F-0500-437
Decided by the Board December 10, 1953
Fine — Section 273 (d) of the Immigration and Nationality Act — Liability — Mitigation.
(1) An alien stowaway who effects his departure from a vessel after notice has been given that he should be detained on board and deported has not been detained as required and liability for fine has been incurred under section 273 (d) of the Immigration and Nationality Act, even though every precaution was taken to prevent the alien's escape and the prompt action of the master resulted in the alien's capture.
(2) Section 273 (d) of the Immigration and Nationality Act makes no provision for mitigation. ( Editor's note: While Int. Dec. No. 498 held that section 273 makes no provision for mitigation, the penalty in that case was imposed under section 273 (b) of the Act.)
STATUTE INVOLVED:
Section 273 (d) of the Immigration and Nationality Act ( 8 U.S.C. sec. 1323 (d))
BEFORE THE BOARD
Discussion: This matter is before us by reason of an appeal from the decision of the District Director of Immigration and Naturalization, Baltimore, Md., bearing date October 19, 1953, wherein fine in the amount of $1,000 was imposed against Ramsey, Scarlett Co., Inc., Keyser Building, Baltimore, Md., agents of the vessel as aforesaid, which vessel arrived at the port and on the date hereinabove set forth, for violation of section 273 (d) of the Immigration and Nationality Act ( 8 U.S.C. sec. 1323 (d)).
Section 273 (d) of the Immigration and Nationality Act ( supra) provides as follows:
(d) The owner, charterer, agent, consignee, commanding officer or master of any vessel * * * arriving at the United States from any place outside thereof who fails to detain on board or at such other place as may be designated by an immigration officer any alien stowaway until such stowaway has been inspected by an immigration officer or who fails to detain such stowaway on board or at any other such designated place after inspection if ordered to do so by an immigration officer or who fails to deport such stowaway on the vessel * * * on which he arrived or on another vessel * * * at the expense of the vessel * * * on which he arrived when required to do so by an immigration officer, 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 stowaway in respect of whom such failure occurs.
The specific violation complained of is failure to detain and deport the alien stowaway M---- G----.
In a report bearing date September 10, 1953, submitted by an immigrant inspector of the Baltimore office of the Immigration and Naturalization Service, it is stated that Form I-259 was served upon Ramsey, Scarlett, Co., ordering the alien as aforesaid detained and deported from the United States. The vessel sailed from Baltimore for New York City on August 18, 1953, with the alien stowaway on board and according to the report of the officer of the Service as aforesaid he was informed by the Chief of the Entry and Departure Section, New York, N.Y., that the stowaway had effected his escape from the vessel while at that port.
In an affidavit of October 6, 1953, signed by a representative of the Booth American Shipping Co. in behalf of Lamport Holt Line, Ltd., it is set forth that "on August 19, 1953, the stowaway was placed on board at Baltimore and when the vessel arrived at New York prior to docking at pier 33, Atlantic Basin, Brooklyn, during the early hours of the morning of August 21 the 2d Officer K---- D---- notified the master that M---- G---- was not in his room which was locked and that the porthole was found to be open. Thorough search of the vessel was made without results which indicated that the man had swum ashore and the master immediately sent a radio message to the Coast Guard requesting them to notify the Immigration of the man's escape. We are pleased to report that very shortly afterward M---- G---- was apprehended and placed on Ellis Island."
In an affidavit of October 23, 1953, the facts as hereinabove set forth are reiterated and the Lamport Holt Line, Ltd., contend that the facts show that every possible precaution was taken to detain the man on board and that furthermore prompt action by the master resulted in his capture It is requested that the Board take this situation into consideration.
This Board has very carefully reviewed all of the evidence of record, and while we appreciate the effort in the apprehension of the stowaway and are inclined to view the situation sympathetically, yet the statute makes no provision for mitigation. The alien stowaway was ordered detained on board and deported and notice was given Ramsey, Scarlett, Co., and notwithstanding the requisites of the notice the alien effected his departure from the vessel. He was therefore not detained as required and the appeal from the decision of the district director must be dismissed.
Order: It is ordered that the appeal from the decision of the district director of Immigration and Naturalization, Baltimore, Md., bearing date October 19, 1953, be and the same is hereby dismissed.