F-0300-5538.
Decided by Board September 10, 1954.
Fine — Section 256 of Immigration and Nationality Act — Liability incurred where crewmen discharged though not paid off.
Where alien crewmen were transferred to vessels other than the one on which they arrived in the United States without the permission required by 8 C.F.R. 252.4 having been obtained, a fine under section 256 of the Immigration and Nationality Act is incurred even though such crewmen may not have been "paid off" and may still have continued in the employ and under the pay of the same corporation.
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, New York, New York, bearing date July 23, 1953, wherein fine in the amount of $5,000, $1,000 for each crewman concerned, was imposed upon the Transportadora Grancolombiana, Ltd., agents for the aforementioned vessel, which vessel arrived at New York on February 10, 1953, from Kingston, Jamaica, British West Indies, for violation of section 256 of the Immigration and Nationalitly Act ( 8 U.S.C. 1286).
The specific violation complained of is discharging the alien crewmen as aforesaid without first having obtained the consent of the Attorney General.
Notice of intention to fine under the Immigration and Nationality Act was served upon and receipt thereof acknowledged on April 30, 1953, by the Transportadora Grancolombiana, Ltd.
The evidence of record as contained in a report of an officer of the Immigration and Naturalization Service, New York City, bearing date March 19, 1953, is to the effect that in a report pertaining to changes in crew filed by the master (Form I-489) bearing date February 14, 1953, relating to the departure of the vessel as aforesaid on February 14, 1953, from New York, New York, for Maracaibo, South America, it is shown that the alien crewmen above mentioned were discharged at the port of New York. The list of arriving crewmen (Form I-480) shows the admission of these crewmen under and pursuant to the provisions of section 252 of the Immigration and Nationality Act ( 8 U.S.C. 1282) for a period of time (not exceeding 29 days) during which the vessel on which they arrived remained in port. The New York office of the Immigration and Naturalization Service has no record of permission being granted to discharge or pay off these crewmen.
Section 256 of the Immigration and Nationality Act, ( supra), provides, in part:
It shall be unlawful for any person, including the owner, agent, * * * of any vessel * * * to pay off or discharge any alien crewman, except an alien lawfully admitted for permanent residence, employed on board a vessel * * * arriving in the United States without first having obtained the consent of the Attorney General. If it shall appear to the satisfaction of the Attorney General that any alien crewman has been paid off or discharged in the United States in violation of the provisions of this section, such owner, agent, * * * or other person, shall pay to the collector of customs of the customs district in which the violation occurred the sum of $1,000 for each such violation. * * * Such fine may, in the discretion of the Attorney General, be mitigated to not less than $500 for each violation, upon such terms as he shall think proper.
8 C.F.R. 252.4 pertaining to request for change of period of landing provides in part:
An alien crewman permitted to land for the period set forth in section 252 (a) (1) of the Immigration and Nationality Act who is maintaining his status but who desires to depart as a member of the crew of a vessel * * * other than the one on which he arrived, may, within the period for which permitted to land, apply in person to an immigration officer to have his landing changed to that authorized under section 252 (a) (2) of the Immigration and Nationality Act.
As hereinabove set forth no such permission was requested or granted.
Counsel, in oral argument before this Board, indicated that the Transportadora Grancolombiana, Ltd., is a corporation privately owned but originally was organized by the governments of Venezuela, Colombia, and Ecuador and that shortly following the enactment of the provisions of Public Law 414 (McCarran-Walter Act), the alleged infractions of the statute occurred.
The principal contention is that none of these parties was discharged or paid off.
In connection with the present appeal, the Assistant Director, Insurance and Claims Department of the aforementioned owner or agent stated that on February 14, the vessel here involved sailed from New York for Buenaventura and other Colombian ports. Prior to departure the New York office of the corporation received instructions from Caracas and Bogota to carry out certain transfers of crewmen. These instructions were directed to the corporation for execution inasmuch as they could only be carried out conveniently in New York.
J---- S----, a Venezuelan, and S---- R----, a Colombian, were cadets participating in the training program of Venezuela and had been serving their prescribed tour of sea duty on board the ship preparatory to examination for officers' licenses in the furtherance of maritime needs and prestige of Venezuela. Upon arrival at New York these two cadets had satisfactorily completed their training program and were ready for examination. They were ordered by the Bogota and Caracas principals to return to Caracas to sit for their examination. These men were merely transferred to the M/V Cd. De Manizales which was then at the adjacent pier and which vessel sailed from New York February 14, for La Guaira and other Venezuelan ports. The transfer was effected on February 13, 1953, and reported on both Forms I-489 and I-480.
As to E---- M---- and G---- R----, both Venezuelans and members of the crew, it appears that they were due for annual vacations and the Caracas principals of the corporation ordered their transfer to the same vessel as the preceding two crewmen and their transfer was similarly effected.
As to A---- G----, a Colombian, the Flota Mercante Grancolombiana, S.A., a joint Venezuelan, Colombian, and Ecuadorian maritime venture had a large building program under way, in which program was being built the M/V Cd. De Valencia, which vessel was then on her maiden voyage. To command the newly constructed vessel it was necessary that experienced personnel be assigned and on February 13, orders were received from Caracas to transfer G----, a chief electrician from the M/V Cd. De Barquisimeto in order that he might join the M/V Cd. De Valencia in Montreal. The transfer was made promptly so that no loss of valuable time would occur. The transfer was effected February 13 and G---- departed by train for Montreal, Canada.
It is averred that all of these crewmen continued in the employ and under the pay of the corporation. There was no intention, it is asserted, of violating the statute.
While we may agree that there was no intention to permit these aliens to land in the United States unlawfully or to afford them an opportunity to remain in the United States illegally, the fact remains that permission to transfer these crewmen to another vessel was neither obtained by the principals, their agents, or the aliens themselves as required by 8 C.F.R. 252.4 as hereinabove set forth. The seamen were "discharged" from the ship upon which they arrived and permission for such discharge was not authorized. The fact that there may not have been a "pay off" does not change the situation. In these circumstances, it is our conclusion that a violation of the statute is established adequately.
The remaining question for determination is the request for mitigation of the amount of penalty. In view of the fact that it is shown and uncontroverted that all of these alien crewmen departed from the United States, we shall mitigate the amount of penalty to the extent of $500 for each crewman, the remainder $500 being permitted to stand.
Order: It is ordered that the appeal from the decision of the District Director of Immigration and Naturalization, New York, New York, bearing date July 23, 1953, be and the same is hereby dismissed.
It is further ordered that the amount of penalty be mitigated to the extent of $500 for each alien. The remainder $500 for each crewman to stand, the total penalty $2,500.