F-1300-161 and F-0605-48.
Decided by Board April 28, 1954. Approved by Attorney General December 1, 1954.
Fine — Section 273 (a) of Immigration and Nationality Act — No liability thereunder with respect to alien crewmen not in possession of valid visas.
The provisions of section 273 (a) of the Immigration and Nationality Act do not apply to alien crewmen and liability for fine does not lie with respect to alien crewmen who are not in possession of valid visas.
IN RE: SS. Greystoke Castle which arrived at San Francisco, California, on November 24, 1953, 56 alien crewmen involved; M/V Western Queen which arrived at Port Everglade, Florida, on July 27, 1953, alien crewman involved: R---- W---- R----.
BEFORE THE BOARD
(April 28, 1954)
Discussion: The two appeals referred to above have been joined in this decision since the same question of law is involved in both cases. Case F-1300-161 is an appeal from the decision of the District Director at San Francisco, Calif., on January 27, 1954, imposing a fine of $56,000, and case F-0605-48 is an appeal from the decision of the District Director at Miami, Fla., on August 21, 1953, imposing a fine of $1,000.
In case F-1300-161, the British steamship Greystoke Castle sailed from Kobe, Japan, for San Francisco, Calif., with a crew of 73, including the master. The latter had engaged a crew of Chinese at Hong Kong in September 1952 and they have sailed with him since, but the vessel had not called at a United States port prior to its arrival on November 24, 1953, as indicated above. On November 9, 1953, while the vessel was in port at Kobe, Japan, a crew list was prepared in compliance with the Immigration and Nationality Act and this was taken to the American consular officer by the ship's agent. The following day it was returned to the master of the vessel with the American consul's notation reading "Lines 1 thru 14 visaed-remainder not visaed because of insufficient time to secure required clearances." The manifest contains the names of the 73 alien crewmen and a photostatic copy thereof is part of the record. Upon the arrival of the vessel, a notice was served on the master to detain the 59 aliens whose names had not been visaed and the following day an application was made for a waiver of visa on behalf of these crewmen, but this application was denied. On November 27, 1953, the American consul at Kobe, Japan, informed the San Francisco office of the Service that the names of three alien crewmen had been inadvertently omitted from the visa which he had placed on the crew list. Hence, there remain 56 alien crewmen who are not included in the visa of the American consul.
The 56 alien crewmen, referred to above, were ordered detained on board the vessel, and it appears from the affidavit of the vessel's master that the San Francisco agent for the vessel employed guards to prevent any of these seamen from going ashore. He also states "at no time did the American consul advise me not to sail with my complement of Chinese crew members." All of the alien crewmen involved were still on board the vessel when it departed from San Francisco on December 8, 1953. Although the immigration officer recommended the imposition of a fine, he made the following statement, nevertheless, in his summary, "It is conceded that, as pointed out in the second contention of the agents, certain extenuating circumstances surround the violation." This contention had reference to the assertion of the agent for the vessel that the master of the SS. Greystoke Castle acted at all times in complete good faith; that in the latter's experience as a master of over 27 years, his crews had always been allowed shore leave in ports throughout the world; that when the vessel left Kobe, the master did not know that the failure to visa the entire crew was for any reason other than insufficient time, on the part of the American consular officer, to complete the visa procedure; and that he believed that upon arrival in the United States, he could rely on the procedure of applying for a special waiver of the visa on behalf of the crewmen who were not included in the consular visa.
With respect to case F-0605-48, the alien crewman involved was not in possession of an unexpired visa and was not included in the visaed crew list, his name having been added to the formal manifest after the consular officer had placed his visa thereon. It appears from the special inquiry officer's "summary" that the master had previously requested the American consul to issue individual visas for all members of his crew, but the consul stated that he was not prepared to do so at that time. The alien crewman in this case was detained on board the vessel and a waiver of the visa requirement was not applied for nor obtained. The M/V Western Queen was under charter to the Western Electric Company and was engaged in conveying supplies to the nearby British West Indies in the installation of submarine cables for the United States Air Force. The vessel had been so engaged since February 18, 1953, and this alien crewman had signed on the vessel in the Bahamas on March 26, 1953, and served until June 15, 1953, when he signed off at Nassau because of illness in his family. He again signed on as a member of the crew on Saturday, July 25, 1953. The master of the vessel had obtained a visa of the crew list from the American consul at Nassau, Bahamas, on July 24, 1953, and was unable to obtain a visa for this alien crewman on July 25th or 26th (Saturday and Sunday) as the American consulate was closed after 4 p.m. on Friday. The vessel sailed for the United States at 3 p.m. on Sunday, July 26, 1953.
We have carefully considered the points urged by counsel, by brief and at the oral argument, in case F-1300-161, as well as the contentions of the Service representative. The statutory provision involved in this case is section 273 (a) of the Immigration and Nationality Act, the pertinent part of which is as follows:
It shall be unlawful for any person, including any transportation company, or the owner * * * of any vessel * * *, to bring to the United States from any place outside thereof (other than from foreign contiguous territory) any alien who does not have an unexpired visa, if a visa was required under this act or regulations issued thereunder.
Essentially, the contention of the Service is that the phrase "any alien" in the statutory provision quoted above, when coupled with the definition of alien contained in section 101 (a) (3) of that act, comprehends all aliens, including alien crewmen. On cursory examination, it might seem that there is merit in this position. It is true, as the Service representative contended at the oral argument, that another secton (section 212 (a) which relates to aliens ineligible to receive visas and excluded from admission) employs the phrase "the following classes of aliens" without particularly mentioning alien crewmen but crewmen are held to be inadmissible if they are within any of the classes set forth in section 212 (a). Such a conclusion is, of course, necessary because section 252 (a) of the act specifically provides that an alien crewman shall not be permitted to land temporarily unless he is "otherwise admissible," which obviously requires admissibility in accordance with section 212 (a).
The statutory provision, comparable to section 273 (a) of the Immigration and Nationality Act and in force prior to the effective date of that act, was section 16 (a) of the Immigration Act of 1924 ( 43 Stat. 163; repealed 8 U.S.C. 216 (a)). Its language was almost identical with that contained in section 273 (a) except that the provision in the 1924 act was limited to the bringing of "any immigrant," whereas section 273 (a) referes to "any alien." Because of this change in language, it is clear that section 273 (a) is no longer restricted to aliens who are immigrants and that some classes of nonimmigrants are also included. However, for the reasons set forth hereinafter, it is our considered opinion that those nonimmigrants, who are alien crewmen, are not within the purview of section 273 (a).
Preliminary to our discussion of the specific question, it may be well to make certain general observations. Throughout Title II of the Immigration and Nationality Act, relating to "Immigration," there are many references to "aliens," "an alien other than an alien crewman" and "an alien including an alien crewman." Obviously, no difficulty is encountered when the two explicit phrases are used. However, we do not agree with the position taken by the Service which is, in effect, that the word "alien" must be considered as including alien crewmen except where Congress specifically stated that it did not. If that were the case, there could be no logical explanation for the many instances where Congress used the phrase "an alien, including an alien crewman" for the mere use of the word "alien" would have been sufficient. Under these circumstances, we think more is required than a blind reliance on the most encompassing definition which can be attributed to the word "alien." Rather, we believe that where only the word "alien" is used, the purpose and intent of the particular statutory provision must be considered to determine whether alien crewmen are included. In our opinion, this view is supported by the long course of legislative history dealing with immigration which shows a traditional differentiation between the inspection, admission and deportation of alien crewmen as compared with other nonimmigrants and immigrants, and this distinction has been carried over into the Immigration and Nationality Act.
There is frequent use of the word "alien" in sections 212 to 223 and the two other phrases are used on numerous occasions in sections 232 to 237 and sections 241, 271, 272, and 274.
Not only has there been the distinction mentioned above but there is a logical reason for this in view of an important respect in which the cases of seamen differ from those of all other immigrant or nonimmigrant aliens. Aliens, other than alien crewmen, are on board the vessel for the purpose of transport to, and entry into, the United States either for indefinite or temporary periods. The alien crewman is on board the vessel in the course of his employment and not for any actual purpose of entering the United States, and whether he should or should not be permitted to enter this country temporarily as a seaman is unrelated to his presence on board the vessel.
Since alien passengers on board a vessel are coming to the United States solely for the purpose of entering this country either temporarily or permanently, it is logical to penalize the transportation company if it brings an alien passenger to the United States who does not have a required visa and to require the transportation company to refund the passage money which the alien has paid. In such cases, the transportation company has only to refuse to transport the passenger who does not have a visa. On the other hand, the 56 alien crewmen in case F-1300-161 had served on board the vessel since September 1952. In November 1953, the vessel, for the first time, was scheduled to proceed to the United States, but when the crew list containing the names of all the members of the crew was presented to the American consul, he excluded 56 of the alien seamen from his visa of the crew list. We think that it is readily apparent that there is a vast distinction between such a situation and the case where the carrier need only refuse to transport the passenger who does not have a visa since the vessel could not have sailed without the 56 crewmen.
At the oral argument in the case last mentioned, a question was raised as to whether the 56 aliens involved were bona fide members of the crew inasmuch as the American consular officer had excluded them from his visa of the crew list. We do not perceive the slightest substance to such a contention. Section 101 (a) (10) of the Immigration and Nationality Act provides, "The term `crewman' means a person serving in any capacity on board a vessel or aircraft." The 56 aliens involved had been serving as members of the crew of the vessel since September 1952 and, therefore, come squarely within the definition quoted above. The fact that the consul had excluded their names from his visa of the crew list bears only on their admissibility to the United States and precludes the granting of shore leave but it does not detract, in any way, from their status as bona fide members of the crew. The same is true of the alien crewman involved in case F-0605-48 who was a regular member of the crew of that vessel.
We previously had occasion to consider an appeal from the imposition of a fine under section 16 (a) of the act of 1924 (the predecessor of section 273 (a) of the Immigration and Nationality Act) for bringing to the United States an alien who was occupationally a seaman and arrived as a member of the crew but who was also an applicant for admission as an immigrant ( Matter of SS. Fred Herrling, F-4870, 3 IN Dec. 753, decided March 9, 1950). We there held that a fine had not been incurred. Since we found in that case that the alien crewman was actually an immigrant, the change in terminology from "immigrant" in the 1924 act to "alien" in section 273 (a) of the Immigration and Nationality Act does not render inapplicable our prior determination.
Our decision in Matter of SS. Fred Herrling, ( supra), was largely predicated on Taylor v. United States, 207 U.S. 120 (1907). That case involved section 18 of the Immigration Act of March 3, 1903, which provided that "it shall be the duty of the owners * * * of any vessel bringing an alien to the United States to adopt due precautions to prevent the landing of any such alien from such vessel at any time or place other than that designated by the immigration officers * * *." The court, in reversing the judgment of conviction, held that this section did not apply to the case of a seaman deserting while on shore leave and made the following statement:
The phrase which qualifies the whole section is, "bringing an alien to the United States." It is only "such" officers of "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.
The decision in Taylor v. United States, ( supra), is significant also because the earlier immigration acts had used the term "alien immigrant" whereas the act of 1903 had omitted the word "immigrant," and the Government contended that the omission of the word "immigrant" showed the congressional intention of including seamen as well as immigrants. Hence, the same change of phraseology which is now before us, that is, the change from "immigrant" to "alien" was also before the Supreme Court when the Taylor case was decided.
The Supreme Court again considered the matter in Osaka Shosen Kaisha Line v. United States, 300 U.S. 98 (1937), which involved section 10 of the Immigration Act of 1917, as amended by section 27 of the act of May 26, 1924. This provision is entirely similar to section 18 of the act of March 3, 1903, which had been considered in the Taylor case. In the Osaka Shosen Kaisha Line case, the court concluded that there had been a violation of section 10 of the Immigration Act of 1917, as amended, where an alien passenger enroute from Brazil to Japan on a through ticket was allowed, by the negligence of the ship's officers, to land in the United States without permission of the immigration officers. The steamship line had contended that under the decision in Taylor v. United States, ( supra), it was necessary, in order to constitute the act of bringing an alien to the United States, that there should be an intent to leave him in this country. The court stated that the phrase "intent to leave," which it had used in the Taylor case, was entirely correct as applied to a seaman on board a vessel, but that it may not be extended to include an alien through passenger. However, the Court expressly affirmed the view it had stated in the Taylor case, namely, that the transportation of the sailor was merely an incident to employment on the instrument of transport and that the sailor was one of the agencies which brought the ship in rather than an alien brought in by the ship.
The Supreme Court, in the Osaka Shosen Kaisha Line case, also said at page 103: "When we consider the relation of the sailor to the ship — that he is, for all practical purposes, a part of it and not, like a passenger, apart from it — it is quite apparent that the word `alien' as used in section 10 does not, and was not intended to, include an alien sailor." This construction of the word "alien," as used in section 10 of the act of 1917, as amended by the act of 1924, is highly pertinent to the question before us since both section 1 of the act of 1917 and section 28 of the act of 1924 had defined the term "alien," in general, as including any person who was not a citizen of the United States. The Supreme Court, in that case, had also cited with approval the language of Chief Justice Marshall in The Wilson v. United States, 1 Brock. 423, 30 Fed. Cas. 239, 244 (1820): "It is true that a vessel coming into port, is the vehicle which brings in her crew, but we do not in common language say, that the mariners are `imported,' or brought in by a particular vessel; we rather say they bring in the vessel."
It must be assumed that when Congress used the language "* * * bring to the United States * * * any alien * * *" in section 273 (a) of the Immigration and Nationality Act, it was aware of the interpretation which the Supreme Court had placed on almost identical language in section 18 of the Immigration Act of March 3, 1903, and section 10 of the Immigration Act of 1917, as amended. Under these circumstances, the fact that Congress did not specify that the term "alien" in section 273 (a) should include alien crewmen, as it expressly did in section 274 (a), is a rather clear indication that crewmen were not intended by Congress to be included. In addition, section 271 (a) of the Immigration and Nationality Act, which is a substanial reenactment of the legislation which had been considered by the Supreme Court in the two cases cited above, employs the language "bringing an alien to, or providing a means for an alien to come to, the United States * * *." The latter part of the quoted phrase might conceivably be held to include an alien crewman but this is not true of section 273 (a) where only the language "bring to the United States" was used.
In determining whether the word "alien" in section 273 (a) of the Immigration and Nationality Act includes also an alien crewman, it is essential to bear in mind that this statutory provision, being penal in nature, must be strictly construed. We must also give consideration to the well-settled rule of statutory construction, namely, that a case may be within the meaning of a statute and not within its letter, and within its letter and not within its meaning, and that a statute should be construed so as to carry out the intent of the legislature, although such construction may seem contrary to the letter of the statute. In Church of the Holy Trinity v. United States (footnote 3) and Toyota v. United States, 268 U.S. 402 (1925), the Supreme Court had under consideration statutory provisions using the precise phrase we have before us, namely, "any alien," and in both cases that court held that certain aliens were, nevertheless, not included.
Stewart v. Kahn, 78 U.S. 493, 504 (1870).
Wilkinson v. Leland, 27 U.S. 627, 662 (1829); Church of the Holy Trinity v. United States, 143 U.S. 457 (1892); Ozawa v. United States, 260 U.S. 178, 194 (1922).
In interpreting one section of the Immigration and Nationality Act, we must, of course, also give consideration to the act in its entirety. Section 273, under which it is sought to impose the fines, is contained in chapter 8 which is captioned "General Penalty Provisions." The penalty provisions, which are particularly applicable to alien crewmen, are contained in chapter 6, entitled "Special Provisions Relating To Alien Crewmen." Under these circumstances and in view of the use of the word "General" in the title of chapter 8, we believe that the penalty provisions of chapter 8 were not intended to be applicable to alien crewmen except insofar as particular sections contain specific language to that effect.
Secs. 251, 254, 255, 256, and 257 of ch. 6.
In addition to section 273, there are also penal provisions, applicable to transportation companies, contained in sections 271, 272 and 274. With the exception of section 273, the other sections contain specific provisions either excluding alien crewmen or including them. Subsections (a) and (b) of section 272 contain statements excluding alien crewmen; section 274 includes alien crewmen; and section 271 (a) refers to an alien "including an alien crewman whose case is not covered by section 254 (a)."
The effect of the above-mentioned provision in section 271 (a) is to exclude alien crewmen whose cases are covered by section 254 (a). Section 254 (a) prescribes inter alia a penalty of $1,000 for failure to detain an alien crewman on board until he has been inspected and section 271 (a) prescribes a like penalty for failure to prevent the landing of an alien at any time or place other than as designated by immigration officers. Both sections, therefore, are intended to prevent the unauthorized landing of aliens. The provision in section 271 (a), which precludes its application to most alien crewmen, is highly significant as showing that, where Congress had prescribed a specific procedure in section 254 (a) to prevent the unauthorized landing of alien crewmen, the similar provisions of section 271 (a) were to be inapplicable in such cases. Since Congress enacted two separate sections dealing with this one subject matter and in view of the special provisions relating to alien crewmen which are set forth in chapter 6 of the act, we think there is unmistakable evidence that Congress did not intend that alien crewmen should be placed on the same footing as other nonimmigrant aliens but rather that they were to be considered as forming an entirely distinct category. Likewise, we believe that Congress did not intend that a penalty should be imposed upon a transportation company for bringing an alien crewman who was not in possession of an unexpired visa but instead that, in such cases, the duty of the transportation company was to detain the alien crewman on board until the departure of the vessel, subject to the penalty mentioned in section 254 for failure to do so.
There are certain additional factors which convince us that subsection (a) of section 273 was not intended to apply to alien crewmen. Two of these are the fact that the phrase "any alien" in subsection (a) obviously is not intended to be all-inclusive since subsection (d) provides a specific procedure for dealing with another class of aliens, namely, stowaways, and the fact that section 257 makes it an offense to sign an alien on the vessel's articles with the intent of permitting him to enter or land in the United States in violation of law, which negates any contention that the application of section 273 (a) to alien crewmen is necessary to prevent collusion between the master of the vessel and members of the crew who intend to desert as soon as the vessel reaches the United States.
A third factor which has contributed to our conclusion is the provision of subsection (b) of section 273 which is to the effect that the transportation company shall pay the sum of $1,000 for each alien who was brought to the United States in violation of subsection (a) "and, except in the case of any such alien who is admitted, or permitted to land temporarily, in addition, a sum equal to that paid by such alien 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 alien on whose account the assessment is made." By using the words "and in addition," there is a clear indication that Congress contemplated that, in every case within the purview of section 273 (a), the alien who was brought to the United States would be a passenger who had paid his transportation to this country and this is further borne out by the other language in this statutory provision to which we have supplied emphasis. We think it is clear, therefore, that section 273 (a) was not intended to apply to an alien crewman who has not purchased a ticket or paid for his transportation.
In connection with the provision of section 273 (b) which has been quoted above, the Service representative urged at the oral argument that the language therein reading "permitted to land temporarily" is applicable only to alien crewmen and is precisely the language used in section 252 (a) relating to the manner in which alien crewmen are admitted to the United States as nonimmigrants. From our review of other sections of the act, we are satisfied that the phrase "permitted to land temporarily" is not restricted solely to alien crewmen and that Congress has used interchangeably such terms as "landed," "admitted," and "admitted temporarily" in referring to the manner in which nonimmigrants (including alien crewmen) gain entry into the United States. For example, sections 235 (b), 272 (a) and 272 (b), from which alien crewmen are specifically excluded, use the word "land," and section 273 (d) provides that a stowaway shall not be " permitted to land in the United States, except temporarily for medical treatment." On the other hand, section 221 (f) provides "such alien crewman may be admitted, * * *." We believe, therefore, that the phrase "permitted to land temporarily" in section 273 (b) does not have the connotation which the Service seeks to attribute to it, and that it may be applied with equal propriety to other classes of nonimmigrants (visitors, etc.) who are, in fact, "permitted to land temporarily," that is, for the duration of their authorized stay.
We believe that the foregoing amply demonstrates the soundness of our position in this matter. We have deemed it appropriate to consider the matter in its broadest aspect although we would have found it necessary to reach the same conclusion if we had approached the matter from a more technical viewpoint. From the latter standpoint, we must consider that portion of section 273 (a) which makes it unlawful to bring to the United States "any alien who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder." In other words, was an alien crewman required to have a visa under the provisions of the act at the time these cases arose?
In considering the question mentioned above, we observe that a nonimmigrant visa is defined in section 101 (a) (26) as "a visa properly issued to an alien * * *." Even though the name of an alien crewman appears on a visaed crew list, this is not a visa issued to the alien and, hence, is not a nonimmigrant visa as defined by the act. Nor does the act spell out any intention of making a visaed crew list identical with the possession by the alien crewmen of individual visas. Where there was such an intention with respect to reentry permits, it was specifically stated in section 223 (e) that the permit "shall be accepted in lieu of any visa." Section 221 (f) provides, in effect, that until such time as it becomes practicable to issue individual nonimmigrant visas to alien crewmen, such aliens may be admitted if their names appear in the crew list of the vessel on which they arrive and the crew list has been visaed by an American consular officer. Since we have previously indicated that the two documents (visaed crew list and nonimmigrant visa) are not identical, it follows that, at the time these cases arose, the alien crewmen were not required to have unexpired visas by reason of the specific provisions of section 221 (f) and, therefore, a fine cannot be imposed under section 273 (a) in any event. Of course, the question of whether a conditional permit to land temporarily could be granted to these alien crewmen is an entirely different matter because, as to that, it is clear that such permits could not be granted inasmuch as the aliens' names on the crew list had not been visaed.
Closely allied to the matter under discussion above is the question of whether all alien crewmen arriving in United States waters are subject to the documentary requirements of the act or whether these are only applicable where the alien crewmen desire conditional permits to land temporarily under section 252 (a). The 56 alien crewmen in case F-1300-161 were obviously applicants for shore leave, but in case F-0605-48, the record does not disclose whether the seaman involved had even applied for admission to the United States. Section 212 (a) (26) provides for the exclusion of "Any nonimmigrant who is not in possession of * * * (B) at the time of application for admission a valid nonimmigrant visa or border-crossing identification card." Hence, this constitutes an additional reason for holding that an alien crewman, who does not seek shore leave, is not required to be in possession of a nonimmigrant visa, nor is there a requirement that his name on the crew list be included in the American consul's visa. This view is supported by the provision of 22 C.F.R. 41.60 (c) which refers to an application for a visa as a nonimmigrant on the part of an alien crewman "seeking to proceed to and land in, the United States temporarily," and by the provisions of 22 C.F.R. 41.65 (b) which also indicate that the visaed crew list or nonimmigrant visa is material only insofar as the alien crewmen are applicants for admission as nonimmigrants.
We have also considered the fact that section 221 (f) specifically authorizes the consular officer to exclude any alien crewman from the crew list submitted to him, and that the American consul did take that action in case F-1300-161. If we held that section 273 (a) applied to alien crewmen, the master of the vessel would be liable for the arrival in the United States of a crewman on his ship if, after the alien was signed on the vessel, the consular officer excluded him from the crew list visa, and yet the only other alternative which the master would have would be to violate the terms of the contract of employment. To interpret section 273 (a) as relating to alien crewmen might well be construed as an attempt by this Government to dictate to the owner of a vessel, sailing under a foreign flag, what seamen he could employ on his ship under penalty of a fine of $1,000 for having on board an alien crewman who had not been "screened" by the United States authorities even though the seaman did not set foot on our soil and had made no application for shore leave. The injustice of such a position is even more apparent where, as in case F-1300-161, the alien crewmen were not excluded from the American consul's visa because of any supposed threat to the security of the United States but only for the reason "insufficient time to secure required clearances." On the other hand, our interpretation that section 273 (a) does not apply to alien crewmen is an equitable solution since there is no interference with the right of the owner of the vessel to employ any bona fide seaman, and the interests of the United States are protected because, if the alien crewman does not have an individual nonimmigrant visa and is not on a visaed crew list, he will not be permitted to land but must be detained on board under a penalty of $1,000 (sec. 254) or a fine of $5,000 under section 257 if there was an intent to assist the alien to enter the United States illegally.
For the reasons set forth above, we hold that section 273 (a) does not apply to alien crewmen. Accordingly, the appeals will be sustained.
Order: It is ordered that the appeals be sustained and that the proceedings be terminated.
(April 29, 1954)
It is ordered that pursuant to the request of the Assistant Commissioner, Immigration and Naturalization Service, and under the authority of Title 8, Code of Federal Regulations, section 6.1 (h) (1) (iii), the decision of the Board is certified to the Attorney General for review.
(December 1, 1954)
The decision and order of the Board of Immigration Appeals are approved.
These matters are before the Board of Immigration Appeals on appeal. Both involve aliens. The first case had its inception at San Francisco, Calif., and the second at Miami, Fla., and although determination was made by separate and distinctly different special inquiry officers in these two different parts of the country, these officers arrived at diametrically opposite conclusions.
Both matters were joined for consideration by the majority of the members of the Board of Immigration Appeals, obviously for reasons which will become apparent from a study of the facts and the applicable law and regulations hereinafter set forth.
The first matter, covered by file F-1300-161, involves an appeal from the decision of the District Director of Immigration and Naturalization, San Francisco, Calif., bearing date January 27, 1954, wherein fine in the amount of fifty-six thousand dollars ($56,000), $1,000 for each alien involved, was imposed upon Williams, Dimond Co., agents for the SS. Greystoke Castle, which vessel arrived at the port and on the date hereinabove set forth from Kobe, Japan, for violation of section 273 of the Immigration and Nationality Act.
The specific violation complained of is bringing to the United States 56 aliens who did not have unexpired visas.
When this vessel arrived it had a complement of 73 aliens including the master. It would appear that the aliens here involved were all of the Chinese race. They were engaged for employment at Hong Kong, China, and it is averred that they have followed this employment for several years. The vessel, however, had not called at a port of the United States before the present arrival.
While the ship was in the port of Kobe, Japan, a crew list was prepared as required by the Immigration and Nationality Act (Public Law 414); and although the said list was presented to the United States consul for visa purposes by the ship's agent, the list was returned with the notation made by the United States consul to the effect that the names of aliens appearing on lines one through fourteen had received the requisite "nonimmigrant visa" but the remainder of the names did not contain a visa, presumably for the reason as noted thereon, that there was insufficient time to obtain the necessary clearances. In other words, the United States consul had not satisfied himself as to the bona fides of the status of these aliens. A photostatic copy of the list is attached to and made part of the record.
It is important to note at this point that the burden placed upon the United States consul is to satisfy himself of the nonimmigrant status of such aliens and as to their subsequent admissibility to the United States in such category.
Of considerable interest but not of record here, and not used in this determination is the practice obtaining in matters as herein discussed. Investigation by the Immigration Naturalization Service and the Consular Service indicate that aliens pay certain sums of money to hiring agents in Hong Kong to be signed on articles of vessels as crew members, and that crew agents are fully aware of the intentions of the aliens to desert in the United States. It has been reported that each such alien is required to deposit some 750 Hong Kong dollars as a guarantee of return to China, plus a guarantee of from 1,000 to 5,000 American dollars to cover any fines imposed against the shipping company in the event of desertion.
The term "alien" is defined in section 101 (a) (3) of the Immigration and Nationality Act as any person not a citizen or national of the United States.
The term "immigrant" as defined in section 101 (a) (15) of the Immigration and Nationality Act means every alien except an alien who is a nonimmigrant.
22 C.F.R., section 41.17, effective December 24, 1952, published December 19, 1952, relating to refusal of nonimmigrant documentation, provides in part as follows:
(a) Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer that he is properly classifiable within a nonimmigrant category specifically referred to in section 41.5.
Following the arrival of the SS. Greystoke Castle as hereinabove indicated a notice was served upon the master requiring him to detain on board and to deport from the United States 59 of the aliens for whom no visa had been issued by the United States consul. On the day following arrival an application was made to the Department of State for a waiver of visa requirements under the provisions of section 273 of the Immigration and Nationality Act on behalf of the said 59 aliens but this application was specifically denied by the said Department of State, apparently thereby confirming the action of the United States Consul in Kobe, Japan.
Under date of November 27, 1953, the United States Consul, Kobe, Japan, informed the Immigration and Naturalization Service at San Francisco, Calif., that the names of three of the aliens had been inadvertently omitted from the visa on the aforesaid lists, hence there remained a total of 56 aliens for whom no visa whatsoever was issued, either by the United States Consul in Kobe, Japan, or by specific waiver of the United States Department of State; yet, notwithstanding the declination or refusal by the United States consul of a visa or waiver thereof by the United States Department of State for these 56 aliens, the master of the vessel nevertheless brought these aliens to the United States in circumstances hereinafter set forth. Certainly the action of the United States consul was sufficient notice to the master that these aliens were not categorized by the United States consul as nonimmigrant aliens and their admissibility to the United States as such had not been determined.
The second matter is before the Board of Immigration Appeals (file F-0605-48) by reason of an appeal from the decision of the District Director of Immigration and Naturalization, Miami, Fla., bearing date August 21, 1953, disaffirming an opinion of the special inquiry officer bearing date August 3, 1953, wherein the proceedings were terminated.
Four members of the Board of Immigration Appeals are of the opinion that these proceedings should be terminated and with that conclusion I must respectfully disagree for all of the reasons hereinafter set forth.
The District Director of Immigration and Naturalization, Miami, Fla., ordered that the fine covered by file F-0605-48 in the amount of $1,000 be imposed against the Port Everglades Terminal Co., agents of the M/V Western Queen, which vessel arrived at the port and on the date hereinabove set forth from the foreign port or place as indicated for violation of section 273 of the Immigration and Nationality Act ( 8 U.S.C. 1323).
The specific violation complained of in this instance is bringing to the United States from Nassau, Bahamas, a port or place outside this country, the alien R---- W---- R----, who was not in possession of an individual unexpired visa and was not included on the visa appearing on the crew list issued by the United States consul. This alien, and the 56 others, subjects hereof, were not exempt from visa requirements under and pursuant to the provisions of section 212 (a) (26) of the Immigration and Nationality Act ( 8 U.S.C. 1182), which provides in part as follows:
(a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission to the United States: * * *
(26) Any nonimmigrant who is not in possession of (A) a passport valid for a minimum period of 6 months from the date of the expiration of the initial period of his admission or contemplated initial period of stay authorizing him to return to the country from which he came or to proceed to and enter some other country during such period; and (B) at the time of application for admission a valid nonimmigrant visa * * *.
66 Stat. 184; 8 U.S.C. 1182 (a) (26).
The vessel as aforesaid (M/V Western Queen) was under charter to the Western Electric Co. carrying supplies to the nearby Bahamas, B.W.I., used in connection with the installation of submarine cables which the Western Electric Co. was installing under contract to the United States. The vessel had been under such charter since February 18, 1953. The subject hereof was signed on the articles of the vessel at Nassau in the Bahamas on March 26, 1953. He continued in employment until June 15, 1953, when, because of alleged illness in his family, he signed off the vessel's articles and was re-signed on the ship's articles on July 26, 1953. He is shown as a British subject. It is conceded that this alien was signed on the articles of the vessel after the master had procured a visa from the United States consul on the crew list for other members of the crew but R----'s name was neither among those for whom a visa was obtained on July 24, 1953, nor was he possessed of an individual visa as required.
The sole issue in these cases is whether or not a violation of section 273 (a) of the Immigration and Nationality Act ( 8 U.S.C. 1323) is established for bringing these aliens to the United States who were neither in possession of individual visas nor were their names included in the visa on the crew list.
Four members of the Board of Immigration Appeals rely to a great extent upon the decision of the court in the case of Taylor v. United States, 207 U.S. 120 (1907). In that case the court was interpreting the provisions of section 18 of the Immigration Act of March 3, 1903. Considerable immigration legislation was passed by Congress subsequent thereto, and our particular attention is focused upon the provisions of section 273 of the Immigration and Nationality Act (Public Law 414), ( supra), wherein the Congress sought to prevent recurrences of the situation which obtained under this old act, and upon which the Congress sought specifically to legislate in the said Immigration and Nationality Act by using the words "any alien."
Section 273 of the Immigration and Nationality Act (Public Law 414) ( 8 U.S.C. 1323) provides in part as follows:
(a) It shall be unlawful for any person, including any transportation company, or the owner, master, commanding officer, agent, charterer, or consignee of any vessel * * * to bring to the United States from any place outside thereof * * * any alien who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder;
(b) If it appears to the satisfaction of the Attorney General that any alien has been so brought, such person, or transportation company, or the master, commanding officer, 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 alien so brought and, except in the case of any such alien who is admitted, or permitted to land temporarily, in addition, a sum equal to that paid by such alien 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, commanding officer, 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, that the individual transported was an alien and that a visa was required.
66 Stat. 227; 8 U.S.C. 1323.
Section 221 (f) of the Immigration and Nationality Act reads as follows:
66 Stat. 192; 8 U.S.C. 1201(f).
(f) Each nonimmigrant shall present or surrender to the immigration officer at the port of entry such documents as may be by regulation required. In the case of an alien crewman not in possession of any individual documents other than a passport and until such time as it becomes practicable to issue individual documents, such alien crewman may be admitted, subject to the provisions of this title, if his name appears in the crew list of the vessel or aircraft on which he arrives and the crew list is visaed by a consular officer, but the consular officer shall have the right to exclude any alien crewman from the crew list visa.
Here it must be emphasized that all of these aliens not having been classified by the United States consul as nonimmigrants they could not be considered bona fide members of the crew. Hence, they were immigrants as hereinafter shown, and the masters of the vessels were fully cognizant that these aliens were not in possession of the required nonimmigrant visas, and, consequently, the said aliens should not have been permitted to come to the United States.
22 C.F.R., section 41.17, provides for refusal of nonimmigrant documentation:
(a) Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer that he is properly classifiable within a nonimmigrant category specifically referred to in section 41.5.
(b) Except as provided in paragraphs (c), (d), and (e) of this section, the provisions of section 212 (a) of the Act specifying the grounds for refusal of visas to aliens as implemented by section 42.42 of this subchapter, shall apply to all nonimmigrants.
Because of the law and the regulations herein set forth, it is my opinion that the carriers were fully aware of the applicability of the nonimmigrant visa provisions of the statute and the regulations. Yet, notwithstanding, they brought the 57 aliens here involved to the United States without being properly documented by the United States consul; consequently, all said 57 aliens were brought to the United States in contravention of law, thereby rendering the carriers subject to civil penalty.
8 C.F.R., section 212.1, provides:
Except as otherwise provided in the Immigration and Nationality Act and this chapter, an alien ( including an alien crewman) who applies for admission to the United States as a nonimmigrant shall present a valid unexpired nonimmigrant visa issued to him under the nonimmigrant classification in which he seeks admission, and an unexpired passport valid for at least the period set forth in section 212 (a) (26) of the Immigration and Nationality Act: * * *.
The majority of the Board of Immigration Appeals contend that section 16 of the Immigration Act approved May 26, 1924 (8 U.S.C. 216) is the comparable statutory provision in previous legislation. Of course, this provision of the previous law was repealed specifically by the Immigration and Nationality Act (Public Law 414). The majority assert that the language is almost identical. They reason that certain nonimmigrant aliens are not within the provisions of section 273 of the Immigration and Nationality Act ( supra). A mere reading of the statutes and a comparison reveal the differences. The reasons for the changes are all too evident; Congress intended to strengthen the control of "all aliens." They intended no weakening for security reasons. The majority would attempt to carve certain nonimmigrants from "all aliens." Congress intended to include all and to exclude none. This view, I believe, is supported adequately by the report of the Committee on the Judiciary (S. Rept. No. 1515, 81st Cong., 2d sess., pp. 545-555).
Section 16 of the Immigration Act approved May 26, 1924 (8 U.S.C. 216) provides in part as follows:
(a) It shall be unlawful for any person * * * or the owner * * * 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. * * *
(c) [The penalty of $1,000 mentioned in subsection (b)] shall not be remitted or refunded unless it appears to the satisfaction of the Attorney General that such person, and the owner * * * of the vessel, prior to 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) chat the individual transported was an immigrant * * *.
Nothing could be more obvious than that Congress fully intended to change the provisions of section 16 of the Immigration Act approved May 26, 1924, ( supra). That section referred only to immigrants and there was nothing in the way of penalty relating to other than the bringing of an immigrant without proper documentation.
22 C.F.R., section 41.60, provides:
(a) An alien applying for a nonimmigrant visa under the provisions of section 101 (a) (15) (D) of the Act shall be required to establish to the satisfaction of the consular officer that he seeks to proceed to, and land in, the United States temporarily and solely in pursuit of his calling as a nonimmigrant crewman serving in good faith as such in some capacity required for normal operation and service on board a vessel * * * proceeding to the United States. Aliens employed on board such vessel * * * in a capacity not ordinarily associated with, or required for, normal operation and service on board the vessel, * * * or persons employed or listed as regular members of the crew in excess of the number normally required shall be considered as passengers and shall be documented as any other passenger not employed aboard the vessel * * *.
(c) Each nonimmigrant crewman seeking to proceed to and land in the United States temporarily in pursuit of his calling shall, except as provided in section 41.64, apply for an individual visa as a nonimmigrant under the provisions of section 101 (a) (15) (D) of the Act and in accordance with the provisions of section 41.9 (sec. 101, 66 Stat. 167; 8 U.S.C. 1101).
Thus from the foregoing it will be seen that each nonimmigrant crewman must have an individual visa or temporarily a visa may be issued by the United States consul on the crew list. Each such nonimmigrant must meet the burden of proof as hereinafter set forth.
22 C.F.R., section 41.61 — Burden of proof and evidence of crewman status — provides:
(a) An alien applying for a visa as a nonimmigrant under the provisions of section 101 (a) (15) (D) of the Act shall not only have the burden of establishing that he is entitled to classification as a crewman within the meaning of that section of the Act, but also that he is not ineligible to receive a visa as a nonimmigrant under the provisions of section 212 of the Act, or any other provision of law, and section 41.17.
(b) An alien applying for a visa as a nonimmigrant under the provisions of section 101 (a) (15) (D) of the Act shall establish specifically that:
(1) he intends to proceed to, and land only temporarily in, the United States solely in pursuit of his calling as a crewman;
(2) he intends in good faith, and will be able, to depart from the United States with the vessel * * * on which he will arrive, or on some other vessel * * *; and that
(3) he is in possession of a national passport or other document, crewman's identity certificate, or other papers which establish his origin, identity, and nationality, if any, and shall further establish unconditionally that he will be permitted to enter some foreign country after a possible temporary landing in the United States (sec. 291, 66 Stat. 234; 8 U.S.C. 1361).
Significantly, the United States consul in Kobe, Japan, was not satisfied as to the 56 aliens here involved, and as to the single seaman from Nassau, Bahamas, B.W.I., there was laxity in obtaining the requisite documentation.
Above all, unless specifically indicated, a separate class of alien nonimmigrants cannot be carved from the words "all aliens" as contained in section 273 (a) of the Immigration and Nationality Act ( supra).
Certainly Congress meant what it said in using the term "all aliens" and it is all too evident that the Congress knew of the decision of this Board in the Matter of the SS. Fred Herrling, 3 IN Dec. 753, March 9, 1950. In that case we said that an alien crewman signed on here for a round-trip voyage was not comprehended within the provisions of section 16 of the Immigration Act approved May 26, 1924 (8 U.S.C. 216). That case is distinguishable from the case at bar. The Congress intended by its very action in enacting section 273 of the Immigration and Nationality Act to make the statute applicable to "all aliens." Congress did not authorize any alien to come to this country unless a visa had been issued to that alien.
So, too, was the Congress apprised of the decision in the case of Taylor v. United States, 207 U.S. 120 (1907), wherein the court said, in substance, that a seaman brings a vessel to the United States. The knowledge of the Congress is quite apparent because the earlier immigration acts had used the term "alien immigrant" and the present act uses the term "all aliens."
Moreover, the Congress was also familiar with the decision in the case of Osaka Shosen Kaisha Line v. United States, 300 U.S. 98 (1937). This case, however, pertained to a criminal prosecution under and pursuant to the provisions of section 10 of the Immigration Act of February 5, 1917, and the court was particularly concerned by the question of "intent to leave," and the Congress in the Immigration and Nationality Act intended to block the previous so-called loopholes.
Section 31 of the act of February 5, 1917 ( 43 Stat. 165; 8 U.S.C. 167 (c)), which section was repealed by the Immigration and Nationality Act, provided in part as follows:
That any person, including the owner, agent, consignee, or master of any vessel arriving in the United States from any foreign port or place, who shall knowingly sign on the ship's articles, or bring to the United States as one of the crew of such vessel, any alien, with intent to permit such alien to land in the United States in violation of the laws and treaties of the United States regulating the immigration of aliens, or who shall falsely and knowingly represent to the Immigration authorities at the port of arrival that any such alien is a bona fide member of the crew, shall be liable to a penalty not exceeding $5,000, for which sum the vessel shall be liable * * *.
Section 31 of the act of February 5, 1917 has been replaced by section 257 of the Immigration and Nationality Act ( 8 U.S.C. 1287). That section provides as follows:
Any person, including the owner, agent, consignee, master or commanding officer of any vessel * * * arriving in the United States from any place outside thereof, who shall knowingly sign on the vessel's articles, or bring to the United States as one of the crew of such vessel * * * any alien, with intent to permit or assist such alien to enter or land in the United States in violation of law, or who shall falsely and knowingly represent to a consular officer at the time of application for visa, or to the immigration officer at the port of arrival in the United States, that such alien is a bona fide member of the crew employed in any capacity regularly required for normal operation and service aboard such vessel * * * shall be liable to a penalty not exceeding $5,000 for such violation, for which sum such vessel * * * shall be liable and may be seized and proceeded against by way of libel in any district court of the United States having jurisdiction of the offense.
Congress was fully cognizant of the situation as applicable to aliens seeking to be brought to the United States as herein set forth and they not only provided for a civil liability and strengthened the provisions of the statute but also provided for a criminal liability as well, and both sections of the statute may be violated.
Section 32 of the act of 1917 ( 43 Stat. 165; 8 U.S.C. 167) was repealed by the provisions of section 20 (d) of the act of 1924. The foregoing provisions of the statute were legislative enactments preceding the passage of the Immigration and Nationality Act ( supra) and were repealed by that act. Section 16 of the act approved May 26, 1924 (8 U.S.C. 216) was also legislation preceding the enactment of section 273 of the Immigration and Nationality Act ( supra). That provision of the 1924 act made it 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 * * * (1) any immigrant who does not have an unexpired immigration visa, * * *."
The Congress sought to incorporate in the provisions of section 273 all of the provisions of the previous legislation, and at the same time attempted to strengthen the statutory provisions so as to make it unlawful for any of the persons mentioned in the statute to bring to the United States from any place outside thereof "any alien who does not have an unexpired visa." [Emphasis supplied.]
Certainly the carrier here brought the aliens involved, since they were not properly classified as bona fide nonimmigrant aliens, not having been classified as such by the consuls of the United States. Yet, notwithstanding, and with full knowledge of the deficiency, the aliens were nevertheless brought to this country in defiance of law.
It will be observed that section 273 (a) ( supra) provides for a penalty to be imposed upon any of the persons mentioned therein for bringing to the United States "* * * any alien who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder." It might be well to contrast the provisions of section 271 and section 274 which are also under the heading of general penalties and it will be noted therein that these sections include an alien crewman while section 272 relates to the bringing of aliens "other than alien crewmen."
The mere fact that the word "crewmen" is not contained within the provisions of section 273 (a) is no basis for a conclusion that crewmen were not intended by Congress to be within the particular section under discussion. Where it saw fit, Congress inserted the terminology "including alien crewmen" merely for emphasis and appropriately employed the terminology "other than alien crewmen." Certainly Congress did not intend to except alien crewmen from the operation of section 273 (a) for it specifically refers to the bringing of "any" alien. Since the term "any" is employed, it encompasses all aliens and it is authoritative insofar as it means just what it says.
Of course, the foregoing is a distinct change in the law as compared with the predecessor section 16 of the Immigration Act approved May 26, 1924, wherein it was made unlawful to bring to the United States an immigrant not in possession of an immigration visa. Obviously, Congress intended to strengthen the law by imposing a penalty for bringing other aliens to this country without proper documents. In this connection reference might be made to the "Omnibus" bill which preceded the Immigration and Nationality Act (S. 3455, 81st Cong., 2d sess.), in section 273 of which the Congress made it unlawful to bring an immigrant without a visa or a quota immigrant having an improper visa or a nonimmigrant who does not have an unexpired visa, if required, so that section 273, representing as it does section 16 of the 1924 act, included a new section applicable to any alien who does not have an unexpired nonimmigrant visa if required.
8 U.S.C. 216; 43 Stat. 163.
The following Omnibus bill, S. 716, made a change and referred therein to the bringing of "any alien" just as is contained in the statute as finally enacted. It is, therefore, quite obvious that Congress intended to change the law as it appeared in section 16 of the Immigration Act approved May 26, 1924, so that it would encompass the bringing of any alien and not only the bringing of immigrants. The language contained in subsection (b) of section 273 supports the view that the section was intended to apply to the bringing of crewmen illegally and the carrier is exempted from liability in the case of any alien who was admitted or permitted to land temporarily. This is the language which appears in section 252 (a) of Public Law 414 and this section relates to the manner in which alien crewmen are to be admitted to the United States as nonimmigrants. All of this supports the conclusion that subsection (a) specifically applies to crewmen as well as others who are required to be possessed of an appropriate visa.
82d Cong., 1st sess., Jan. 29, 1951.
66 Stat. 220, 8 U.S.C. 1282 (a).
The foregoing may lead to one additional question, and that is whether or not a visa is required in the case of an alien as here involved and as provided in section 273 (a). Accordingly, section 221 (f) of Public Law 414 ( supra) and 8 C.F.R. 212.1 have been quoted, and a reading of the said section and of the regulation makes it quite clear that any alien who is not in possession of an individual nonimmigrant visa, as in the instant cases, is inadmissible to the United States unless his name appears on a visaed crew list. In the cases under consideration the evidence of record establishes beyond a doubt that the aliens involved were neither in possession of individual visas nor were their names contained in the visaed crew lists, a prerequisite to the admissibility of such nonimmigrants.
To eliminate any question in this regard the regulations promulgated by the Attorney General pursuant to the authority contained in Public Law 414 require all nonimmigrants, including alien crewmen, to be in possession of a valid nonimmigrant visa or a border-crossing card.
In the opinion of the special inquiry officer and in the opinion of four members of the Board in the case of file F-0605-48, reference is made to the language in the case of Taylor v. United States, 207 U.S. 120, as contained in the Matter of SS. Fred Herrling, F-4870, 3 IN Dec. 753, in which case the word "bring" is mentioned concerning a member of the crew of a ship who is engaged in bringing the vessel to a port of the United States. In the Taylor case, which involved the conviction of a carrier charging willful permission of an alien to land at a time and place not designated, section 18 of the act of March 3, 1903, was being interpreted, and there is found no similar provision in section 271 of the Immigration and Nationality Act ( 8 U.S.C. 1321), because in Public Law 414 Congress declared specifically that the penalty provisions for failure to prevent the unauthorized landing of aliens shall apply to all aliens, including alien crewmen. It is my opinion that the language of the court in the Taylor case is inapplicable to the case at bar, wherein the provisions of section 273 (a) of the Immigration and Nationality Act are involved, and wherein the Congress sought to change the law to prevent just such another determination.
The majority opinion of the Board also seeks to establish the belief that the Taylor case, ( supra), is applicable to the cases under consideration because one of the reasons urged for affirming the conviction of that time was that the earlier immigration acts had used the term "alien immigrant," whereas the act of 1903 had omitted the word "immigrant" and that the terminology in section 273 is similar in import. That reasoning cannot here apply because section 273 refers especially to any alien, whether immigrant or nonimmigrant. Moreover, the majority are of the opinion that the decision of the Supreme Court in the case of Osaka Shosen Kaisha Line v. United States, 300 U.S. 98, decided in 1937, is also applicable to the present cases. Obviously, this reasoning is fallacious, because the court there was interpreting the provisions of section 10 of the Immigration Act of February 5, 1917, as amended (8 U.S.C. 146), which imposed a duty upon "every person, including owners, masters, officers, and agents of vessels of transportation lines * * * which may enter into a contract as provided in section 23, bringing an alien to, or providing a means for an alien to come to, the United States, to prevent the landing of such alien in the United States at any time or place other than as designated by immigration officers, * * *."
When the language contained in section 273 (a) of the Immigration and Nationality Act, ( supra), was adopted the Congress was fully cognizant of the foregoing decisions of the Supreme Court, and obviously it was the intent of the legislators to fortify the terminology by including in the term "any alien," alien crewmen. Appropriate statutory construction requires that the intent of the legislators be carried out, and on the basis of all of the evidence of record, as well as in the light of all of the applicable law and regulations, it is my conclusion that section 273 of the Immigration and Nationality Act, ( supra), applies to any alien, including an alien crewman, and that such crewmen were required to have either individual nonimmigrant visas or that their names appear on visaed crew lists. Since they were not in possession of such individual visas, and their names did not appear on such visaed crew lists, a violation of section 273 of the Immigration and Nationality Act, ( supra), is established. There are no exceptions in the regulations of the Attorney General or the Department of State insofar as the facts here presented are concerned. Consequently, after careful consideration of all of the law and of all of the regulations and of all of the evidence, as well as the representations of the agents, it is my conclusion that the decisions of the District Directors of Immigration and Naturalization, San Francisco, Calif., and Miami, Fla., should be affirmed, and that the opinion of the four members of the Board of Immigration Appeals should be reversed.