56090/873
Decided by the Board November 13, 1942. Approved by the Attorney General January 16, 1943.
Seamen — Section 19 (c), Immigration Act of 1917, as amended — Discretionary relief.
An exception will be made in the case of an alien seaman employed ashore in essential work who is irreplaceable, to the rule of Matter of D---- (56111/462) that alien seamen who enter the United States subsequent to September 1, 1939, and who have no family ties in the United States will not be granted discretionary relief under section 19(c) of the Immigration Act of 1917, as amended.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa.
Lodged: Act of 1924 — Remained longer than permitted.
Mr. George E. Tolman, of Washington, D.C., for the respondent.
Mr. Edward J. Ward, Board attorney-examiner.
BEFORE THE BOARD
The respondent testified that he is a native and citizen of Denmark, and that he last arrived in the United States at San Pedro, Calif., about March 1, 1940, on the M.S. Lexa Maersk, on which vessel he was employed as guarantee engineer, and that he was discharged at the port of Baltimore, Md., about May 28, 1940. He testified further that it was not his intention to remain permanently in the United States at the time of his last entry, and that he was aware that he could not legally remain for longer than 60 days.
A certificate of arrival, introduced into the record, shows the date of that arrival at San Pedro to have been March 9, 1940, and the date of the respondent's discharge at Baltimore to have been June 13, 1940.
FINDINGS OF FACT: Upon the basis of all the evidence it is found:
(1) That the respondent is an alien, native and citizen of Denmark;
(2) That he last arrived in the United States at San Pedro, Calif., on March 9, 1940, ex-M.S. Lexa Maersk as a member of the crew and was discharged at Baltimore, Md., June 13, 1940;
(3) That he had no intention to remain permanently in the United States at the time of entry;
(4) That under the regulations then in effect he was permitted to remain ashore for a period not exceeding 60 days;
(5) That he has remained for a longer time than 60 days.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924, the respondent is not deportable on the ground that he entered as an immigrant not in possession of an unexpired immigration visa;
(2) That under sections 14 and 15 of the Immigration Act of 1924, he is deportable on the ground that he has remained in the United States for a longer time than permitted under the said act or regulations made thereunder;
(3) That under section 20 of the Immigration Act of 1917, he is deportable to Denmark at Government expense.
OTHER FACTORS: The respondent has made formal application for permission to depart from the United States at his own expense in lieu of deportation and for the additional privilege of preexamination. He has no close relative in the United States nor is there any one in this country dependent upon him for support. There is nothing in the record to indicate that he is not a person of good moral character. But, on the other hand, there is nothing to indicate that he is physically disabled or otherwise disqualified from returning to his calling as a seaman. In accordance with the rule of the decision by the Attorney General in the case of C---- D---- (56111/462) [ see page 338, this volume], rendered June 11, 1942, since the alien arrived in the capacity of a seaman subsequent to September 1, 1939, it would seem that we must order his deportation unless another factor than physical disability or the needs of dependents be found to justify and require that he be regarded as an exception from the rule of the D---- decision and that he be not deported.
On April 29, 1942, under the policy then in effect concerning alien seamen employed ashore in industries beneficial to the war effort, we directed that an order of deportation not be entered at that time but that the alien be required to depart from the United States without expense to the Government to any country of his choice within 30 days after notification of decision, on consent of surety.
On May 29, 1942, W.H. Ramberg on behalf of his firm, which employs the respondent and 42 other alien seamen, filed a petition that these 43 men be permitted to remain in the United States to pursue their occupation or, in the alternative, that they be permitted the privilege of preexamination, and more particularly that either of these privileges be granted to this respondent.
On July 8, 1942, we found that he is 1 of 43 aliens involved in deportation proceedings who have been released under bond and are employed by H.W. Ramberg, Inc., of Brooklyn, N.Y., a firm engaged in ship repair, specializing in the replacement and repair of parts of foreign-built Diesel motors.
In the meantime, however, on June 11, 1942, the Attorney General had ruled in the case of C---- D---- that only physical disability or the requirement of supporting near relatives in the United States should exempt alien seamen who had arrived subsequent to September 1, 1939, from being ordered deported with a view to their being returned to sea. In view of that ruling by the Attorney General, we found on July 8, 1942, that, if there are not shown to be very substantial and valid reasons why an exception should be made in the case of this respondent and the other 42 aliens formerly employed as seamen and now employed by H.W. Ramberg, Inc., we had no alternative to ordering deportation in these cases.
Mr. Ramberg stated in his petition that this respondent has been employed by his firm since June 1940 as a foreman; that he is a highly skilled Diesel expert, having gained his experience at the shops of Burmeister Wain, Copenhagen, Denmark, where he was employed for 18 years; that he was sailing for years as a guarantee engineer, it being his duty to check new Diesel installations on the first voyage, and that he is a key man in the Ramberg organization. Mr. Ramberg stated further that his firm has taken on the job of supplying ships with spare parts for Diesel marine motors originally built in Norway, Sweden, and Denmark, and for which spare parts can no longer be obtained in those countries due to the war. He stated that the activities of his firm are 100 percent war work, which is now being done for the United States Navy, Maritime Commission, and Army Transport Service, and for the British Ministry of Shipping, and the Norwegian Shipping and Trade Mission.
He gave examples of the overhauling and building tasks ordered or requested by these agencies which furnish the basis of his argument that these 43 highly skilled Diesel-engine mechanics are indispensable to the carrying on of the war-production work of his firm. In support of his argument he submitted a letter addressed to him by W.O. Crabtree, the district manager for the Bureau of Field Operations in the New York area of the War Production Board. This letter stated that "the War Production Board will sustain you in any legitimate attempt to retain the services of these skilled aliens of friendly countries, including Denmark, Norway, and Sweden." He also submitted a letter from C.H. Kennerly, assistant district marine surveyor of the Maintenance Division of the United States Maritime Commission, with regard to this respondent and the other 42 similarly employed aliens in the Ramberg plant, stating that in the opinion of the Division of Maintenance "it is extremely necessary and essential that the certain employees in question now working for the above-mentioned contractor be retained whenever possible, if prevailing conditions relative to their status is in order."
Mr. Ramberg also stated that "if it becomes necessary," his firm would like "an opportunity to appear before the Board of Review in Washington." However, we did not think that an argument setting forth the facts merely as seen by this employing firm was what was needed for finding a correct answer to the problem raised in this case. Instead, we believed that a disinterested investigation should be conducted by the district director at New York to obtain in cooperation with the Ramberg employers and the New York field office representatives of the War Production Board, the United States Maritime Commission, and the United States Employment Service facts as to the four following matters:
1. The degree of special and exceptional skill of each of the 43 aliens in question that qualifies him to do essential work directly beneficial to the war effort;
2. The facts as to the possibility of immediately replacing all or any of these aliens by approximately equally skilled workmen if they or any of them were ordered deported;
3. The possibility of finding and training within a reasonable time other mechanics to replace all or any of these aliens if they were allowed 30 or 60 or 90 days to assist in such training before they are required to leave the country;
4. The facts as to whether there is a present or immediately prospective need of highly skilled Diesel engineers, such as these aliens appear to be, to serve on Diesel-motored ships at sea, for which employment these aliens should be made available.
We stated that with the factual results of such an investigation promptly obtained, we would be in a position to consider the evidence and decide whether to submit to the Attorney General the question whether in his opinion an exception from the ruling of the D---- decision should be made in the case of this respondent and the other 42 aliens similarly employed by the H.W. Ramberg Corporation, and we directed that the district director at New York immediately conduct such an investigation.
We have now received the report of the special detail of inspectors which shows that they have made a very thorough and comprehensive inquiry and have received the cooperation not only of the employers in the Ramberg plant but also of responsible representatives of the War Production Board, the United States Maritime Commission, the United States Employment Service, the United States Army Transportation Service, and of the Marine Engineering Division of the United States Navy and have also interviewed official representatives of the British Ministry of Shipping and Norwegian Shipping and Trade Mission.
The investigation comprehended a detailed inquiry covering 46 aliens employed in the Ramberg plant, 3 others in addition to the 43 included in the group, as to the qualifications of whom the making of the investigation was directed. In the words of the report of this investigation, it discloses:
1. That all of the 46 aliens, with the exception of the switchboard operator, H---- A----, are specially qualified to do essential work being done by the Ramberg Company, through technical training and/or previous experience in machine shops and ship yards in Norway, Denmark, and Sweden, in addition to experience gained while employed on foreign Diesel-engine vessels.
2. That it is not possible to replace any of these aliens immediately by equally skilled workmen, with the exception of the switchboard operator, H---- A----.
3. That it is not possible to obtain and train other mechanics to replace the 45 aliens. A----, the Ramberg Company agrees, could be easily replaced.
4. That at this time there is a surplus of Diesel engineers awaiting vessels, so that the 45 aliens in question are not needed for service at sea. [Italics supplied.]
Counsel appears to argue that by reason of the heavy loss of United States ships sunk by Axis submarines, the conditions are now so changed with respect of the demand for seamen that a reversal of the policy established by the D---- decision is now unwarranted. We do not think that the report of this investigation justifies a reversal of policy. We are of the opinion, however, that the report of this investigation, showing, as it does, that the deportation of these 46 aliens, excepting H---- A----, and particularly such a key man as the respondent, would not only have the result of making impossible the continued war effort service of the Ramberg plant but, in the words of the Norwegian Shipping and Trade Commission, "would result in tying up numerous United States vessels which are so badly needed at this time." We are of the further opinion that this does require that this respondent and all but 1 of the 46 aliens employed in the Ramberg plant be deemed to be so irreplaceable and indispensable for the war effort in their work ashore that in their cases exception should be made to the application of the rule of the D---- decision.
Since we propose such a determination in the instant case and a similar determination in the cases of other deportable aliens with regard to whom a clear showing of indispensability to the war effort and greater need for service ashore than at sea is made, our decision should be certified to the Attorney General for review.
It is to be observed that in the letter of transmittal of the present record, under date of September 2, 1942, the Immigration and Naturalization Service makes no adverse recommendation, so that we may assume the Service is not opposed to a favorable decision in this case.
ORDER: It is directed that an order of deportation not be entered at this time, but that the alien be required to depart from the United States without expense to the Government, to any country of his choice, within 90 days after notification of decision, on consent of surety. Departure in accordance with the foregoing will be deemed sufficient to cancel the outstanding delivery bond.
It is further ordered, That preexamination be authorized conditioned upon approval by the Department of State of the alien's preliminary application for an immigration visa.
BEFORE THE ATTORNEY GENERAL
The foregoing decision and order of the Board were certified to and approved by the Attorney General.