F-2261
Decided by Board September 17, 1948
Fine — For failure to submit typewritten or printed form (statement of master) concerning changes in crew — Section 36, Immigration Act of February 5, 1917 — Regulation under 8 C.F.R. 120.8 — Authority and scope of such regulation — Section 23, Immigration Act of February 5, 1917 — Discretionary authority not to impose penalty where violation established.
While section 36 of the Immigration Act of February 5, 1917 does not specifically set forth the requirement of submitting a statement of the master in typewritten or printed form, concerning changes in the crew, such requirement is set forth under the provisions of 8 C.F.R. 120.8 and section 23 of the above act is sufficiently broad in power to permit the promulgation of such regulation.
BEFORE THE BOARD
Discussion: This matter is before us upon petition of counsel for reconsideration of the six cases cited in the caption, and an additional case (F-2258, which will hereafter be determined in a separate decision) involving appeals from the decisions of the Commissioner of Immigration and Naturalization imposing fines in each case for violation of section 36 of the act of February 5, 1917 ( 39 Stat. 896-897; 8 U.S.C., sec. 171). The request for reconsideration indicated a desire for oral argument but we understand that counsel thereafter made known he does not wish oral argument. We will, therefore, proceed on that premise.
In the six cases fines were imposed for failure to submit in typewritten or printed form statement of the master concerning changes in the crew.
Section 23 of the Immigration Act of February 5, 1917, gives the Commissioner of Immigration and Naturalization authority to —
establish such rules and regulations, * * * reports, entries, and other papers, and shall issue from time to time such instructions not inconsistent with law, as he shall deem best calculated for carrying out the provisions of this act, and for protecting the United States. * * * He shall prescribe rules for the entry and inspection of aliens, etc. * * *.
Section 36 of the act of February 5, 1917 ( 39 Stat. 896-897; 8 U.S.C., section 171 provides, among other things:
before the departure of any such vessel it shall be the duty of such owner, agent, consignee, or master to deliver to such immigration and naturalization officer a further list containing the names of all alien employees who were not employed thereon at the time of arrival but who will leave port thereon at the time of her departure, and also the names of those, if any, who have been paid off and discharged and of those, if any, who have deserted or landed; and in case of the failure of such owner, agent, consignee, or master so to deliver either of the said lists of such aliens * * * departing * * * or so to report such cases of desertion or landing, such owner, agent, consignee, or master shall, if required by the Attorney General, pay to the collector of customs, etc. * * * the sum of $10 for each alien concerning whom correct lists are not delivered or a true report is not made as required * * *.
Pursuant to statute there was promulgated a regulation known as 8 C.F.R. section 120.8 which regulation provides, among other things:
* * * the statement of the master of the vessel regarding changes in crew as provided by said section 36 which is to be made prior to departure shall be typewritten or printed in the English language * * *.
The appeals from the decisions of the Commissioner of Immigration and Naturalization were dismissed on June 4, 1948, and reasons therefor were fully set forth on that occasion.
The principal contention of counsel at this time and as heretofore is that there was no intention to violate the requirements of statute and that steps had been taken to prevent any further violation. The violation is, therefore, in our opinion, conceded but counsel at this time contends (1) that the regulation is beyond the scope of the law and (2) that this Board has discretionary power not to impose these penalties.
In support of his contention counsel now advances the allegation that handwritten forms have been accepted in the past and that fact should be considered as a mitigating factor.
The issue presented by counsel is, therefore, whether the regulation requiring the list or statement of the master to be typewritten or printed in the English language is beyond the scope of the law.
As heretofore pointed out, while section 36 does not specifically set forth this requirement, the fact remains that section 23 of the act of February 5, 1917, authorizes the Commissioner of Immigration and Naturalization to promulgate the necessary rules for carrying the law into effect. Certainly section 23 of the Immigration Act of February 5, 1917 is sufficiently broad in power to permit of the promulgation of 8 C.F.R. Section 120.8 which makes it necessary to prepare the statement of the master in typewritten or printed form.
In view of the evidence of record and after reconsideration thereof as well as careful consideration of the petition to reconsider, this Board is of the opinion that the violations here complained of are clearly established. The precedents cited by counsel are, in our opinion, distinguishable in that there was a complete omission to comply with the requirements of the statutes and the regulations and there is no discretionary authority on the part of this Board not to impose a penalty where the violation is so established. Order: It is ordered that the petition for reconsideration be and the same is hereby denied.
The two cases cited by counsel, S.S. Rio Bermejo, 56160/807, August 6, 1946, and S.S. Rio Tunuyan, 56160/864, August 6, 1946, merely involved the question of whether there was a failure, as alleged, to furnish certain information in column 6 of Form 680, crew list.