56155/206
Decided by the Board December 18, 1943.
Seamen — Special deportation procedure — Section 150.11, title 8, Code of Federal Regulations.
1. The special deportation procedure under section 150.11, title 8, Code of Federal Regulations, is limited to seamen as defined in section 120.1, title 8, Code of Federal Regulations.
2. An alien who entered the United States by land from Canada where he had arrived as a seaman is not an alien seaman within the meaning of section 120.1, title 8, Code of Federal Regulations.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa. Act of 1917 — Entered without inspection. Entered at other than a designated port.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: The warrant of arrest in this case was issued by the district director of the New York District on September 15, 1943, but was not served until November 15, 1943. Immediately before the hearing was completed, the presiding inspector stated for the record his findings of fact, conclusions of law, and proposed order, to which the respondent duly excepted.
DISCUSSION: Apparently these proceedings were instituted and conducted pursuant to the provisions of section 150.11, title 8, Code of Federal Regulations, in the belief that the respondent was an alien seaman who last entered the United States in an illegal manner on or after September 1, 1939. The record discloses that the respondent, a 26-year old native and citizen of Norway, entered Canada in January 1941 as a seaman on the S.S. Tank Express. He deserted his vessel at that time and remained in Canada, where he was married, until his entry into the United States. This entry occurred about midnight on July 1, 1943, and was effected by the respondent rowing across the St. Lawrence River near Clayton, N.Y. He was, of course, not inspected at that time and did not present an immigration visa.
It is clear that the respondent did not, from a factual point of view, last enter this country as a seaman. The term "alien seaman" is defined in section 120.1, title 8, Code of Federal Regulations, to "include every alien signed on the ship's articles and employed in any capacity on board any vessel arriving in the United States from any foreign port or place." Though this definition is expressly limited to Part 120 of the regulations, we feel that it should also be applied to the special deportation procedure in cases involving alien seamen who last entered the United States subsequent to September 1, 1939, as set forth in section 150.11 of the regulations. Applying this definition, it becomes readily apparent that this respondent's case does not come within the scope of section 150.11. The hearing should thus have been conducted in the same manner as the ordinary deportation case is conducted. The presiding inspector should have prepared a memorandum setting forth his proposed findings of fact, conclusions of law and order, and this memorandum should have been served on the respondent in accordance with the provisions of section 150.7, title 8, Code of Federal Regulations. Notwithstanding this defect, the requirements of a fair hearing have been satisfied, and we shall now review the action of the presiding inspector.
The evidence, as stated above, sustains all the warrant charges. The charge that the respondent entered without inspection, however, is redundant, since it is in substance contained in the third charge stated in the warrant of arrest. For that reason we shall not find the respondent deportable on this charge. The respondent last lived in Canada for a period of 30 months, and we shall accordingly find him deportable to that country.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, native and citizen of Norway;
(2) That the respondent last entered the United States about midnight of July 1, 1943, by rowing across the St. Lawrence River near Clayton, N.Y.;
(3) That the respondent was not then in possession of an immigration visa;
(4) That the respondent lived in Canada for 30 months prior to his last entry.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924 the respondent is subject to deportation on the ground that at the time of entry he was an immigrant not in possession of an immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That under section 19 of the Act of February 5, 1917, the respondent is not subject to deportation on the ground that he last entered the United States without inspection;
(3) That under section 19 of the Act of February 5, 1917, the respondent is subject to deportation on the ground that he last entered the United States by water at a time or place other than as designated by immigration officials;
(4) That under section 20 of the Act of February 5, 1917, the respondent is deportable to Canada at Government expense.
OTHER FACTORS: In accordance with section 150.11 (d) (1), title 8, Code of Federal Regulations, the respondent applied for voluntary departure without filing Forms I-55 and I-255. The presiding inspector has recommended that he be deported and the Central Office of the Immigration and Naturalization Service concurs in this recommendation.
The respondent was married in Canada on February 6, 1941, to a citizen of that country. His wife is also under deportation proceedings, and we have entered an order of voluntary departure in her case (56155/201). They have no children, and the respondent was last employed as a dishwasher in a restaurant. He testified that he would be willing to reship foreign.
Though the respondent was not an alien seaman within the scope of section 150.11, title 8, Code of Federal Regulations, at the time of his last entry, we do feel that he is a seaman within the purview of our decision in the case of C---- D---- (56111/462) [ see page 259, this volume]. We shall therefore enter an order of deportation.
ORDER: It is ordered that the alien be deported to Canada at Government expense on the following charges:
That he is in the United States in violation of the Immigration Act of 1924 in that at the time of entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said Act or regulations made thereunder;
That he is in the United States in violation of the Act of February 5, 1917, in that he entered the United States by water at a time or place other than as designated by immigration officials.
It is further ordered, That if the alien returns to the United States from time to time and upon inspection is found to be a bona-fide seaman and entitled to shore leave, except for prior deportation, admission under the ninth proviso of section 3 of the Act of February 5, 1917, in reference to this ground of inadmissibility is hereby authorized for such time as the alien may be admitted as a seaman.
It is further ordered, That execution of warrant be deferred pending conclusion of prosecution, and, in the event of conviction and sentence, until the alien is released from imprisonment.