F-4870
Decided by Board, October 7, 1949 Memorandum by Central Office, November 3, 1949 Decided by Board, March 9, 1950
Fine — Vessel bringing alien (immigrant) without proper visa — Section 16, Immigration Act of 1924 — Where alien a seaman.
Where the prospective immigrant is and has been a bona fide seaman for many years, who signed on here as a seaman for trip to foreign ports and return, and the facts show the alien was brought here as an incident to employment on the instrument of transportation (vessel) (rather than for the sake of transportation, even though working as a seaman), a fine under section 16 of the Immigration Act of 1924 will not be imposed on the carrier.
BEFORE THE BOARD
(October 7, 1949)
Discussion: We have this case on appeal from an order by the Assistant Commissioner, dated July 8, 1949, imposing penalty against the Sword Line Inc., agents of the vessel Fred Herrling in the amount of $1,000. The proceeding arises under section 16 of the Immigration Act of 1924 (8 U.S.C. 216), charging that the vessel brought to the United States on May 16, 1948, "an immigrant not in possession of an unexpired immigration visa."
In protest the carrier states that prior to the alleged "bringing" the vessel sailed from Norfolk, Va., for England, having on board as a member of its crew the alien in question, viz, S---- F----. While in England the alien obtained the issuance to him of an immigration visa, dated September 5, 1947, and valid to January 5, 1948. The vessel was then diverted to other ports of call and returned to New York on May 16, 1948, when the alien presented the visa and applied for admission for permanent residence, long after the visa had expired.
Section 16 of the 1924 Act declares that it shall be unlawful for any person "to bring to the United States by water from any place outside thereof * * * any immigrant who does not have an unexpired immigration visa" and prescribes a penalty in the amount of $1,000 for a violation thereof, unless it appears to the satisfaction of the Attorney General that the carrier "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 that the individual transported was an immigrant." As the captain and chief steward helped the alien to obtain the visa the exception stated in the statute is clearly inapplicable.
The case is similar to that of Pan American Petroleum Transport Co. v. United States, 28 F. (2d) 386, D.C., E.D. La. 1928, which involved a proceeding under the same provision of law in the following circumstances. One S----, an alien landed in the United States as a seaman and deserted. Within a few days he shipped as a marine engineer on the dredge Canton for service in the Danish West Indies under a contract which bound his employer to return him to the port of departure. When the work was complete, the vessel on which he had departed was unseaworthy and he was returned on the I.C. White. On arrival the alien stated that it was his purpose to remain in the United States if he could do so. The court said:
* * * it seems to be admitted that he departed promptly upon the Canton on a foreign voyage, and in my opinion his status as a seaman was retained throughout so that, when he arrived upon the I.C. White, the rights of the parties were governed by these same sections (3, 19 and 20); that is, he was a bona fide seaman and entitled to such privileges as were accorded by section 19 of the act * * * and the I.C. White's only duty was to see that neither he nor it violated the provisions of section 20 * * * I do not think, under the conditions mentioned, insofar as the plaintiff or its vessel are concerned, that the case could be treated as that of an immigrant within the meaning of the law.
The similarity of the instant case to the one cited is emphasized by the report of the field officer who states as to F----:
The testimony shows that the subject was a bona fide crew member for many years * * *
Note should also be made of Taylor v. United States, 207 U.S. 120, 1907, which involved the conviction of a carrier under the Immigration Act of March 3, 1903, charging willful permission of an alien to land at a time or place other than designated by the immigration officers. The alien concerned was a member of the crew. Mr. Justice Holmes, speaking for the court said:
The reasoning is not long. The phrase which qualifies the whole section is, "bringing an alien to the United States." It is only "such" vessels that are punished. "Bringing to the United States." taken literally and nicely, means, as a similar phrase in section 8 plainly means, transporting with intent to leave in the United States and for the sake of transport — not transporting with intent to carry back, and merely as incident to employment on the instrument of transport.
On the authority of the cases cited, we conclude that violation of section 16 has not occurred.
Order: It is ordered that the appeal from the order of the Assistant Commissioner be sustained and that the proceeding be terminated.
Discussion: On May 16, 1948, the S.S. Fred Herrling arrived at the port of New York from foreign. One, S---- F----, an alien member of the crew, applied for admission for permanent residence. He presented an immigration visa which had expired approximately 4 months prior to his embarkation at Avonmouth, England. He was held for a Board of Special Inquiry and excluded under the provisions of section 13 (a) (1) of the Immigration Act of 1924, as an immigrant not in possession of an unexpired immigration visa. The Central Office affirmed the excluding order of the Board of Special Inquiry and the Board of Immigration Appeals dismissed his appeal. The captain and chief steward of the vessel assisted the alien in applying for his visa and saw it after it was obtained. They knew he intended to apply for admission for permanent residence. Even a superficial examination of the visa would have disclosed that it had expired prior to the alien's embarkation.
Section 16 of the Immigration Act of 1924 makes it unlawful "for any person, including any transportation company, or owner, master, agent, charter, 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" and provides for a penalty of $1,000 for each immigrant so brought unless it appears to the satisfaction of the Attorney General that the responsible parties "prior to the departure of the vessel from the last port outside of 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 * * *"
Since, both the master and chief steward, assisted the alien in obtaining his visa, the exception stated in the statute was clearly inapplicable, and accordingly on July 8, 1949, this Service imposed a fine of $1,000 on the Sword Line, Inc., agents for the S.S. Fred Herrling.
The responsible party appealed from the order of this Service and on October 7, 1949, the Board of Immigration Appeals sustained the appeal and terminated the proceedings. The Board's action was predicated on the decisions in Pan American Petroleum and Transportation Company v. United States, 28 F. (2d) 386 (D.C.E.D. La. 1928) and Taylor v. United States, 207 U.S. 120 (1907).
The case of the Pan American Petroleum and Transport Company v. United States, also involved a proceeding under section 16 of the Immigration Act of 1924. In that case an alien had landed in the United States as a seaman and deserted. Within a few days he shipped as a marine engineer for service in the West Indies under a contract which bound his employer to return him to the port of departure. Since the vessel upon which he had departed was found unseaworthy he was returned as a passenger on another vessel. Upon his arrival, he informed officers of this Service that it was his purpose to remain in the United States if he could do so. He was thereupon excluded as an immigrant not in possession of an immigration visa. Fine proceedings were then instituted. The court held that a fine would not lie. It found, in effect, that the alien was not an immigrant, but a bona fide seaman and that the vessel's only duty was to see that he complied with the provisions of section 20 of the Immigration Act of 1924. Presumably what the court meant was that the vessel was to detain the alien on board until inspection or to detain him on board after inspection and to deport him if required to do so, but that he should not have been held for a Board of Special Inquiry by this Service.
No appeal was taken from the court's decision, but neither the Department of Labor nor the Department of Justice indicated that they agreed with the court's decision. (See file 55575/930 which is attached for ready reference.) In any event the Board of Immigration Appeals and the courts have not followed the reasoning of the court in that case. For instance in the Matter of M.S. Harry G. Seidel, 56093/156, Apr. 2, 1943, the Board made the following pertinent comment:
This case involved a fine proceeding under section 20 of the Immigration Act of 1924, but it describes the proper procedure to be followed in the case of an alien seaman applying for admission for permanent residence.
While a seaman, arriving as such and applying for admission as a seaman in pursuit of his calling, is not entitled to a hearing before a Board of Special Inquiry and may be ordered detained on board by an examining inspector (United States ex rel. D'Istria v. Day, 20 Fed. (2d) 392), a seaman may apply for admission as an immigrant. If and when a seaman applies for admission as an immigrant, his case is to be considered the same as any other alien applying for admission as an immigrant. The procedure in this respect is outlined in sections 15 to 18 of the 1917 act. Such applicant for admission, is not found clearly and beyond a doubt entitled to enter by the inspector first examining, must be held for examination before a Board of Special Inquiry. A seaman who applies for admission as an immigrant is, therefore, entitled to a hearing before a Board of Special Inquiry if his right to enter as an immigrant is not established to the satisfaction of the primary inspector. He may not be ordered detained on board by a single inspector.
In another case involving the M/S Harry G. Seidel, 56118/178 April 24, 1943, the Board said:
The protest recites the above facts and asks that a fine be not imposed. First, because the alien was a seaman, not an immigrant, upon his last arrival and, second, that upon the facts presented, the line could not have ascertained prior to the vessel's departure from the last port outside the United States by the exercise of reasonable diligence that the alien named was an immigrant. The first argument is untenable. At the time of his last arrival, the alien named applied for admission as an immigrant for permanent residence, not as a seaman for purposes of reshipping. Obviously then, he is an immigrant within the prohibition contained in section 16 of the Immigration Act of 1924.
Recently in the Matter of the Estonian Yawl "Dockan", F-2078, April 12, 1949, the Board dismissed an appeal from the decision of this Service imposing a fine of $8,000 against the master and owners of the vessel for bringing into this country a number of aliens who were employed aboard as seamen but who applied for admission for permanent residence upon the yawl's arrival. In that case the Central Office discussed in some detail the question of liability of the responsible persons for bringing into this country alien seamen who are, in fact, immigrants. See also the Matter of the S.S. Astri, 56118/788 (Jan. 6, 1947); the Matter of the S.S. Evangeline, 56071/161, (Mar. 13, 1943); and the Matter of the S.S. Merchant Prince, 56118/653 (Dec. 9, 1942). In some of these cases cited above no fines were imposed, but only on the basis that the responsible (parties) did not know and could not have ascertained by the exercise of reasonable diligence that the individuals transported were immigrants.
The courts also have imposed fines in this type of case. See Transatlantica Italiana v. Elting, 66 F. (2d) 495 (C.C.A. 2d) (causes of action Nos. 4 and 6).
The case of Taylor v. United States, supra, which was also cited by the Board as a basis for not imposing fine in the instant case applies "to sailors carried to an American port with a bona fide intent to take them out again when the ship goes on," is therefore, not in point, and has never heretofore been held to nullify a proceeding under section 16 of the Immigration Act of 1924, merely because the individuals transported were seamen.
Since the Board's decision in the instant case will establish a precedent which is in disregard of all its previous holdings, and as it will have serious consequences in its effect on the enforcement of the immigration laws, the case should be returned to the Board for further consideration.
Motion is hereby made, That the Board of Immigration Appeals reconsider and withdraw its order of October 7, 1949, and that it enter an order affirming the order of this Service dated July 8, 1949, imposing a fine in the sum of $1,000.
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 review pursuant to the provisions of 8 C.F.R. 90.12 (c).
So ordered.
Discussion: This case is before us on a motion of the Commissioner dated November 3, 1949, requesting that we reconsider our decision of October 7, 1949, and impose a fine. In our decision of October 7, 1949, we sustained an appeal from the order of the Assistant Commissioner imposing a fine, and held that on the facts of record a fine would not lie.
This is an administrative fine proceeding under section 16 of the Immigration Act of 1924 against the Sword Line, Inc., a domestic company, agents of the S.S. Fred Herrling, a vessel owned by the United States Maritime Commission and chartered to the Sword Line. The basis of the fine is that the Fred Herrling brought to the United States one S---- F----, an alien immigrant who did not have an unexpired immigration visa.
The facts are simple. F---- is occupationally a bona fide seaman and has been such for many years. In August 1947 he signed on as a member of the crew of the S.S. Fred Herrling for a round trip from New York and return. This is an important fact. The contract of employment required return of the seaman to New York. F---- remained a member of the crew of the Herrling until the vessel did return to New York on May 16, 1948. During the period elapsing from departure from New York in August 1947, until return May 16, 1948, the vessel engaged in commerce between many foreign ports. F---- continuously was a seaman on the Fred Herrling during all of this time and returned with the vessel to New York.
F---- obtained an immigration visa in London, England, September 5, 1947, during the time the Fred Herrling was there. Clearly, it was his intention to secure regular permanent residence in the United States. However, before the vessel finally returned to the United States the visa expired. The master of the Fred Herrling knew F---- secured an immigration visa and, in fact, gave F---- a letter of recommendation to present to the American consul.
In our prior decision we held on these facts that the Fred Herrling was not bringing F---- to the United States. The Supreme Court in Taylor v. United States, 207 U.S. 120, clearly and beyond any possibility of confusion differentiated between bringing an alien to the United States "for the sake of transporation" as against bringing an alien to the United States "as incident to employment on the instrument of transporation." True, in the Taylor case, the transportation agency intended to take the seaman out on the vessel upon which he arrived in accordance with the term of employment. The court did not have before it a seaman who signed on a vessel in the United States for a round trip voyage. The reasoning of the court, however, is as applicable to the one case as to the other. We by no means wish to imply that in no case where an alien is employed as a seaman a fine under section 16 will not lie. We have approved the imposition of fines in some such instances. The facts in each case must be studied to determine whether the alien was brought to the United States for the sake of transportation even though working as a seaman, or whether he was brought as an incident to employment on the instrument of transportation.
The Commissioner's motion cites several cases where we found the facts in the case constituted a violation of section 16 of the 1924 act.
To determine the issue in the present case, we must look to the facts as they existed at the time F---- was signed on the Fred Herrling at the port of New York in August 1947. The record shows that F---- was a seaman occupationally. He wanted a job. The operators of the Fred Herrling employed him as a seaman on a trip from New York to foreign ports and return to New York. There is not an iota of evidence that then the operators or the master of the Fred Herrling had any reason to believe that F---- wished transportation abroad to secure an immigration visa, and then transporation back to the United States as an immigrant.
But even if the transportation line was aware that F---- would seek an immigration visa during the voyage, having signed on the Fred Herrling as a seaman for a round trip voyage, the master was obliged to return him to the United States and could not discharge him in a foreign port. Section 2195 of title 18 (formerly sec. 486) provides as follows:
Whoever, being master or commander of a vessel of the United States, while abroad, maliciously and without justifiable cause forces any officer or mariner of such vessel on shore, in order to leave him behind in any foreign port or place, or refuses to bring home again all such officers and mariners of such vessel whom he carried out with him, as are in a condition to return and willing to return, when he is ready to proceed on his homeward voyage, shall be fined not more than $500 or imprisoned not more than 6 months, or both.
We cannot expect the master of the Fred Herrling to violate F----'s contract of employment and violate a criminal statute of the United States because the seaman's immigration visa expired before the return of the vessel to this country.
The district director at New York, in his memorandum of March 29, 1949, recommending the imposition of a fine, states in part as follows:
The vessel stopped at many foreign ports, any one of which the United States consul stationed there could have revalidated the visa without any delay or difficulty inasmuch as the subject was eligible for nonquota status, having been born in a South American country.
This observation is beside the point. The penalty is against the ship operators for its alleged unlawful act — not against the seaman F----. The master of the Fred Herrling could not himself have had the visa revalidated, nor could he discharge F---- in a foreign port for failure to do so.
We conclude, as we previously concluded, that the Fred Herrling did not bring F---- to the United States for the sake of transportation, but that he was brought as an incident to employment on the instrument of transportation.
We affirm our prior decision. This does not establish a precedent in disregard of all previous holdings as alleged in the Commissioner's motion, nor does it involve a type of case frequently arising. We see no need to submit the matter to the Attorney General.
Order: It is ordered that the prior decision of the Board be affirmed.