56160/395.
Decided by Board June 13, 1946.
Fine — Alien seaman, applying as immigrant — Section 16, Immigration Act of 1924.
A fine under the provisions of section 16 of the Immigration Act of 1924 has not been incurred where the responsible parties did not know and could not have ascertained by the exercise of reasonable diligence that the alien seaman involved was an immigrant not in possession of an immigration visa, such alien seaman not being returned to the United States as a passenger, but one properly signed on the ship's articles and employed as a member of the crew, who, upon the vessel's arrival, applied for admission to resume permanent residence here.
BEFORE THE BOARD
Discussion: The agents for the S.S. Australind have filed an appeal from the order of the Commissioner imposing fine of $1,000 under section 16, Immigration Act of 1924, for bringing to the United States the alien crew member J---- B----, who, upon arrival at the port of New York, April 9, 1941, applied for admission for permanent residence and was excluded on the ground pertinent hereto, that he was an immigrant not in possession of an immigration visa.
Section 16, Immigration Act of 1924, pursuant to which fine was imposed in the case appealed, makes it unlawful for the persons named therein to bring to the United States by water from any place outside thereof (other than foreign contiguous territory) (1) any immigrant who does not have an unexpired immigration visa.
Subdivision ( b) thereof provides that the fine of $1,000 shall not be refunded unless it appears to the satisfaction of the Attorney General that such person * * * prior to departure of the vessel from the last port outside of the United States, did not know, and could not have ascertained by the exercise of reasonable diligence that the individual transported was an immigrant.
In addition to the facts already stated, the record discloses that the alien entered the United States at Beaumont, Tex., in 1920, as a visitor and remained here until October 18, 1940, when he departed from the port of New York as a member of the crew of the S.S. Uruguay, bound for Trinidad; that he applied for an immigration visa at the American consulate there the following month, which was refused him because he was found to be a member of the East Indian race. Thereafter he signed as a member of the crew on the S.S. Australind, the vessel involved in the present fine proceedings, and proceeded to the United States.
Upon arrival, the alien applied for admission to resume permanent residence and was excluded by a Board of Special Inquiry. He appealed from the action of the Board, as affirmed by this Board June 14, 1941. However, the alien was ordered paroled to enable him to make application for a certificate of registry, such application having been subsequently denied.
The appellant reaffirms previous contentions that; (1) Since the alien arrived as a bona fide seaman and not as an immigrant, and (2) since neither the master nor the agents knew or could have ascertained by the exercise of reasonable diligence that the alien was an immigrant, fine has not accrued.
The foregoing contentions, as indicated, were rejected by the Commissioner on the grounds that, (1) "It has been determined that when an alien seaman applies for admission as an immigrant, the case becomes the same as that of any other alien applying for admission as an immigrant" (citing Matter of M/S "Harry G. Seidel" 56093/156 (April 2, 1943)), and (2) "the record fails to indicate that the respondent exercised diligence required by the statute to ascertain, prior to the departure of the vessel from the last port outside the United States, whether the alien was an immigrant."
We do not agree with the reasoning and conclusion in this case. It is true, of course, that an alien seaman applying for admission for permanent residence must satisfy the general requirements applicable to aliens generally, but this is only for thee purpose of determining their personal qualifications for admission under the immigration laws and is by no means decisive of the question relating to the imposition of fines merely because admission is refused, and as to that issue, the Matter of M/S "Harry G. Seidel" cited by the Commissioner, is not in point and therefore has no application to the factual issue presented here.
It would seem that where a seaman is suspected of being mala fides, then properly he is to be ordered detained on board in accordance with section 20 of the Immigration Act of 1924. Again, where a seaman is involved, the position that he is to be treated as any other alien for fine purposes gives rise to the application of specific statutes applicable to the ordinary alien immigrant as distinguished from such a person who is also a seaman properly signed on the ship's articles.
Section 1 of the Immigration Act of 1917 provides that the term "seaman" as used in this act shall include every person signed on the ship's articles and employed thereon in any capacity on board any vessel arriving in the United States from any foreign port or place.
Section 25, Immigration Act of 1924, provides that the provisions of this act are in addition to and not in substitution of the provisions of the immigration laws, and shall be enforced as part of such laws, etc.
Section 3 of the Immigration Act of 1924 provides that when used in this Act the term "immigrant" means any alien departing from any place outside the United States destined to the United States, except * * * (5) a bona fide alien seaman serving as such on a vessel arriving at a port of the United States and seeking to enter temporarily, etc.
Section 19 of the Immigration Act of 1924 provides that "No alien seaman excluded from admission into the United States under the immigration laws, and employed on board any vessel arriving in the United States from any place outside thereof, shall be permitted to land in the United States, except temporarily for medical treatment or pursuant to such regulations as the Attorney General may prescribe for the ultimate departure, removal or deportation of such alien from the United States.
Section 8, Immigration Act of 1917, makes it a crime to bring an inadmissible alien to the United States for the purpose of enabling him to gain permanent admission. It should be noted, however, that it is no offense to bring a bona fide alien seaman to the United States under this section, or to permit him to land pursuant to his calling (sec. 33, Immigration Act of 1917). The offense is not in bringing the seaman to our shores on a vessel, but in allowing him to land without examination. If the master knows that the seaman is about to land for the purpose of seeking permanent admission, he is required to detain him on board pending examination by the immigration authorities, pursuant to the provisions of section 32, Immigration Act of 1917, as amended by section 20 of the Immigration Act of 1924. The crime arises when the seaman, whether admissible or inadmissible, is permitted to land without compliance with the statute.
Section 31 of the 1917 act provides, "That any person, including the owner, agent, consignee, or master of any vessel arriving in the United States from any foreign port or place, who shall knowingly sign on the ship's articles, or bring to the United States as one of the crew of such vessel, any alien, with intent to permit such alien to land in the United States in violation of the laws and treaties of the United States regulating the immigration of aliens, or who shall falsely and knowingly represent to the immigration authorities at the port of arrival that any such alien is a bona fide member of the crew, shall be liable to a penalty not to exceed $5,000 * * *"
But we need not rest our action on the legal aspect discussed in the foregoing, since we find there is another clear ground which requires a holding that fine has not accrued. That involves the second contention advanced by the appellant. The alien here was not being returned to the United States as a passenger.
Cf. U.S. ex rel. Rios v. Day, 24 F. (2d) 654 (C.C.A., New York, 1928, cert. den., 277 U.S. 604), holding section 144, 8 U.S.C.A., inapplicable to seaman. Pan-American Petroleum and Transportation Co. v. United States, 28 F. (2d) 386, involving section 16, act of 1924 in which the court held an employer returning alien seaman in accord with contract not liable for fine for bringing an "immigrant without immigration visa." (Alien brought in as passenger with declared intention of remaining here, but did not have a visa.)
He was part of the vessel, and not apart from it. The alien being in fact a seaman, he having been properly signed on the ship's articles as a member of the crew, it is difficult to hold that the responsible parties could have ascertained by the exercise of reasonable diligence that he was an immigrant. A contrary holding would require the institution of fine proceedings under section 16 of the 1924 Act in the case of all seamen who remained longer than permitted and who upon apprehension testify they had formulated an intention prior to arrival of remaining permanently in the United States. Such a view could not be seriously maintained.
Taylor v. United States, 207 U.S. 120; Osaka Shoshen Kaisha Line v. United States, 300 U.S. 98; The Wilson v. United States, C.C.A. 1 Brock, 423, Fed. Cas. No. 17, 846.
Matter of S.S. "Poeleau Bras," 56088/355 (Oct. 26, 1942); Matter of S.S. "Samaria," 56048/151 (Feb. 18, 1943); Svenska Amerika Line v. Elting, 46 F. (2) 178.
We must, therefore, conclude that since in this case the responsible parties did not know and could not have ascertained by the exercise of reasonable diligence that the alien seaman involved was an immigrant not in possession of an immigration visa, liability to fine has not accrued. The appeal will be sustained and the case returned to the Commissioner for further consideration.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the S.S. Australind arrived at the port of New York April 9, 1941, from Havana, Cuba having on board as a member of the crew the alien, J---- B----;
(2) That the alien upon arrival applied for admission to the United States for permanent residence;
(3) That the alien was not in possession of an immigration visa;
(4) That the alien was excluded by a Board of Special Inquiry because he was not in possession of an immigration visa and other grounds (not pertinent hereto);
(5) That the responsible parties did not know and could not have ascertained by reasonable diligence that the seaman was an immigrant.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 16 of the Immigration Act of 1924, liability to fine has not accrued.Order: It is ordered that the appeal be sustained and the case returned to the Commissioner for further consideration in accordance with the foregoing.