1934). There the court said that a fine imposed under section 16 of the 1924 Immigration Act is not affected because the alien is ultimately admitted under section 13 (b) of said act, since section 13 (f) of that act provides that "Nothing in this section shall authorize the remission or refunding of a fine, liability to which has accrued under section 16."
The burden of showing the exercise of reasonable diligence is on the carrier ( Cunard Steamship Co. v. Elting, 97 F. (2d) 373 (C.C.A. 2d, 1938)). The carrier cannot merely rely on a document the alien may have. It must be certain that the document refers to the holder and, if necessary, must undertake due inquiry to satisfy itself as to the alien's admissibility and right to the document, whether it be a visa, passport or even a certificate showing birth in the United States. ( Navigazione Generale Italiana v. Elting, 89 F. (2d) 31 (C.C.A. 2d, 1937); International Mercantile Marine Co. v. Elting, 67 F. (2d) 886 (C.C.A. 2d, 1933); Navigazione Generale Italiana v. Elting, 76 F. (2d) 885 (C.C.A. 2d, 1935); New York Porto Rico S.S. Co. v. United States, 66 F. (2d) 523 (C.C.A. 2d, 1933)). Where there is a failure in this respect, the carrier acts at its own peril under the statute ( Hamburg-American Line v. Elting, 73 F. (2d) 272 (C.C.A. 2d, 1934)).
What is reasonable diligence is a factual matter to be determined upon the particular facts and circumstances of each individual case, for what may be reasonable diligence in one case may not be so in another ( New York Porto Rico S.S. Co. v. United States, supra).
We believe on the facts in this case that reasonable diligence was exercised. If the carrier had accepted the alien for passage outside of the United States, due diligence would require the production of the claimed naturalization certificate. We believe, however, that selling transportation in the United States for a round-trip excursion to Cuba for a few days, under the circumstances in this case, where claim to citizenship was fortified by her husband and son traveling with her, and where she had lived here for over 30 years, and could easily have reentered the United States as a returning legal resident, does not evidence lack of due diligence. Nothing has been brought out which should have aroused the suspicion of the agent.
Order: It is ordered that the action of the Commissioner be reversed and that fine be not imposed. The sum involved is $1,000.
Discussion: This is an administrative-fine proceeding under section 16 of the Immigration Act of 1924 against the Peninsular Occidental Steamship Co., owners and operators of the S.S. Florida. It is the contention of the Immigration and Naturalization Service that the company should be fined $1,000 because it brought from Havana, Cuba, to Miami, Fla., on the S.S. Florida, one F---- P---- without immigration documents. The Commissioner on July 23, 1947, imposed the fine. The Board on December 26, 1947 (one member dissenting), reversed the Commissioner. The case is now before this Board on the Commissioner's motion that the Board reconsider its decision and sustain the order imposing the fine. If the Board does not agree, it is asked that the case be certified to the Attorney General for his review. Counsel for the line has been heard in oral argument in opposition to the Commissioner's motion.
The facts are simple and not in dispute. On January 25, 1947, F---- P----, one of a group of five which included her husband and her son, appeared at the offices of Canel Inc., of Miami, Fla., authorized agents for the Peninsular Occidental Steamship Co., and sought transportation from Miami, Fla., to Havana, Cuba, and return to Miami, on the S.S. Florida of the Peninsular Occidental line.
Such transportation was sold. The party sailed from Miami on the evening of January 27, 1947, and returned on the morning of January 31, 1947.
The difficulty in the case is that transportation was sold for F---- P---- on her representation that she was a citizen of the United States by virtue of naturalization on April 7, 1923, at Huntington, Long Island, N.Y., when in fact she was an alien. Obviously, she lacked documents required of aliens.
While Mrs. P---- had nothing of a documentary nature (as it is clear she could not have had) to support her claim to naturalization in the United States, her husband, by aiding her in filling out the travel agency form where United States citizenship through naturalization was alleged, clearly lent his weight to this false claim. The husband was naturalized a citizen of the United States in 1923. He had his naturalization certificate with him. He is the owner of substantial property and not the type where there would be a disposition to question the veracity of his statement. Her other traveling companions, it is claimed, also supported her allegation of citizenship. Mrs. P---- lived in the United States continuously since her legal entry in 1914.
Section 16 of the Immigration Act of 1924 provides a penalty of $1,000 against a transportation agency for bringing to the United States an immigrant without an immigration visa. That the line brought an immigrant without an immigration visa (or a document in lieu thereof) is conceded. The statute, however, contains the following provision:
Such sums shall not be remitted or refunded, unless it appears to the satisfaction of the Attorney General that such person, and the owner, master, agent, charterer, and consignee of the vessel, prior to the departure of the vessel from the last port outside the United States, did not know, and could not have ascertained by the exercise of reasonable diligence, (1) that the individual transported was an immigrant, if the fine was imposed for bringing an immigrant without an unexpired immigration visa, * * *.
The issue is narrowed to whether the transportation agency used due diligence in accepting Mrs. P---- for transportation as a citizen. As we understand the Acting Commissioner's motion to us, due dilgence, he asserts, was not exercised because the line did not insist upon the presentation of the claimed naturalization certificate. In his motion he says, "In the ordinary case it (citizenship) should be easily established through the presentation of birth certificate, baptismal certificate, or certificate of naturalization."
We reject this theory as unreal and unsound. Reasonable diligence is not a static quality. It varies from case to case. If a transportation agency were bringing to the United States one who had been residing abroad and claimed citizenship through naturalization, normally due diligence requires that the agency demand the production of the naturalization certificate. But to say the same rules must apply in all cases seems arbitrary.
In the case before us, if the presentation of the naturalization certificate is not to be a prerequisite in every instance before the line satisfies the due diligence requirement, we think the inquiry into Mrs. P----'s claimed citizenship was competent. Both Mr. and Mrs. P---- had lived in the United States for many years (over 30). They purchased transportation in the United States for a 3½-day Cuban excursion. There was not the slightest reason for the agency to question the veracity of either Mr. or Mrs. P----. Mr. P---- fortified his claim to citizenship by producing his naturalization certificate, which gave added assurance to the representation he made to the line's agent. The three other members of the party were citizens. Obviously, there was not involved an attempt by an inadmissible alien to gain entry to the United States.
If the naturalization certificate must be presented to the transportation agency before the requirement of due diligence is satisfied, the Government will be placed in a very arbitrary position. It will then be requiring a higher degree of diligence by transportation agencies than it requires of its own immigrant inspectors. Documentation on the part of citizens returning after a visit in Cuba is not required. Passengers claiming United States citizenship through naturalization, as well as birth, are admitted without presentation of a naturalization certificate or any other documentary evidence of citizenship if the examining immigrant inspector believes the story told him is true. The factual situation in regard to vacationists returning from Cuba makes this necessary. We cannot in fairness exact a higher degree of diligence on the part of a transportation line than the Government itself employs.
In his brief and argument for the line, counsel points out factors peculiar to agencies engaged in transporting passengers between Florida and Cuba. He gives cogent reasons why the line cannot, for practical reasons, insist upon the presentation of a naturalization certificate in the case of all passengers who claim citizenship through naturalization while the Immigration and Naturalization Service does not make this a requirement as to proof of citizenship when it examines the same passengers upon returning from a trip to Cuba.
On the entire record of this case we are satisfied that the line did exercise due diligence. So that there may be no misunderstanding, let it be clearly understood it is our position that each case must be decided by all the facts in the case and not by a broad, inflexible rule. What may be reasonable diligence in one case may not be so in another.
Order: It is ordered that the motion of the Commissioner that the Board reverse its decision holding that a fine has not been incurred be denied.
It is further ordered that pursuant to 8 C.F.R. 90.12 (c) the case be certified to the Attorney General for review of the Board's decision.
The decision and order of the Board of Immigration Appeals dated May 14, 1948, are hereby approved.
This is an appeal from an order dated July 23, 1947, signed by the Acting Commissioner of Immigration and Naturalization imposing a fine in the amount of $1,000 against the Peninsular Occidental Steamship Co., agents of the S.S. Florida, for bringing to the United States the afore-mentioned alien who upon arrival was found by the Board of Special Inquiry to be an immigrant not in possession of an unexpired consular immigration visa. The applicable statute is as follows:
SEC. 16. ( a) It shall be unlawful for any person, including any transportation company, or the owner, master, agent, charterer, or consignee of any vessel, to bring to the United States by water from any place outside thereof (other than foreign contiguous territory) (1) any immigrant who does not have an unexpired immigration visa, * * *.
( b) If it appears to the satisfaction of the Attorney General that any immigrant has been so brought, such person or transportation company, or the master, agent, owner, charterer, or consignee of any such vessel, shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each immigrant so brought, and in addition a sum equal to that paid by such immigrant for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, such latter sum to be delivered by the collector of customs to the immigrant on whose account assessed * * *.
( c) Such sums shall not be remitted or refunded, unless it appears to the satisfaction of the Attorney General that such person and the owner, master, agent, charterer, and consignee of the vessel, prior to the departure of the vessel from the last port outside the United States, did not know, and could not have ascertained by the exercise of reasonable diligence, (1) that the individual transported was an immigrant, if the fine was imposed for bringing an immigrant without an unexpired immigration visa * * *.
The only question here presented is whether or not the fine having been imposed, the sum of $1,000 shall be remitted or refunded. It is my opinion that a violation having been established, the fine should not be remitted and in this regard I agree with the Commissioner of Immigration and Naturalization and disagree with the determination of the majority of the Board.
The facts in the case do not appear to be in issue. Briefly, the alien here involved was born in Poland on August 28, 1897. She was admitted to the United States for permanent residence on or about July 5, 1914. She remained in this country until January 27, 1947, when accompanied by her husband, she purchased round-trip transportation in Miami, proceeded to Havana, Cuba, and returned to the United States. She sojourned in Havana for only 3 days and was brought from Havana to Miami, Fla., where she applied for readmission on January 31, 1947, whereupon she was refused admission by a Board of Special Inquiry at the port of arrival as an immigrant not in possession of an unexpired immigration visa or passport.
The record discloses that she was paroled into the United States and thereafter, upon waiver of the documentary requirements by the Department of State, she was admitted as one previously lawfully admitted to the United States returning after a temporary absence abroad. See 8 U.S.C., section 204 (b), and 8 U.S.C., section 213 (a) and (b).
It would appear that the transportation for the alien involved was booked by Mr. A---- G----, vice president of Canel, Inc., Miami, Fla., the authorized agent for the Peninsular and Occidental Steamship Co., who in an affidavit asserted that F---- P---- applied for passage on January 25, 1947, as a tourist and that later on the return voyage she was brought to the United States from Havana undocumented. At the time of application for transportation, the prospective passenger was one of a group of five, which included her husband and son, and upon interrogation it is alleged that this passenger, among the others, represented herself to be a citizen of the United States and was assisted in the completion of a form by the agent of the line. The husband of Mrs. P---- was naturalized on April 7, 1923, as a citizen of the United States in Suffolk County, Huntington, Long Island, N.Y., and such naturalization being subsequent to the passage of the so-called Cable Act of September 22, 1922, it did not confer citizenship upon the wife. Careful and reasonable interrogation would have elicited all of the facts and the true nationality status of this prospective passenger.
In the Matter of New York and Puerto Rico Steamship Co. v. United States, decided by the Circuit Court of Appeals in New York July 25, 1933, 66 F. 2d, 522, a steamship carrier, which carrier accepted as passengers aliens falsely claiming to be citizens and transported them to Puerto Rico on tickets which had been issued to others was the subject of a proceeding similar to that here being considered.
The court pointed out:
It is argued that whenever passengers claim to be citizens a steamship company need know nothing to ascertain the actual facts in support of the claim but may bring them here to enable them to present their claim to the proper authorities for decision. It is said that any other construction of the law would give a steamship company the power to deprive a citizen in foreign parts of the means, and so of the right, to come home. The law involved here does not touch the right of a citizen to return to this country. It covers only the bringing here of aliens. What may be called the personal right of one who offers himself as a passenger for transportation to come to the borders of this country may not entitle a steamship company to bring him here without penalty. That depends upon whether he is an alien the statute forbids the company to bring; and whether a fine imposed should be remitted depends upon whether the company exercised such diligence to ascertain what in fact it was doing that the Secretary of Labor is in duty bound to relieve a hardship unjustified by the facts in a particular case. The theory that because the statute does not forbid a person to present himself for admission entitles a steamship company to bring him here for that purpose was exploded in Elting v. North German Lloyd, 287 U.S. 324, 53 S. Ct. 164, 77 L. Ed. 337 and, Lloyd Sabaudo v. Elting, supra, which controlled our decisions in Lamport Holt v. Elting, 64 F. (2d) 93, and Cosulich Societa, etc., v. Elting, 64 F. (2d) 95. There is, to be sure, language indicating the contrary in Compagnie Francaise de Navigation a Vapeur v. Elting (C.C.A.) 19 F. (2d) 773, but that decision is overruled in Cosulich Societa v. Elting (C.C.A.) 66 F. (2d), 534 handed down herewith.
Citizenship in the United States is an ascertainable fact. Obviously, prospective passengers making unsupported claims to citizenship in the United States to carriers should place the carrier upon notice that reasonable diligence requires such carrier or their agents to obtain proof of citizenship in the United States either in the form of a birth certificate, baptismal certificate, or secondary evidence if claim is made of nativity in the United States or certificate of naturalization if claimed by the person to have been so naturalized.
The acceptance by the agent of a mere unsupported claim as here advanced by the presentation of the husband of a certificate of naturalization showing his naturalization after the Cable Act in my opinion does not come within the purview of reasonable diligence as required by the statute.
For the reasons hereinabove set forth, it is my opinion that fine has been incurred and the amount of $1,000 should not be remitted or refunded.
DECIDED BY CENTRAL OFFICE
(February 26, 1948)
Discussion: This is a fine proceeding instituted under section 16 of the Immigration Act of 1924 against the Peninsular Occidental Steamship Co., agents of the S.S. Florida for bringing to the United States the alien F---- P----, an immigrant who was not in possession of a valid immigration visa.
The S.S. Florida arrived at the port of Miami, Fla. from Havana, Cuba, on January 31, 1947, having on board the said alien passenger. Upon arrival she applied for admission as a United States citizen and was excluded by a Board of Special Inquiry at Miami as an immigrant not in possession of a valid immigration visa and a passport. The alien was paroled into the United States and thereafter upon waiver by the State Department of the documentary requirements, she was admitted as a returning resident under section 13 (b) of the Immigration Act of 1924.
This alien was born in Poland on August 28, 1897, and admitted to the United States for permanent residence on or about July 5, 1914. She remained in this country until January 27, 1947 when, accompanied by her husband and son, she purchased round-trip transportation in Miami, proceeded to Havana, Cuba, where she sojourned for 3 days and was brought from Havana to Miami, Fla., where she applied for admission on January 31, 1947, and was excluded by a Board of Special Inquiry as stated.
The Acting Commissioner, after considering the protest of the respondent, on July 23, 1947, imposed a fine of $1,000 under section 16 of the Immigration Act of 1924. On appeal from the Acting Commissioner's order, the Board of Immigration Appeals granted oral hearing by respondent's attorney and on December 26, 1947, ordered that the action of the Acting Commissioner be reversed and that fine be not imposed.
Question Presented: The facts in the case are not in dispute. The question presented is whether the respondent carrier exercised reasonable diligence to ascertain whether the subject alien was an immigrant.
Argument: Section 16 (a), (b) and (c), Immigration Act of 1924, applicable hereto provide:
( a) It shall be unlawful for any person * * * or the agent of any vessel to bring to the United States by water from any place outside thereof (1) any immigrant who does not have an unexpired immigration visa.
( b) If it appears to the satisfaction of the Attorney General that any immigrant has been so brought, such person * * * or the * * * agent * * * of any such vessel, shall pay to the Collector of Customs, of the customs district in which the port of arrival is located, the sum of $1,000 for each immigrant so brought, and in addition a sum equal to that paid by such immigrant for his transportation from the initial point of departure indicated in his ticket, to the port of arrival * * *.
( c) Such sums shall not be remitted or refunded, unless it appears to the satisfaction of the Attorney General that such person, and the owner, master, agent, charterer, and consignee of the vessel, prior to the departure of the vessel from the last port outside the United States, did not know, and could not have ascertained by the exercise of reasonable diligence, (1) that the individual transported was an immigrant, if the fine was imposed for bringing an immigrant without an unexpired immigration visa, * * *.
The transportation for the alien involved was booked by Mr. A---- G----, vice president of Canel, Inc., Miami, Fla., the authorized agents for the Peninsular Occidental Steamship Co. He made a sworn statement relative to such booking:
In connection with the booking of F---- P---- on January 25, 1947, for a tour to Havana, Cuba, by the Peninsular Occidental Steamship Lines. this is to state that I, A---- G----, vice president of Canel, Inc., who are authorized agents for the Peninsular Occidental. Steamship Co., feel justified in having booked F---- P---- as an American citizen for the voyage to Cuba on January 27, 1947, on the basis of the facts hereinafter set forth:
On January 25, 1947, F---- P----, in a group of five which included her husband, F---- P---- and her son, F---- P----, Jr., appeared at the office of Canel, Inc., requesting transportation to Cuba. In accordance with established procedure, this entire group was interrogated as to whether they were United States citizens; and their reply was in the affirmative. They were furnished with P. O. Form 219 which is used for United States citizens only and were assisted by the undersigned in completing such forms upon information furnished by the individuals themselves. In this particular case, F---- P----, who was not fully conversant in the English language, was assisted by F---- P----, her husband, as well as the undersigned. Our files on this booking have been searched and nowhere is it indicated that information on P. O. Form 219 furnished by F---- P---- and her husband and to the effect that she was naturalized on April 7, 1923, in Suffolk County, Long Island, N.Y., is incorrect or that she or her husband ever revealed that she was not so naturalized.
The alien's husband presented his certificate of citizenship showing his naturalization in the Supreme Court, Suffolk County, Huntington, N.Y. This certificate contains the name of his wife, the alien, and the names of their four children. In the alien's testimony during the Board of Special Inquiry hearing, upon her return from Cuba, she presented her alien registration card and testified that when she and her husband and son applied at the office of Canel Tours in Miami for transportation they asked if her husband was a citizen and that her husband showed his naturalization certificate.
In protest to the imposition of fine the respondent claimed that information of vital importance to the company's representative was withheld by the alien which prevented him from determining the true status of the alien's citizenship. Considerable stress has been made by counsel of the Acting Commissioner's reference in the order imposing fine to the respondent's Form 219. The Form 219 is a Peninsular Occidental Steamship Co. form, for use of its agents, being record of information of United States citizens required by the United States authorities at the ports of Miami, Key West, and Port Tampa.
The alien involved, being assisted by her husband, filled out this form showing her name, age, date and place of birth, her address, and indicated therein her purported naturalization April 7, 1923, Suffolk County, Huntington, Long Island, N.Y. The husband signed the alien's name to the form.
The photostatic copy of Form 219 was brought into this proceeding by the respondent in connection with protest to the imposition of fine, for the purpose of showing that the alien had represented herself to be a citizen of the United States, thus misleading the company's representative; that she had filled out the form, which was for use by United States citizens only, being so conspicuously indicated in large black type at the top of the form, without making any effort to reveal that she was not a citizen of the United States; that consequently, reasonable diligence had been exercised. The Acting Commissioner in his order imposing fine made reference to the copy of the Form 219 of the company merely to stress the point that at the time the alien's transportation was booked the agent had before him a reminder of the necessity of exercising diligence in determining whether the applicant was a citizen. There is no basis for the attorney's statement at the oral hearing before the Board that the fine was imposed because of the agent's failure to comply literally with the suggestions contained in Form 219, requiring presentation of naturalization certificate. The respondent's responsibility and liability to penalty under the statute were not increased or lessened by the use of the form.
The cases cited by the Board are pertinent to a setting up of a proper background of authority in the light of which decision must be made. The Board's comment with reference thereto will be quoted in full:
The first contention by counsel, that alien's ultimate admission nullifies any basis for a fine, was flatly rejected by the Supreme Court in Hamburg-American Line v. United States, 291 U.S. 420 (March 5, 1934). There the court said that a fine imposed under section 16 of the 1924 Immigration Act is not affected because the alien is ultimately admitted under section 13 (b) of said act, since section 13 (f) of that act provides that "Nothing in this section shall authorize the remission or refunding of a fine, liability to which has accrued under section 16."
The burden of showing the exercise of reasonable diligence is on the carrier ( Cunard Steamship Co. v. Elting, 97 F. (2d) 373 (C.C.A. 2d, 1938)). The carrier cannot merely rely on a document the alien may have. It must be certain that the document refers to the holder and, if necessary, must undertake due inquiry to satisfy itself as to the alien's admissibility and right to the document, whether it be a visa, passport or even a certificate showing birth in the United States. ( Navigazione Generale Italiana v. Elting, 89 F. (2d) 31 (C.C.A. 2d, 1937); International Mercantile Marine Co. v. Elting, 67 F. (2d) 886 (C.C.A. 2d, 1933); Navigazione Generale Italiana v. Etting, 76 F. (2d) 885 (C.C.A. 2d, 1935); New York Porto Rico S.S. Co. v. United States, 66 F. (2d) 523 (C.C.A. 2d, 1933).) Where there is a failure in this respect, the carrier acts at its own peril under the statute ( Hamburg-American Line v. Elting, 73 F. (2d) 272 (C.C.A. 2d, 1934).
What is reasonable diligence is a factual matter to be determined upon the particular facts and circumstances of each individual case, for what may be reasonable diligence in one case may not be so in another ( New York Porto Rico S.S. Co. v. United States, supra).
It is conceded that what constitutes reasonable diligence is established by the facts and circumstances of each individual case. It is not believed that the respondent exercised reasonable diligence in this case. As stated by the dissenting member of the Board, United States citizenship is an ascertainable fact. In the ordinary case it should be easily established through the presentation of birth certificate, baptismal certificate, or certificate of naturalization.
The respondent has attempted to avoid responsibility imposed upon it by the statute by stating the fraud and misrepresentation committed upon respondent by the alien. This does not seem to be an adequate defense in the light of the precedents cited by the Board. The statute makes no distinction between aliens accepted for passage outside of the United States and those booked in the United States for round-trip excursions to Cuba. It is probably true that many citizens and aliens apply for round-trip excursion transportation to Cuba and other adjacent islands in the Caribbean. However, the number applying is not a factor under the existing law and regulations and Executive orders in effect. Such laws and regulations have not dispensed with the requirement for the possession of certain documents in the case of aliens. We are without authority to dispense with the responsibility of carriers who accept aliens for transportation not properly documented. The fact that some aliens seem to be in a hurry does not relieve the transportation company from responsibility if such aliens are accepted for transportation without proof of their citizenship status or documentation as aliens. We submit that to relieve the respondent from responsibility for fine, upon the showing that the alien was accepted for transportation as a United States citizen solely upon her verbal statements and that of the other individuals comprising her party, was not reasonable diligence under the statute.
The record shows that this one was not fully conversant in the English language. Her husband signed her name for her before the agent. The record of protest is not clear whether the alien was asked to present any identifying documents which she might have had or whether she had an alien registration card.
If we conceded that this was an out and out fraud perpetrated upon the transportation company, it was based solely upon a verbal premise. The authorities cited by the Board do not justify a finding that the carrier was relieved from liability. Even if she had some document, "the carrier cannot merely rely on a document the alien may have. It must be certain that the document refers to the holder and, if necessary, must undertake due inquiry to satisfy itself as to the alien's admissibility and right to the document, whether it be a visa, passport or even a certificate showing birth in the United States." (See authority cited.)
There is no materiality in discussing here the harshness of the law or the propriety of the requirement for aliens returning from Cuba to have certain documents. Such requirements are extent and the only discretion in the administrative agency is to determine whether reasonable diligence is exercised by the carrier. To find that reasonable diligence was exercised in this case, based solely on the verbal statements of the respondent and her immediate traveling companions, even including her husband and son, is unsound and a bad precedent. The carrier would be relieved of liability for accepting anyone who made a false and unsupported claim to United States citizenship. It would practically relieve the carrier of any penalty whatsoever.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of December 26, 1947, and that it enter an order affirming the Acting Commissioner's order of July 23, 1947, imposing a fine of $1,000 against the respondent.
It is further moved that, in the event the Board of Immigration Appeals does not grant the foregoing motion, it certify the case to the Attorney General for decision pursuant to the provisions of 8 C.F.R. 90.12 (c).
Recommended.
This is a proceeding under the provisions of section 16 of the Immigration Act approved May 26, 1924, against the Peninsular Occidental Steamship Co., designated as owner or agent of the S.S. Florida, for bringing to the United States the aforementioned alien who upon arrival was found by the Board of Special Inquiry to be an immigrant not in possession of an unexpired consular immigration visa.
The sole issue in this case is whether the steamship line involved could have ascertained by the exercise of reasonable diligence that the passenger transported was an immigrant.
When passage was booked this person made an unsupported claim to citizenship in the United States. At that time this passenger well knew that she was not a citizen of the United States, as shown by her testimony on page 7 of the hearing before the Board of Special Inquiry. The pertinent questions and answers are as follows:
Q. Of what country are you now a citizen?
A. I should be American citizen, but I can't write and I am not a citizen.
Q. Of what country are you now a citizen?
A. When I left Poland I was Polish.
Q. Have you ever become a citizen of any other country?
A. I never was a citizen nowhere.
Q. Did you ever voluntarily apply for citizenship in any country?
A. I tried to get citizenship papers after my husband got citizenship, about 3 years later and they turned me down because I can't write.
As to the passenger's alleged citizenship in the United States, the line relied upon a passenger form, photostatic copy of which appears in the record, and according to affidavit of the line's agent this passenger was "assisted" by him in completing the form. This prospective passenger, according to the affidavit of the agent, "was not fully conversant in the English language" and she was assisted by her husband as well as the agent of the line in the completion of the passenger form.
The entire dissenting opinion of December 26, 1947, is incorporated in this opinion. There are a number of circumstances which should have placed the line on notice —
(1) That the husband had with him his certificate of naturalization but the wife had no evidence of any kind as to citizenship;
(2) This prospective passenger was unfamiliar with the English language.
In view thereof, a more careful interrogation as to the citizenship of this prospective passenger should have been pursued.
Reasonable diligence as defined by statute (sec. 16 of the act of May 26, 1924) would imply more than a cursory interrogation or the mere acceptance of a claim to citizenship in the United States in a passenger form totally unsupported. The immigration officer detected that this passenger was not a citizen of the United States. A fine once imposed may not be remitted or refunded unless error is shown. There is no error established here.
For all of the reasons heretofore advanced and for the reasons hereinabove set forth, it is my opinion that a violation has occurred and that fine in the amount of $1,000 heretofore imposed should not be remitted or refunded.