56071/511
Decided by the Board June 10, 1941.
Admission from foreign contiguous territory — Section 23, Immigration Act of 1917 and section 17, Immigration Act of 1924 — Seamen.
An alien applying for admission to the United States from foreign contiguous territory is not excludable under section 23 of the Immigration Act of 1917 and section 17 of the Immigration Act of 1924 when it appears that he entered such contiguous territory as a bona fide seaman.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Acts of 1917 and 1924 — Brought to Canada by transportation company not signatory to agreement.
Miss Margaret V. Lybolt, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant applied at Yarmouth, Nova Scotia, on May 5, 1941, for admission to the United States for permanent residence. The board of special inquiry found him inadmissible under section 17 of the act of 1924 and section 23 of the act of 1917, and excluded him on the grounds above stated. From this action he appeals.
DISCUSSION: Appellant is a native and citizen of Denmark, aged 20, single, seaman. He presents a Danish passport issued by the Chief of Police, Odder, Denmark, March 27, 1937, valid until March 27, 1942, and a nonquota immigration visa issued under section 4 (a) of the act of 1924 at the American Consulate at Halifax, Nova Scotia, on April 7, 1941, valid to August 6, 1941. Appellant is destined to his mother in Greenwich, Conn.
Appellant testifies that he arrived in Canada as a member of the crew of the S.S. Mano at Sydney, Nova Scotia, September 26, 1940, and that he deserted ship at the request of his mother who was in Sydney to meet him. According to his testimony his mother, a naturalized citizen of the United States, is living in Greenwich, Conn., with her second husband, appellant's stepfather.
A letter from the Ministry of Shipping in Sydney, Nova Scotia, states that the owner of the S.S. Mano is the Springwell Shipping Co., Ltd., of London, England. Attached to the record is a letter from the immigrant inspector at Halifax showing that the Springwell Shipping Co. has not signed the agreement as required by section 17 of the act of 1924 and section 23 of the act of 1917, and that the local agent for the company will not attempt to obtain an authorization to sign.
Section 23 of the act of 1917 and section 17 of the act of 1924 provide for the exclusion of aliens applying for admission from contiguous territory unless they prove that they were "brought to such territory" by a transportation company that had complied with all the requirements of the 1917 and 1924 acts respectively, or that such aliens had resided in the contiguous territory for 2 years prior to their application for admission to the United States. Whether a seaman "is brought" by the vessel on which he is employed was decided in the negative by the Supreme Court in Taylor v. United States, 207 U.S. 120. In that case the court was construing section 18 of the Act of March 3, 1903, which provided a penalty for an officer in charge of a vessel "bringing an alien to the United States" if he did not adopt due precautions to prevent the landing of any such alien at any time or place other than that designated by the immigration officers. The court held that section 18 did not apply to the ordinary case of a sailor deserting while on shore leave. Mr. Justice Holmes, in writing the opinion stated, "`Bringing to the United States', taken literally and nicely, means, as a similar phrase in section 18 plainly means, transporting with intent to leave in the United States and for the sake of transport — not transporting with intent to carry back, and merely as incident to employment on the instrument of transport."
We believe the words "brought to such territory" in section 23 of the act of 1917 and section 17 of the act of 1924 should be subject to a similar construction. Accordingly, it has been the established policy of this Board to hold that these sections have no application to bona fide alien seamen seeking to enter the United States from contiguous territory. That these sections are limited in their application to alien passengers is further indicated by their inclusion of the statement, "In prescribing rules and regulations and making contracts for the entry and inspection of aliens applying for admission from or through foreign contiguous territory, due care shall be exercised to avoid any discriminatory action in favor of transportation companies transporting to such territory aliens destined to the United States." Bona fide seamen (that is, seamen coming to contiguous territory with the intention of departing with their vessels, including seamen who come with such intention and thereafter decide to desert) obviously cannot be described as "aliens destined to the United States." From the appellant's testimony that he has previously touched at United States ports on board a ship and that he was a member of the crew of the S.S. Mano for several months before landing in Canada (March to September 1940), we concluded that he was a bona fide seaman and not inadmissible under section 17 of the act of 1924 and section 23 of the act of 1917. It is believed, therefore, that the appeal should be sustained and appellant's admission for permanent residence authorized.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That appellant is an alien, a native and citizen of Denmark;
(2) That appellant arrived in Canada in September 1940, as a deserter from the S.S. Mano;
(3) That the transportation company owning the S.S. Mano is not signatory to the agreement showing that it has complied with all requirements of the act of 1917 and the act of 1924;
(4) That appellant is applying for admission from Canada for permanent residence.CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 17 of the act of 1924, appellant is not inadmissible on the ground that he is applying for admission from contiguous territory to which he was brought by a transportation company that is not signatory to an agreement showing that it has complied with all the requirements of that act;
(2) That under section 23 of the act of 1917, appellant is not inadmissible on the ground that he is applying for admission from contiguous territory to which he was brought by a transportation company that is not signatory to an agreement showing that it has complied with all the requirements of that act.OTHER FACTORS: Appellant is in possession of affidavits proving that his mother is married to H---- S----, appellant's stepfather, a chauffeur with permanent employment whose circumstances will enable him to maintain appellant until he is able to find work. He and appellant's mother have furnished an affidavit showing that they are willing to guarantee this assistance.
ORDER: It is ordered that the appeal be sustained and the appellant admitted for permanent residence.