BOS 10/11.7
Decided by Board June 28, 1957
Fine — Section 273 (a) and (b), Immigration and Nationality Act — Not applicable to the bringing of alien stowaways.
Section 273 (a) and (b) of the act does not authorize the imposition of fine for bringing to the United States an alien stowaway who does not have an unexpired visa. In such a case the exclusive remedy is that provided in section 273 (d) of the act.
BASIS FOR FINE:
Act of 1952 — Section 273 (a) ( 8 U.S.C. 1323 (a)) — Aliens involved: S---- P----, L---- G----, I---- B---- and V---- R----.
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of a district director of the Service dated February 26, 1957, imposing a fine of $4,000, that is, $1,000 for each of the 4 aliens mentioned above.
The appellant is A.C. Lombard's Sons, agent for the SS. Saint Tropez on the occasion of its arrival at Boston, Massachusetts, on November 2, 1956. During the inspection of the vessel immigration officers discovered the 4 aliens named above who were stowaways on this vessel. On November 3, 1956, an immigration officer served a notice to detain the stowaways on board the vessel and to deport them. Such notice is not part of the record but presumably it was served under section 273 (d) of the Immigration and Nationality Act ( 8 U.S.C. 1323 (d)) on an officer of the vessel. This order was complied with until the stowaways were removed by Government officers in connection with criminal proceedings. On December 4, 1956, long after the departure of the vessel, a notice of intention to fine under section 273 (a) of the Immigration and Nationality Act was served on the agent. During the oral argument, counsel stated that the owners of the vessel subsequently arranged for the deportation of the 4 aliens involved.
The sole issue to be determined is whether a fine was incurred under subsection (a) of section 273 of the Immigration and Nationality Act. Subsection (d) of that section related specifically to stowaways but the Service does not claim that the appellant would be liable thereunder and, as a matter of fact, it is clear that he did comply with subsection (d).
The Service contends that the 4 stowaways encountered little difficulty in boarding the vessel and concealing themselves. In other words, the contention is that the master of the vessel was negligent. The smuggler of the aliens had made previous arrangements with 2 of the crewmen on the vessel. One of the crewmen was on the bridge of the vessel when the prospective stowaways came aboard and the other crewman met them at the gangway. The 2 crewmen made statements before an officer of the Service that they were the only persons on the vessel who had anything to do with the smuggling of the aliens and that none of the officers or other members of the crew were aware of the presence of the stowaways. The Service does not contend that the master was aware that the stowaways were on board and, assuming that he was negligent, there is no claim that there was actual negligence on the part of this appellant who acted as agent for the vessel only on this one occasion.
Since the vessel had departed prior to the service on December 4, 1956, of the notice of intention to impose a fine, the appellant is under a handicap to establish the absence of negligence on the part of the master. The order of the district director dated February 26, 1957, contains assertions that, apart from a statement of the chief officer of the vessel, there is no evidence that there was any search of the vessel before it left the last foreign country, and that the statement of the chief officer shows that "the only search made during the voyage was undertaken one day before arriving in the United States and was restricted to a search of crew quarters and crew effects primarily for the purpose of uncovering any contraband articles." Although there may be certain subtleties in the language used which would make it susceptible to another interpretation, we would assume that these assertions mean that there was no search of the vessel before it left the last foreign country. However, the chief officer's statement dated November 3, 1956, shows, not only the search for contraband on the day prior to arrival in the United States, but that a thorough search of the vessel was made at Lisbon, the last foreign port, after completion of loading and one hour before sailing on October 18, 1956. This search was primarily for stowaways but the 4 aliens involved were not discovered.
Section 101 (a) (3) of the Immigration and Nationality Act ( 8 U.S.C. 1101 (a) (3)) provides that the term "alien" means any person not a citizen or national of the United States, and section 273 (a) of that act ( 8 U.S.C. 1323 (a)) provides, in part, as follows: "It shall be unlawful for any person * * * to bring to the United States * * * any alien who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder." The Service contends that the 4 stowaways come within the statutory definition; that they required, but did not have, visas; and that the case, therefore, comes within the purview of section 273 (a) because that provision relates to "any alien." In Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), and Toyota v. United States, 268 U.S. 402 (1925), the Supreme Court had under consideration statutory provisions which also employed the words "any alien," and in both cases that Court held that certain aliens were, nevertheless, not included.
During the oral argument, the Service representative cited The Manuel Arnus, 75 F. (2d) 943 (C.C.A. 2, 1935), in which a fine of $1,000 had been imposed against a carrier who discovered a stowaway en route but the stowaway escaped after the immigrant inspector had directed the master to deliver the stowaway to the immigration station. The court held that the stowaway was within the scope of section 10 of the Immigration Act of 1917, as amended by section 27 of the Immigration Act of 1924 (8 U.S.C. 146, 1946 ed.) which made it "the duty of every person * * * bringing an alien to * * * the United States, to prevent the landing of such alien in the United States at any time or place other than as designated by the immigration officers." Section 271 (a) of the Immigration and Nationality Act ( 8 U.S.C. 1321 (a)) is the comparable section. Some provisions of the Immigration and Nationality Act, which refer to "alien," undoubtedly include alien stowaways. However, the very fact alien stowaways would apparently come within section 271 (a) because of the court decision cited and the fact that section 273 (d) contains a provision of similar import (that the alien stowaway be detained on board for immigration inspection) is an indication that Congress was establishing a specific and exclusive procedure in section 273 (d) for dealing with stowaway cases.
The contention that the 4 aliens here involved are within the defined term "alien" and that the words "any alien" in section 273 (a) of the Immigration and Nationality Act must necessarily include them is similar to a contention which was advanced in Matter of SS. Greystoke Castle and M/V Western Queen, F-1300-161 and F-0605-48, 6 IN Dec. 112 (Atty. Gen., 1954). It was held there that alien crewmen, who were also within the definition of "alien" in section 101 (a) (3), were not included in the words "any alien" appearing in section 273 (a). As a matter of fact, in that case we assumed that alien stowaways were not within subsection (a) of section 273 because they were specifically covered by subsection (d), and the majority opinion mentioned that as a reason for believing that the term "any alien" in section 273 (a) was not intended to be all-inclusive. That decision does not, of course, constitute a determination that alien stowaways are not within the scope of this statutory provision since the only question decided was that alien crewmen were not within its purview. As we indicated in that decision, the purpose and intent of the particular statutory provision must be considered.
The district director stated, in his order, that he did not believe that Congress intended to absolve from liability operators of vessels who took inadequate precautions to prevent stowaways from boarding vessels bound for the United States; that section 273 (d) of the Immigration and Nationality Act was of no aid in cases such as the instant one; and that the Government's efforts to enforce the immigration laws would be frustrated unless section 273 (a) were deemed applicable. We need not express an opinion as to the desirability, from the Government's standpoint, of applying section 273 (a) to alien stowaways inasmuch as this is not a proper criterion in interpreting legislation. In addition, the provisions of the Immigration and Nationality Act relating to the imposition of fines, being penal in nature, must be strictly construed ( Federal Communications Commission v. American Broadcasting Co. Inc., 347 U.S. 284, 296 (1954)).
The predecessor statutory provision was section 16 (a) of the Immigration Act of 1924 (8 U.S.C. 216 (a), 1946 ed.) and its language is almost identical with the present provision except that the 1924 act employed "immigrant" instead of "alien." It was suggested by the Service in the instant case that one of the reasons for the change was to include stowaways within 8 U.S.C. 1323 (a). We believe that the purpose of the change from "immigrant" to "any alien" was to extend the carrier's liability to include nonimmigrant passengers.
When the provisions of subsections (a), (b), (c), and (d) of section 273 of the Immigration and Nationality Act are considered together, it is our opinion that the first 3 subsections relate to aliens who are passengers on the vessel and that subsection (d) provides the specific and sole procedure with respect to alien stowaways. Although an alien stowaway is not a nonimmigrant and, therefore, he would be technically classifiable as an immigrant who requires an immigrant visa, one does not in common parlance consider that a stowaway is an alien requiring a visa. Even if a stowaway were in possession of an unexpired visa, he would still be excludable under 8 U.S.C. 1182 (a) (18) by reason of being a stowaway.
We believe that our view that section 273 (a) of the Immigration and Nationality Act relates only to alien passengers finds corroboration in the fact that section 273 (b), which set forth the penalty for violating section 273 (a), provides that there shall be paid $1,000 for each alien so brought and, except in the case of an alien who is admitted, " in addition, a sum equal to that paid by such alien for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, such latter sum to be delivered by the collector of customs to the alien on whose account the assessment is made." By using the words "and, * * * in addition," there is a clear indication that Congress contemplated that in every case within the purview of section 273 (a) the alien who was brought to the United States would be a passenger who had paid his transportation to this country, and this is further borne out by the other language in this statutory provision which we have underscored. We think it is clear, therefore, that section 273 (a) was not intended to apply to a stowaway who has not purchased a ticket nor paid for his transportation.
Subsection (c) of section 273 of the Immigration and Nationality Act permits the fine to be remitted or refunded if it is established that, prior to departure from the last foreign port, it was not known, and could not have been ascertained by the exercise of reasonable diligence, "that the individual transported was an alien and that a visa was required." It was contended by the Service that, if subsection (a) of section 273 is held applicable to the bringing of a stowaway who is not in possession of a visa, this will not impose an absolute liability on the carrier, and that the fine may be remitted or refunded under subsection (c) if the carrier exercised reasonable diligence to prevent the stowaway from boarding the vessel. However, we do not believe the language of subsection (c) is susceptible to that interpretation. As a matter of fact, the language of that subsection strengthens our conviction that subsection (a) does not apply to stowaways. In order to be in a position to ascertain, prior to departure from the last foreign port, whether a particular individual was an alien who was required to have a visa, it would at least be necessary for the master to know then that a stowaway was on board. Yet if he knew that fact prior to departure, it is unlikely that he would transport the stowaway.
Subsection (d) of section 273 of the Immigration and Nationality Act sets up a specific procedure for dealing with alien stowaways and provides a fine of $1,000 for (1) failure to detain the alien stowaway on board until the stowaway has been inspected by an immigration officer, (2) failure to detain the stowaway on board after inspection if ordered to do so, or (3) failure to deport the stowaway on the vessel on which he arrived or on another vessel. This subsection also specifies that the provisions of section 235, relative to holding aliens for examination before special inquiry officers, and the right of appeal provided for in section 236 shall not apply to aliens who arrive as stowaways and that, with certain exceptions, alien stowaways shall not be permitted to land in the United States. In view of the incorporation of these latter matters, which are entirely unconnected with the imposition of fines, we think subsection (d) was intended to treat completely the subject of stowaways.
The order of the district director dated February 26, 1957, refers to the fact that originally there had been a proposed subsection (e) in section 273 of the bill which became the Immigration and Nationality Act. It was stated that this provision would have removed any doubt as to the liability of a carrier in such cases as the present but that the district director did not consider the failure of Congress to enact this provision as controlling.
S. 716, 82d Congress, 1st Session, was introduced in the Senate on January 29, 1951. In that bill, section 273 (d) contained language almost identical with that now contained in section 273 (d) of the Immigration and Nationality Act insofar as concerned the three matters mentioned above, that is, (1) failure to detain an alien stowaway for immigration inspection, (2) failure to detain after inspection, and (3) failure to deport the stowaway. However, there was an additional clause preceding these three which would have made liable to the $1,000 fine the owner, etc., "who fails to discover and present any alien stowaway on board to an immigration officer for inspection." In that bill, section 273 (e) provided, in part, "The owner * * * who discovers and presents any alien stowaway on board to an immigration officer for inspection shall pay * * * the sum of $500 for each such alien stowaway aboard such vessel or aircraft." There was a provision for mitigation of the penalty to not less than $200.
S. 2550, 82d Congress, 2d Session, was introduced in the Senate on January 29, 1952. In that bill the clause quoted above in section 273 (d), concerning failure to discover an alien stowaway, had been eliminated and section 273 (d) contained language identical with that now appearing in section 273 (d) of the Immigration and Nationality Act. H.R. 5678, 82d Congress, 2d Session, was introduced in the House of Representatives on October 9, 1951, and section 273 (d) thereof was also identical with present section 273 (d). In S. 2550 and H.R. 5678, section 273 (e) provided, in part, as follows:
(e) The owner, * * * of any vessel or aircraft arriving in the United States from any place outside thereof which has on board any alien stowaway shall pay * * * the sum of $500 for each such alien stowaway aboard such vessel or aircraft. * * * The Attorney General may, upon application in writing therefor, remit, refund, or mitigate such fine or penalty for any such violation for which such penalty is imposed, upon proof satisfactory to him that the presence of the alien stowaway aboard the vessel or aircraft at the time of its embarkation from the last port outside the United States was not known to and could not have been ascertained by the exercise of reasonable diligence by the owner, * * * of the vessel or aircraft aboard which such stowaway arrived in the United States.
In Senate Report No. 1137 (pp. 36-37) which accompanied S. 2550 and in House Report No. 1365 (p. 68) which accompanied H.R. 5678, appear statements that section 273 (a) provides an administrative fine upon transportation companies for bringing an alien who does not have an unexpired visa if a visa was required. Immediately thereafter appear comments concerning section 273 (d) and section 273 (e) which comments are similar in both reports except that the reference to S. 716 does not appear in the House Report. The statement in the Senate Report is as follows:
Section 273 (d) and section 273 (e) add new administrative penalties in connection with stowaways. Section 273 (d) provides a penalty for failure to detain a stowaway on board a vessel or aircraft prior to inspection, or after inspection if there is an order to do so. Under S. 716, the fine was also prescribed for failure on the part of an owner, charterer, agent, consignee, commanding officer, or master to discover a stowaway on board a vessel or aircraft, but that part of the offense has been omitted in the instant bill. Section 273 (e) imposes a penalty of $500 on a carrier which has on board a stowaway upon arrival at a port of entry, which penalty may be mitigated under certain conditions.
In each of the bills, that is, S. 716, S. 2550, and H.R. 5678, section 273 (a) employed the words "any alien" as they now appear in that section of the Immigration and Nationality Act. Hence, if the framers of the legislation had believed that the words "any alien" in section 273 (a) would comprehend the bringing of an alien stowaway, there would have been no necessity for covering the same matter in section 273 (e).
In the instant case the master of the vessel failed to discover the stowaways, and if S. 716 had become law the carrier would have been liable to a fine of $1,000 for each alien stowaway because they were not discovered prior to the immigration inspection. The statement quoted above reading, "that part of the offense has been omitted in the instant bill" shows that the action was not taken because section 273 (a) already provided a remedy, but rather that this part of the offense was being completely eliminated from the act. The statement referred, of course, to a provision of section 273 (d), but we believe it is equally indicative that when section 273 (e) was deleted, it was done for the purpose of removing the remainder of the offense from the act and not on the assumption that section 273 (a) already covered the situation. The fact that section 273 (e) provided for a fine of only $500, whereas section 273 (a) specifies a fine of $1,000, is a further circumstance which militates against a construction that section 273 (e) was deleted as being unnecessary.
It is significant that, in providing for remission of mitigation of the fine under contemplated section 273 (e), the proof required was "that the presence of the alien stowaway aboard the vessel or aircraft at the time of its embarkation from the last port outside the United States was not known to and could not have been ascertained by the exercise of reasonable diligence by the owner, * * *." The specific language which was used when stowaways were contemplated, as contrasted with the general language employed in section 273 (a), is a further indication that subsection (a) does not apply to stowaways.
We believe that the elimination of the provision in section 273 (d) concerning failure to discover a stowaway and the subsequent deletion of section 273 (e) are evidence of Congressional intent that a fine was not to be imposed merely because a vessel arrived with a stowaway on board. We find nothing in the various reports or proceedings of Congress which would indicate an assumption on the part of Congress that section 273 (a) was applicable to the bringing of stowaways to the United States. For the reasons indicated, it is our considered opinion that subsections (a) and (b) of section 273 of the Immigration and Nationality Act do not authorize the imposition of a fine for bringing to the United States an alien stowaway who does not have an unexpired visa and that, in such cases, the exclusive remedy is that specified in section 273 (d). Accordingly, the appeal will be sustained.
Order: It is ordered that the appeal be sustained and that no fine be imposed.