56033/568
Decided by the Board November 12, 1942.
Fines — Section 18, Immigration Act of 1917 — Failure to guard alien.
Liability under section 18 of the Immigration Act of 1917 does not arise for failure to guard an alien safely.
Mr. George W. Stilson, Board attorney-examiner.
STATEMENT OF THE CASE: This is a fine proceeding under section 18 of the 1917 act against the Pan American Airways for failure to guard safely the alien named (A---- O----). The plane NC 81-V arrived at Miami, Fla., on May 7, 1940, bringing the alien named. He was excluded by a board of special inquiry as a person likely to become a public charge. On appeal, admission was authorized on bond of $500. He did not furnish such bond, however, and instead of waiting longer left the hotel or boarding house where he was on parole pending final decision. He left Miami and proceeded to Atlanta, Ga. It is because he was not guarded so that he could not escape that this proceeding was instituted.
DISCUSSION: In the protest, attention is called to the fact that a fine of $300 may be imposed under section 18 for the violation of certain requirements set forth in that section, and no others. No one of these requirements is "failure to guard safely" an excluded alien. The language does not lie within the provisions of section 18. That section does make it unlawful for any one in charge of a vessel to refuse to receive back on board the vessel aliens brought to the United States in violation of law, or to fail to detain them thereon, or to refuse or fail to return them to the foreign port from which they come. The reference is to return to the vessel after being removed therefrom for examination as to their qualifications for entry as provided in section 15. Section 15 provides at its close that "any refusal or failure to comply with the provisions hereof shall be punished in the manner specified in section 18 of this act." Among the provisions referred to is that stating that immigration officials may order the temporary removal of the aliens from the vessel for examination at a designated time and place. This was done in the case of the instant alien in requiring him to present himself at the immigration office for examination by a board of special inquiry on the day following his arrival. It further provides that "such temporary removal shall not be considered a landing, nor shall it relieve vessels, the transportation lines, masters, agents, owners, or consignees of the vessel upon which said aliens are brought to any part of the United States from any of the obligations that, in case such aliens remain on board, would under the provisions of this act bind the said vessels, transportation lines, masters, agents, owners, or consignees: Provided, That where removal is made to premises owned or controlled by the United States said vessels, transportation lines, masters, agents, owners, or consignees, and each of them, shall, so long as detention there lasts, be relieved of responsibility for the safekeeping ing of such aliens." It therefore appears that vessels, transportation lines, masters, agents, owners, or consignees are responsible for the safekeeping of aliens during and after the time of their examination, unless removed to premises owned or controlled by the United States. It is apparently on the basis of this fact that this fine proceeding has been instituted, and by the last clause of section 15 it conceivably might be held that failure to "guard safely" the alien might incur a fine. It is represented that the alien could not be detained on board the plane, and that the company had no police authority to hold him in custody. This is believed to have been the fact prior to the issuance of regulations applying the provisions of the immigration laws to aircraft, which regulations became effective January 1, 1942. Manifestly, the alien could not be detained on board the plane, since he was ordered to appear elsewhere for examination. He was, therefore, allowed to go to a boarding house or hotel on parole to the proprietor of the place, and, in harmony with the requirement, he did appear for examination before a board of special inquiry on the following day. The board excluded him, but he appealed, and during the pendency of the appeal he could not be returned to the plane for deportation. He remained at the hotel or boarding house to which he had been allowed to go for some 20 days, until after the decision granting admission on bond was communicated to him. He then failed to post the bond and disappeared from the city. Under the circumstances, it does not appear that the Pan American Airways could have detained the alien. They did not refuse to receive him back on board, and when he was later found and arrested and delivered to them they returned him to Cuba. In view of the facts stated, it is believed that a fine has not been incurred.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the plane NC 81-V arrived at Miami, Fla., May 7, 1940, bringing the alien named;
(2) That the alien named was excluded by a board of special inquiry but his admission on bond was authorized by the Board of Immigration Appeals;
(3) That the alien, after being informed of the decision, did not furnish bond but departed to the interior of the country;
(4) That the offense as named in the notice of intention to fine is not an offense as named in section 18 of the 1917 act.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 18 of the 1917 act a fine has not been incurred.
ORDER: It is ordered that fine be not imposed. The amount involved, $300, should be returned to the depositor.