F-0500-251
Decided by Central Office April 20, 1950
Fine — Bringing alien afflicted with tuberculosis — Section 9, Immigration Act of 1917 — Nonimposition of fine though such affliction ascertainable at time of foreign embarkation, if alien admitted temporarily for medical treatment.
By reason of long administrative practice, it has been held that if an alien is temporarily admitted under the 9th proviso to section 3 of the Immigration Act of 1917 (for medical treatment in this case) notwithstanding the alien's inadmissibility (as one afflicted with tuberculosis in this case), no fine under section 9 of the above act will be considered to have been incurred even though the ground of inadmissibility could have been ascertained at the time of foreign embarkation, note being taken of the proviso contained in section 9, supra.
BEFORE THE CENTRAL OFFICE
Discussion: This is a fine proceeding instituted under section 9 of the Immigration Act of 1917 against the Master of the S.S. Flying Enterprise for bringing to the United States from foreign the above-named alien who was found to be afflicted with tuberculosis.
The subject alien was a passenger aboard the S.S. Flying Enterprise when it arrived at Baltimore, Md., from foreign via Norfolk, Va., on February 27, 1950. He was certified by a surgeon of the United States Public Health Service as afflicted with tuberculosis, right upper lobe, and, consequently, was excluded by a Board of Special Inquiry. The subject applied for temporary admission for medical treatment. By order dated March 6, 1950, it was directed that the alien be admitted to the United States under the 9th proviso to section 3 of the Immigration Act of 1917, as a temporary visitor for 3 months for medical treatment notwithstanding that he was afflicted with tuberculosis and that his passage was paid for with the funds of another person, conditioned upon the Department of State granting a waiver of the visa requirement, and upon the posting of a treatment, public charge and departure bond in the amount of $1,000 (C.O. File A-7424817). The subject met the conditions of the order and was admitted under section 3 (2) of the Immigration Act of 1924, for a period of 3 months on March 14, 1950. Protest has not yet been received and the time to do so will not expire until May 1, 1950. On the basis of a proviso contained in section 9 of the Immigration Act of February 5, 1917, as amended, hereinafter discussed, the Acting District Director at Baltimore, Md., recommends that fine be not imposed. Said proviso provides that nothing contained in section 9 "shall be construed to subject transportation companies to a fine for bringing to ports of the United States aliens who are by any of the provisos or exceptions to section 3 of this act exempted from the excluding provisions of said section." In the instant case, the subject was admitted to the United States under the discretionary authority granted to the Attorney General by the 9th proviso to section 3 of the Immigration Act of 1917. "By reason of long administrative practice, it has been held that where an alien is so admitted, no fine under section 9 of the 1917 Act will be considered to have been incurred even though the ground of inadmissibility could have been ascertained at the time of foreign embarkation." Matter of Plane NC-19903, 56088/246 (October 23, 1942); Matter of S.S. Copiapo, 56118/384 (May 14, 1943); Matter of Plane CF TOT, 56160/617 (January 5, 1946). Accordingly, it is concluded that no penalty should attach herein.
Recommendation: It is recommended that fine be not imposed. The amount involved is $1,000, plus $208 passage money.
So ordered.