A-7886909
Decided by Board March 6, 1951 Decided by Acting Attorney General August 17, 1951
Nonsignatory line — Ground of exclusion, alien brought to foreign contiguous territory by such line and resided there less than 2 years before seeking admission here for permanent residence — Section 17 of the Immigration Act of 1924 and section 23 of the Immigration Act of 1917 — When these statutory provisions are not applied.
An alien, brought to Canada on a United States Army transport (through the auspices of the International Refugee Organization) which vessel was one operated and under complete control of an agency of the United States, is not held excludable under the provisions of section 17 of the Immigration Act of 1924 and section 23 of the Immigration Act of 1917, as one brought to foreign contiguous territory by a nonsignatory line and who had resided there less than 2 years before seeking admission here for permanent residence.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Nonsignatory line.
Act of 1917 — Nonsignatory line.
BEFORE THE BOARD
(March 6, 1951)
Discussion: This case has been certified to the Board by the Service as involving a question of difficulty, in accordance with section 90.3 (b), Title 8, C.F.R.
The pertinent facts in the case are briefly as follows: J---- H---- was brought to Canada by the United States Army Transport Leroy Eltinge through arrangements of the International Refugee Organization, as a displaced person. He landed at Halifax, Nova Scotia, April 23, 1949, and was admitted to Canada as an immigrant. He was in possession of a certificate of identity issued by the International Refugee Organization for the purpose of immigrating to Canada.
J---- H---- is a native and citizen of Czechoslovakia, age 27, and applied for admission to the United States for permanent residence at Detroit, Mich., on October 31, 1950, in possession of certificate of identity issued by the Department of External Affairs at Ottawa, Canada, valid until August 3, 1951, for travel to the United States, and a first preference Czechoslovakian quota immigration visa issued at Windsor, Ontario, Canada, on October 31, 1950, valid for 4 months. He was excluded on November 1, 1950, by a board of special inquiry and appealed.
Mr. H---- testified that his intention was to remain in Canada permanently. However, on April 29, 1950, he married a citizen of the United States and thereafter took steps to migrate to this country.
The question of difficulty presented in this case is whether the alien's arrival in Canada on a United States Army transport was such as to bring him within the provisions of section 23, Immigration Act of 1917, and section 17, Immigration Act of 1924, requiring the exclusion of persons applying for admission to the United States within two years after arrival in contiguous territory on a nonsignatory line.
Sec. 23, Immigration Act of 1917, insofar as it is applicable here, provides:
"That the Commissioner of Immigration and Naturalization * * * shall prescribe rules for the entry and inspection of aliens coming to the United States from or through Canada and Mexico * * * and shall have power to enter into contracts with transportation lines for the said purpose * * * Provided further, that in prescribing rules and making contracts for the entry and inspection of aliens applying for admission from or through foreign contiguous territory, due care shall be exercised to avoid any discriminatory action in favor of foreign transportation companies transporting to such territory aliens destined to the United States, and all such transportation companies shall be required, as a condition precedent to the inspection or examination under such rules and contracts at the ports of such contiguous territory of aliens brought thereto by them, to submit to and comply with all the requirements of this act which would apply were they bringing such aliens directly to seaports of the United States, and, from and after the taking effect of this act, no alien applying for admission from foreign contiguous territory shall be permitted to enter the United States unless upon proving that he was brought to such territory by a transportation company which had submitted to and complied with all the requirements of this act, or that he entered, or has resided in, such territory more than 2 years prior to the date of his application for admission to the United States."
Sec. 17 of the Immigration Act of 1924, except for minor changes immaterial here, repeats verbatim the language of sec. 23 of the 1917 act.
The memorandum of the Service certifying the case here contains the following pertinent information:
A request for information from the United States Office of the International Refugee Organization concerning the use of United States Army Transport vessels and in particular, the use of the U.S.A.T. General Bundy contains the following pertinent information (letter dated June 1, 1950, signed by W.A. Wood, Jr., Major General, U.S. Army Retired, Chief, United States Office of I.R.O., Central Office File 56239/100): that agreements have been made by the I.R.O. and the Department of the Army whereby certain Army Transport vessels were and are operated on a cost basis by the Army for the I.R.O. from monies supplied by the I.R.O. to the Army to provide for the transportation of displaced persons by sea. The letter contains the following further information:
The letter contains the information that all United States Army Transports have now been placed under the operational control of the Navy Department and are known as U.S. Naval Ships.
The original arrangement under which Army ships operated in I.R.O. service was concluded between this office and the War Department in the early part of 1947 with the support of the then Secretary of State (General Marshall) and the Secretary of War (Judge Patterson). Subsequently, in February 1949, this understanding was supported and reaffirmed by Presidential Directives to the Secretary for the Army and the Commissioner of the United States Maritime Commission wherein the latter was directed to transfer, on a loan basis, to the Army such surplus vessels as might be required by the Army to meet the requirements of I.R.O. for sea transport in United States flag ships.
The master and all regular members of the crew of the General Bundy were employees of the Army and had full responsibility for the technical operation of the ship. Movements of these vessels in I.R.O. service were in accordance with instructions issued by I.R.O. to the Army governing their ports of call in Europe and the ports of destination wherever they might be at various locations in the world, as well as indicating the passengers to be carried. Control of the displaced persons passengers on these vessels was effected by the master, as required, through the medium of an escort officer placed on the vessel by I.R.O. who served as a member of the master's staff aboard the vessel.
The Service expressed the view that an alien brought to foreign contiguous territory on an Army transport under the auspices of the I.R.O. is not subject to exclusion on the above stated sections of law and that its reasons for such view is set forth in detail in the opinion of general counsel of the Service in the Matter of F----, VP-422709, dated May 11, 1950, approved by the Commissioner May 22, 1950. Because the position of the Department of State on the problem is contrary to that of the Service (and the Board of Immigration Appeals) the Service has certified the matter for consideration. ( Matter of P----, Interim Decision #57).
The Board in the Matter of P----, A-6996994, March 7, 1949, concluded as follows:
P----, a native and citizen of Poland, landed at Halifax, Nova Scotia, on June 15, 1948, one of a group of 650 tailors brought to Canada as a displaced person by the I.R.O. He proceeded to Toronto and was examined by a Board of Special Inquiry to determine his admissibility to the United States for permanent residence. The vessel upon which he arrived in Halifax, the S.S. General William Black was a United States Army transport which was under charter to the I.R.O., its mission being to bring displaced persons to the North American continent, arrangements having been approved by the Department of State. P---- originally intended to remain in Canada but married a United States citizen and as she refused to reside in Canada, P---- sought entry to the United States in possession of required documents.
We find that his case falls within the language and phraseology in the Matter of B----, so as to justify determination that provisions of sections 17 and 23 ( supra), do not require a holding of inadmissibility thereunder. The International Refugee Organization, to whom the vessel in question was chartered for the purpose of bringing displaced persons to the North American continent, with the approval of the Department of State, is an international governmental agency. The transportation of appellant to contiguous territory was not by means of a commercial transportation company or by vessel having a commercial character.
The B---- case, which seems to have brought some confusion in the problem generally, was decided by the Board on January 21, 1941. B----, a native of Germany, stateless, and of the Hebrew race, applied for admission to the United States at Montreal, Canada, on October 29, 1940, for permanent residence. He was excluded under section 17, Immigration Act of 1924, and section 23, Immigration Act of 1917. He was in possession of a German quota visa issued to him in Montreal, Canada. He was residing in England attending the University of Cambridge until May 12, 1940, when he was taken into custody by English authorities as an alien enemy and was interned. Along with many others he was transferred to Canada for interment, arriving there on July 13, 1940. He was brought to Canada aboard the S.S. Ettrick of the Peninsula and Oriental Line. It was argued that the immigration statutes mentioned applied only to aliens who upon arrival in Canada were destined to the United States and who traveled to Canada by a commercial transportation line; that as B---- was not destined to the United States upon arrival in Canada and as he did not travel on a commercial transportation line he was not inadmissible under section 17, Immigration Act of 1924, and section 23, Immigration Act of 1917. The Board rejected the first contention and although B---- had not resided in Canada for 2 years it found that the excluding provisions mentioned should not apply to this case since the language of the statute indicated that Congress had in mind and was concerned solely with the voluntary transportation of aliens as a commercial transaction; that B---- was transported on a vessel owned by a commercial transportation company which was chartered by the British Government for the purpose of removing war prisoners and internees from England to Canada, and that B---- had no choice in deciding whether he was to leave England and come to Canada. The Board pointed out that in no manner was the ship which brought B---- to Canada required to comply with the provisions of the statutes in question. The Board sustained B----'s appeal and authorized his admission. However, on February 5, 1941, the then Attorney General reversed the Board with the proviso, however, that if B---- subsequently were restored to his freedom and shall then make regular and proper application for admission to this country it shall be considered without prejudice. The Attorney General indicated that he agreed with the Board that the circumstances of B----'s being brought to Canada on a ship operated by the Government of Great Britain rather than on a ship or a private line was a circumstance not contemplated by Congress and not necessarily excluding B----, but found that there were other facts which could not justify a disregard of the statute in order to permit B----'s admission to the United States. It was pointed out that B---- was an internee and was brought to Canada for safekeeping and since he was still under restraints by Great Britain his admission could not be authorized under the law.
It seems that on June 2, 1942, the Attorney General answered a letter from the Acting Secretary of State dated March 31, 1942, requesting reconsideration of Attorney General Jackson's opinion of October 29, 1940, holding H---- B---- inadmissible to the United States. The reply indicated that there was no basis for disturbing the opinion mentioned but agreed with the legal adviser of the State Department that to hold the statute inapplicable to aliens brought to foreign contiguous territory by vessels operated by foreign governments would tend to defeat these purposes. He also agreed with the legal adviser that B---- was not exempt from the statutes in question by reason of his having been brought to Canada against his will since the statute made no distinction between a voluntary and involuntary bringing.
On November 15, 1949, the Department of State issued Visa Circular No. 128, as follows:
"Subject: Application of section 23 of the Immigration Act of February 5, 1917, as amended, and section 17 of the Immigration Act of 1924, as amended, to Aliens Brought to Canada by the International Refugee Organization.
"1. Purpose. — This circular sets forth the authority for the application of the above sections of the Immigration Acts of 1917 and 1924 to aliens brought to Canada by the IRO.
"2. Background. — The Department has received inquiries in several cases as to whether aliens brought to Canada by the IRO on vessels owned by the United States Army who have resided in that country less than two years are admissible in view of section 23 of the Immigration Act of 1924.
"3. Finding. — It has been determined that aliens arriving in the manner described above are regarded as arriving on nonsignatory vessels and may not be permitted to enter the United States unless they have resided in such territory for more than two years prior to the date of their application for admission to the United States.
"4. Authority. — Section 23 of the Immigration Act of 1917 ( 39 Stat. 874, 892), section 17 of the Immigration Act of 1924 ( 43 Stat. 153, 163), Opinion of Attorney General Biddle in the case of H---- B---- (letter of June 2, 1942).
"5. Distribution. — This circular is being distributed to all Foreign Service offices in Canada.
NOTE. — Paragraph 4 of the circular under "Authority" cities the Attorney General's letter of June 2, 1942."
Thus, while the Service is now in agreement with the Board in the conclusion reached in the P---- case the fact remains that the Department of State, through Visa Circular No. 128, dated November 15, 1949, has ruled that aliens brought to Canada by the I.R.O. on vessels owned by the United States Army who have resided in that country less than 2 years are inadmissible to the United States. (See opinion of general counsel, Immigration and Naturalization Service, dated May 11, 1950.)
In the F---- opinion the general counsel of the Immigration and Naturalization Service found that while it would appear that the I.R.O. has broad enough powers in its constitution to engage in the business of transportation, so that it could be considered a "transportation line" or a "transportation company" within the meaning of the immigration statutes mentioned, it has never in fact operated as a transportation line or company; that on the assumption that the vessel which brought F---- to Canada was a United States Army transport through arrangements with the I.R.O., the conclusion was reached that Mrs. F---- would be admissible to the United States notwithstanding the provisions of the immigration law in question.
The factual situation in the B---- case is different from that which obtained in the P---- case and which obtains in the H---- case now before us. In the B---- case, B---- was brought to Canada on a ship operated by Great Britain and he was brought to Canada as an internee. While the then Attorney General held that B---- would be held inadmissible under the immigration statutes in question so long as he remained in status quo; namely, as an internee, a subsequent observation was made that to hold the statutes (sec. 17, Immigration Act of 1924, and sec. 23, Immigration Act of 1917) inapplicable to aliens brought to foreign contiguous territory by vessels operated by foreign governments would tend to defeat these purposes. This observation was indicated in the letter addressed to the Secretary of State on June 2, 1942. While the observation was not a formal opinion, we see no conflict in the B---- holding by the Attorney General and the holding by the Board in the P---- case. Nor for that matter does the B---- case create any obstacle to a conclusion in the case now before us similar to that reached in the P---- case.
In the case of J---- H----, now before us, it is established that the alien was brought to Canada on a United States Army transport through the auspices of the I.R.O.; that the use of the Army transports by the I.R.O. is pursuant to an understanding whereby such ships have been so allocated and that the Army supplied the vessels and crews which are under the constant supervision of the Army and that the I.R.O. merely supplies the displaced person to be transported and pays for the voyage on a cost basis.
The personal factors in P---- and H---- cases are substantially the same. Each intended to remain in Canada. Each was brought to Canada under similar circumstances. In the H---- case the transportation medium is clearer; namely, that the vessel was owned and operated by the United States Government through the Department of the Army. While the same may have been true in the case of P----, the point was not fully developed in the record.
It is quite clear that the vessel which brought H---- to Canada was one operated and under complete control of an agency of the United States; namely, the Department of the Army, and as such could not be held amenable to any of the penalties of the immigration laws. Nor, it follows, is there any basis upon which the application of section 17, Immigration Act of 1924, and section 23, Immigration Act of 1917, could be predicated.
Order: It is ordered that the appeal be sustained and the alien be admitted to the United States for permanent residence upon presentation of required documents.
For the reasons indicated above, this case is certified to the Attorney General for review of the Board's decision in accordance with section 90.12, title 8, Code of Federal Regulations.
The decision and order of the Board of Immigration Appeals dated March 6, 1951, are hereby approved.