56096/807
Decided by the Board December 17, 1942.
Fines — Section 20, Immigration Act of 1924 — Failure to comply with order to detain on board — Act of May 22, 1918, as amended.
1. The Act of May 22, 1918, as amended, requiring nonimmigrants to present certain documents did not become inoperative upon the enactment of the Immigration Act of 1924.
2. Section 20 of the Immigration Act of 1924 does not provide for an appeal from an order of detention, and when alien seamen are ordered detained after a fair but summary examination, the duty to detain becomes absolute and a breach thereof renders the responsible persons liable to fine.
3. A notice to detain is not invalid, because it did not in all respects specify the names of the seamen ordered detained, when the persons upon whom the duty of detention was imposed knew which seamen were required to be detained by the notice.
4. A notice to detain is not invalid because not signed by the immigration officer in charge of the port.
Mr. D.M. Tibbetts, of Kirlin, Campbell, Hickox, Keating, and McGrann, New York City, for the respondents.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: These cases, 11 in number (involving 25 alien Chinese members of the respective crews), were originally part of 18 that were argued simultaneously before us on March 18, 1942. We have disposed of 5 cases by separate order (56106/11, 56096/295-804-/806-/853), it having been unnecessary to discuss certain of the issues presented therein. Likewise in two cases (56096/645-/805) we have given counsel further opportunity to submit evidence that the seamen involved in those cases actually departed from the United States on the same vessels upon which they arrived, as claimed.
We now proceed to consider the remaining 11 cases involving 25 alien Chinese seamen.
These proceedings, of course, are predicated on the basis of section 20 of the Immigration Act of May 26, 1924 (8 U.S.C.A. 167), and are against the agents of the vessels enumerated above, namely, Furness, Withy Co., Ltd. This section provides:
(a) The owner, charterer, agent, consignee, or master of any vessel arriving in the United States from any place outside thereof who fails to detain on board any alien seaman employed on such vessel until the immigration and naturalization officer in charge at the port of arrival has inspected such seaman (which inspection in all cases shall include a personal physical examination by the medical examiners), or who fails to detain such seaman on board after such inspection or to deport such seaman if required by such immigration and naturalization officer or the Attorney General to do so, shall pay to the collector of customs of the customs district in which the port of arrival is located, the sum of $1,000 for each alien seaman in respect of whom such failure occurs. No vessel shall be granted clearance pending the determination of the liability to the payment of such fine, or while the fine remains unpaid, except that clearance may be granted prior to the determination of such question upon deposit of a sum sufficient to cover such fine, or of a bond with sufficient surety to secure the payment thereof approved by the collector of customs.
(b) Proof that an alien seaman did not appear upon the outgoing manifest of the vessel on which he arrived in the United States from any place outside thereof, or that he was reported by the master of such vessel as a deserter, shall be prima facie evidence of a failure to detain or deport after requirement by the immigration and naturalization officer or the Attorney General.
The vessels involved all arrived at the port of New York between June and November of 1941, as established by the records. The seamen named were employed thereon as members of the various crews. Following arrival, notices to detain said seamen on board their respective vessels were served on the agents. The notices were signed by a United States immigrant inspector, "By direction of the immigration and naturalization officer in charge." Thereafter those seamen effected their escape from the vessels. Thereupon notices of liability for fine were also served upon the agents.
The issues in controversy bear on the validity of the notices to detain.
Three — give the names of seamen required to be detained. — Executive Order 8429 appears thereon.
Three — are general and require detention of all the Chinese members of the crew. Executive Order 8429 and General Orders C-22 and C-31 appear thereon.
One — is also general and requires detention of all Chinese members of the crew. Executive Order 8429 and General Order C-22 appear thereon.
One — is general and contains no reference either to the Executive order or the general orders.
One — is also general and requires detention of all Chinese members of the crew. General Order 31 appears thereon.
One — requires detention of all Chinese members of the crew except two, the latter being specified by name, General Orders C-22 and C-31 appear thereon.
DISCUSSION: The contentions of counsel for the agents may be summarized as follows:
(a) That Act of May 22, 1918, as extended by the Act of March 2, 1921, upon which Executive Order 8429 is predicated was rendered inoperative by the basic immigration quota act of May 26, 1924, and that, therefore, said Executive order is not valid;
The Act of May 22, 1918 ( 40 Stat. 559), reads in pertinent part:
"That when the United States is at war, if the President shall find that the public safety requires that restrictions and prohibitions in addition to those provided otherwise than by this act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful —
"(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe."
The pertinent part of the Act of March 2, 1921 ( 41 Stat. 1217), reads:
"That the provisions of the act approved May 22, 1918, shall, insofar as they relate to requiring passports and visas from aliens seeking to come to the United States, continue in force and effect until otherwise provided by law."
Executive Order 8429 of June 5, 1940, provides as follows:
"By virtue of and pursuant to the authority vested in me by the Act of May 22, 1918 ( 40 Stat. 559), as extended by the Act of March 2, 1921 ( 41 Stat. 1205, 1217), I hereby prescribe the following regulations governing the entry of alien seamen into the United States:
(b) That General Order C-22, dealing with the fingerprinting and registration of alien seamen contemplates such registration as a condition precedent to shore leave, and as such goes beyond the scope of section 20, supra.
Sec. 170.8, pt. 170, title 8, C.F.R. (referred to by counsel as General Order C-22), provides for the registration and fingerprinting of arriving alien seamen by the immigrant inspector who gives them the regular inspection.
(c) That General Order C-31, is subject to the same objections made with respect to General Order C-22.
Sec. 120.21, pt. 120, title 8, C.F.R. (referred to by counsel as General Order C-31) provides, pertinent hereto, that a bona fide seaman wishing to go ashore in the United States pursuant to the provision of section 3 (5), Immigration Act of 1924, may be granted shore leave for the period of time the vessel on which he arrives remains in the United States if he establishes to the satisfaction of the immigration officer at the port of arrival:
(a) That he is a bona fide seaman. * * *
(c) That he is in possession of identifying travel documents in the nature of a passport showing his nationality and identity and bearing his fingerprints, and
(d) That he has been registered as an alien. * * *
(d) That the notices to detain did not conform to the requirements of rule 7, subdivision (h), paragraph 2, immigration rules and regulations of January 1, 1930, as amended to December 31, 1936, to the effect that the notice shall set forth the full name of the alien.
Sec. 120.35, pt. 120, title 8, C.F.R. (which superseded, but is identical with the rule governing notice to detain) provides, in part, that where for any cause the immigration and naturalization officer in charge of any port of arrival finds that any alien employed on board any vessel arriving in the United States from any place outside thereof, should be detained on such vessel or deported and notice shall be issued to the parties enumerated in sec. 20, Immigration Act of 1924, and that "the notice shall set forth the full name of such alien."
(e) That the notices to detain were not issued in accordance with section 20, supra, in that they were issued by a boarding inspector, whereas that section places responsibility on the master and other persons named therein to detain alien seamen on board after inspection, only if directed to do so by "the immigration officer in charge at the port of arrival."
(f) That the duty imposed to detain said seamen was impossible of performance because of existing abnormal conditions, and therefore under the rule of impossibility of performance the agents were relieved of any obligation to detain the seamen.
The Act of May 22, 1918, was a wartime measure. The basic immigration law then in effect was the Act of February 5, 1917, and that act was silent as to requirements for the possession of documents in the nature of passports and visas for aliens entering the United States, although the manifest requirements covering alien immigrants were, and are, set forth therein. Under it, aliens ineligible for admission to the United States presented themselves at ports or at the border for inspection, and if their exclusion was decided upon they would be deported. With the advent of the First World War the problem presented by the absence of documentary requirements affording opportunity for preliminary examination abroad, became acute. That situation or emergency brought into existence the Act of May 22, 1918, empowering the President to require such examination and documentation, as well as to impose other restrictions upon the entry of aliens into the United States. The act was, to be sure, a wartime measure, for it was limited in its application thereto. With the advent of peace, and the provisions of the act about to lapse, the Congress, desiring to avert the preexisting situation, continued the provisions of the act, insofar as they permit the imposition of documentary requirements by the Act of March 2, 1921, "until otherwise provided by law."
It is the settled view that the Act of March 2, 1921, is no longer applicable with respect to immigrants. Subsequent to the passage of that act Congress erected the basic quota Immigration Act of 1924, setting up detailed requirements for immigrants entering the United States. That act, inter alia, requires that immigrants entering the United States have a valid unexpired immigration visa.
But the act of 1924 did not purport to set down any documentary requirements for nonimmigrants. They remained, for that purpose, in status quo.
The manifest requirements covering immigrants are set forth in the Immigration Act of February 5, 1917, as amended.
In Johnson v. Keating ex rel. Tarantino, 17 F.2d 50 ( see also United States v. One Airplane, 23 F. 2d 500), upon which counsel mainly relies, the court did not decide, nor have before it, the question whether the Immigration Act of 1924 repealed the provisions of the Act of May 22, 1918, with respect to the documentary requirements covering nonimmigrants. The court merely decided that despite the Immigration Act of 1924 an alien returning after a temporary absence abroad is not required to present a visa or a return permit upon arrival. We may state, incidentally, that that particular issue was overruled by the Supreme Court in United States ex rel. Polymeris v. Trudell, 284 U.S. 279. But significantly, in the Keating case, the court, although obiter dicta, appears to support the view that the act of 1918, as amended, remained in force as to documentary requirements for nonimmigrants. The court observed that the power of the President under the 1918 act, to impart by proclamation additional restrictions on the departure of persons from and their entry into the United States continued in effect by virtue of the Act of March 2, 1921, but was terminated as to immigrants by the act of 1924.
In Flora v. Rustad, 8 F.2d 335, the court had before it the question whether an alien was criminally liable for entering the United States in 1923 without a passport as required by the Executive order promulgated pursuant to the Act of May 22, 1918. The position was taken that the Act of March 2, 1921, did not extend the penal provisions of the former act. Although not before it, the court expressed the view that the act was still applicable as to the President's power in requiring compliance with certain documentary requirements for nonimmigrants, by the following language: "A statute passed for a special purpose and effective during named conditions and for a limited time may be extended, of course, by a later statute to be effective without limit and without conditions. It may be extended in its entirety or in part, or as to all of its subject matter or part thereof."
The court, although the issue was not before it, also took cognizance of the basic quota immigration act of May 26, 1924, and observed that section 31 provided that if any alien arrives in the United States before July 1, 1924, the right to admission shall be determined without regard to the provisions of this section, and that by implication an arrival subsequent to the date of said act would be determined by the provisions thereof.
In United States, on petition of Albro ex rel. Graber v. Karnuth, 30 F.2d 242 ( see also United States ex rel. Komlos v. Trudell, 35 F.2d 281), the court held that the President's authority to make passport regulations was found in the Act of May 22, 1918, and continued in force by authority of the Act of March 2, 1921.
The Attorney General in his opinion to the Secretary of State of November 22, 1940, 39 Op. Atty. Gen., stated, "It is my opinion, however, that the 1921 act is no longer applicable with respect to immigrants."
Counsel, in his original brief, cites the foregoing authorities in support of his position that the 1924 immigration act rendered the 1921 act wholly inoperative. However, in his supplemental brief he states that, in his opinion, there seems to be no distinction between immigrants and nonimmigrants. However, this view does not find support, and we think it is quite clear that his statement is without merit. It follows, therefore, that there can be no question as to the validity of Executive Order 8429, nor as to the validity and reasonableness of the general orders involved.
It is not argued that the seamen were not inspected and examined. The immigration officers have the complete duty of surveillance of all persons on vessels arriving from a foreign port and may demand detailed information, decide that certain members of the crew are not bona fide seamen, and direct their detention. Yonejiro Nakasuji v. Seager, 3 F. Supp. 410. In United States ex rel. D'Istria v. Day, 20 F.2d 303, the court held that section 20, supra, does not afford an appeal from an order of detention, but determined, and we agree, that although the proceeding may be summary and indeed intended to be, seamen must be accorded a fair examination. When this has been accomplished section 20 merely requires detention when so ordered. The duty becomes absolute and a breach thereof renders the responsible person liable to a fine. ( Compagnie Generale Transatlantique v. Elting, 298 U.S. 217; Denholm Shipping Co., Ltd. v. Elting, 55 F. 2d 422-423; Lloyd Royal Belge Societe Anonyme v. Elting, 61 F. 2d 745, certiorari denied 289 U.S. 730; United States v. Lacher, 134 U.S. 624.)
It has been held that notice to detain need not be in writing, nor in any particular form since the requirements of the Immigration Act are fulfilled if the person ordered to detain the seamen understands the nature of the order and knows which seamen are to be detained. British Empire Steam Navigation Co., Ltd. v. Elting, 74 F. 2d 204.
The notices to detain did not in all respects specify the names of the seamen ordered detained. The rule provides that "notice to detain specify the name of the seaman to be held on board." The seamen involved in the cases now before us, with one exception, were all Chinese crewmen. It is not contended that the agents did not know the persons whom they were required to detain. This is established by the record. It is merely argued by counsel that the notices to detain did not specify the names in accordance with the rule. We cannot accede to the position taken by counsel. The reason for the rule is obvious. Before a seaman can be detained it is necessary that the person upon whom the duty is imposed know which person he is required to detain. The notices, in our opinion, were definite and left no doubt as to the seamen who were required to be detained, including the non-Chinese member mentioned whose name was specified. Thus, in the case of British Empire Steam Navigation Co., Ltd. v. Elting, it was held that an order for the detention of alien Chinese seamen was not invalid because their names were not given in the notice if the person ordered to detain understood the nature of the order and knew which seamen were to be detained. As a matter of fact, section 20, supra, does not require that the names be specified. It is only necessary that the person sought to be charged be acquainted with the names of the seamen whom he is directed to detain. This view finds support in the decision of the Supreme Court of the United States in Compagnie Generale Transatlantique v. Elting, in which the Court stated a notice to detain need only be brought to the knowledge of the person sought to be charged in some manner. We must reject, therefore, the argument that certain of the notices to detain are invalid because, without more, they did not specify the names of the Chinese seamen to be detained.
See footnote 7, p. 368.
Lastly, counsel maintains that the notices to detain were defective in that they were signed by a United States immigrant inspector, "By direction of the immigration and naturalization officer in charge," whereas under the statute responsibility attaches to the agent or other person named in the statute only if directed to do so by the official named in the statute. We are unable to accept this application of the statute. Obviously, it would be a physical impossibility for the officer in charge at a port of arrival to make a personal inspection and to sign orders in the case of every vessel arriving in the United States. The statute simply requires a fine against the person upon whom the duty rests who fails to detain on board specified seamen when so ordered to do so. Thus, the statute is satisfied when the matter of detention is brought to the knowledge of the person sought to be charged prior to the time when escape is effected. This position, too, finds support in the language used by the Supreme Court of the United States in the Compagnie Generale Transatlantique case, in which it held that notice to detain need only be brought in some manner to the knowledge of the person sought to be charged. This implies that a notice to detain need not be in writing. It was so held in British Empire Steam Navigation Co., Ltd. v. Elting. In United States ex rel. Petach v. Phelps, 40 F. 2d 500 ( see also Lew Shee v. Nagle, 22 F. 2d 107), it was held that an order for arrest and deportation signed by an Assistant to the Secretary of Labor was valid.
The identical situation confronted the court in Lloyd Royal Belge Societe Anonyme v. Elting. In that case the order to detain bore the signature of the immigrant inspector as "by direction of the immigration officer in charge." The court held that the officer in charge at the port of a vessel's arrival may delegate duties respecting notification to the master to detain an alien seaman.
We find, therefore, there was a failure on the part of the agents to detain on board and deport the seamen named after proper notices had been duly served upon them. Hence, and as a breach of that duty has been established, liability to a fine attaches.
FINDINGS OF FACT: Upon the basis of the evidence adduced at the hearing, and upon consideration of the entire record, it is found:
(1) That the vessels named arrived at the port of New York under date specified;
(2) That the seamen specified were members of the crews of those vessels;
(3) That notices to detain on board and deport said seamen were served on the agents and acknowledged;
(4) That thereafter said seamen effected escape from the vessels;
(5) That said seamen were not on board when the vessels sailed foreign from the United States;
(6) That thereafter notices of liability for fine were served on the agents and acknowledged.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 20, Immigration Act of May 26, 1924, the agents have incurred liability for fines involving each of the 25 seamen named, in that they failed to detain on board and deport said seamen after notices had been regularly served upon them.
ORDER: It is ordered that fines be imposed. The sum involved is $25,000, $1,000 for each of the 25 alien Chinese seamen involved.