F-500-1526.
Decided by Board November 16, 1954.
Fine — Section 273 of Immigration and Nationality Act — Liability incurred even though alien never intended to enter United States — Inspection, section 235 (a) of the act — Required of all aliens, including those who do not intend to leave ship.
(1) A transportation line is liable for fine under section 273 of the Immigration and Nationality Act for unlawfully bringing to the United States an alien not in possession of a visa, even though such alien is in transit from one foreign country to another and does not intend to leave the vessel on which he arrived while such vessel is in a United States port.
(2) Under section 235 (a) of the Immigration and Nationality Act, all aliens, including those in transit who do not intend to leave the ship while stopping at ports in the United States, are required to present themselves for inspection by an immigration officer.
IN RE: M/S. Amagisan Maru which vessel arrived at Seattle, Washington, on May 1, 1953, from Japan, via Vancouver, British Columbia, Canada.
BEFORE THE BOARD
Discussion: This matter is before us by reason of an appeal from the decision of the District Director of Immigration and Naturalization, Seattle, Washington, bearing date July 30, 1953, wherein fine in the amount of $1,000 was imposed upon Messrs. Burchard Fisken, Inc., Exchange Building, Seattle, Washington, agents for the vessel as aforesaid which vessel arrived at Seattle, Washington, from the foreign ports or places indicated on May 1, 1953. Passenger involved N---- S----.
The specific violation complained of is bringing to the United States from the place outside thereof the alien N---- S---- who was not in possession of an unexpired visa, such visa being required by the act or regulations issued thereunder.
Section 273 of the Immigration and Nationality Act ( 8 U.S.C. 1323) provides:
(a) It shall be unlawful for any person, including any transportation company, or the owner, master, commanding officer, agent, charterer, or consignee of any vessel * * * to bring to the United States from any place outside thereof * * * any alien who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder.
(b) If it appears to the satisfaction of the Attorney General that any alien has been so brought, such person, or transportation company, or the master, commanding officer, agent, owner, charterer, or consignee of any such vessel * * * shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each alien so brought * * *.
The evidence of record shows that N---- S---- is a citizen of Japan. He applied for transportation from Japan to Venezuela and approximately a week before the ship sailed he was informed that the ship would be calling at a United States port but that he figured he did not have sufficient time in which to secure a visa from the American consular service.
It is contended by counsel that in the particular circumstances here involved section 273 was not violated for two reasons: (a) Within the true intent and the clear spirit of its prohibition, said vessel and those responsible therefor did not bring to the United States the said alien; (b) By the act as a whole, a valid unexpired United States visa was not required of or for said alien because he was not an immigrant, because he had never applied for entry into this country, because he never intended to enter here and because he never did so in any legal sense.
Section 238 (d) of the Immigration and Nationality Act ( 8 U.S.C. 1228) provides:
The Attorney General shall have power to enter into contracts including bonding agreements with transportation lines to guarantee the passage through the United States in immediate and continuous transit of aliens destined to foreign countries. Notwithstanding any other provision of this Act, such aliens may not have their classification changed under section 248.
8 C.F.R. 212.3 (f), in effect at the time of the alien's arrival and departure on May 1, 1953, provides in part, as follows:
Nonimmigrants not required to present passports, visas, or border-crossing identification cards.
The provisions of section 212 (a) (26) of the Immigration and Nationality Act and of this chapter relating to the requirement of passports, visas and border-crossing identification cards for nonimmigrants, have been waived by the Secretary of State and the Attorney General, acting jointly in pursuance of the authority contained in section 212 (d) (4) of the Immigration and Nationality Act, in the cases of aliens * * * who are otherwise qualified for admission as nonimmigrants under the applicable provisions of the immigration laws and who fall within any of the following categories:
* * * * * * *
(f) An alien not within the purview of paragraph (e) of this subsection who is being transported in immediate and continuous transit through the United States without stopover from one foreign place to another in accordance with the terms of a contract, including a bonding agreement, entered into by a transportation line and the Attorney General under the provisions of section 238 (d) of the Immigration and Nationality Act, to insure such immediate and continuous transit through, and departure from, the United States en route to a specifically designated foreign country: Provided, That such alien is in possession of a travel document which is valid for his entry into a foreign country for a period of not less than 60 days after date of immediate and continuous transit through the United States: And provided further, That at all times such alien is not aboard an aircraft which is in flight through the United States he shall be in the custody of an officer of the United States * * *.
The undisputed facts are that this alien passenger engaged direct transportation from Japan to Venezuela on the vessel as aforesaid which was then not scheduled to call at any United States port, until cargo was later booked for discharge at Seattle, Washington, where the vessel arrived and departed on the first of May 1953, with the alien aboard, the alien never having any purpose of coming to or entering the United States, and only having left the vessel temporarily in obedience to official direction of the Immigration and Naturalization Service. [Emphasis supplied.]
Section 235 (a) of the Immigration and Nationality Act ( 8 U.S.C. 1225) provides in part as follows:
The inspection, other than the physical and mental examination, of aliens (including alien crewmen) seeking admission or readmission to, or the privilege of passing through the United States shall be conducted by immigration officers, except as otherwise provided in regard to special inquiry officers. All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe * * *.
Counsel, in behalf of the agents and the owners, asserts that "under the particular circumstances involved no visa was required of the alien."
The attorney further avers that while the act and the regulations contain provisions requiring a visa of aliens in specified special categories, they do not contain provisions positively and affirmatively requiring either a visa of all aliens in general or of aliens in the particular class presently involved, to wit: An alien passenger engaging transportation on a continuous, through voyage from one foreign port to another foreign port aboard a vessel then not scheduled to call at a United States port, such alien never intending to come to nor enter in the United States and hence never applying for admission to do so.
8 C.F.R. 212.1 specifically provides:
Except as otherwise provided in the Immigration and Nationality Act and this chapter, an alien (including an alien crewman) who applies for admission to the United States as a nonimmigrant shall present a valid unexpired nonimmigrant visa issued to him under the nonimmigrant classification in which he seeks admission, and an unexpired passport valid for at least the period set forth in section 212 (a) (26) of the Immigration and Nationality Act: * * *.
It will thus be seen that section 235 (a) of the Immigration and Nationality Act, ( supra), requires all aliens arriving at ports of the United States to be examined by an immigration officer and the inspection of all aliens seeking the privilege of passing through the United States in transit to other foreign territory shall be conducted by an immigration officer.
Therefore, the inspection and examination of all aliens is thus required not only to determine whether or not an alien is admissible to the United States but also to ascertain, among other things, whether or not such arriving alien, including alien crewmen, are excludable as being afflicted with disease, or of coming from a place where diseases are prevalent or epidemic; whether or not there may be a violation of the law.
Obviously, the requisite inspection and examination could not be conducted unless the alien, nonimmigrant, is presented for the necessary inspection and examination.
It should be noted that the statute applies to all aliens who have arrived in the United States and makes no distinction whether arrival is by land, sea, or by air.
It is also necessary to point out that the owners of the vessel as aforesaid, M---- S---- K.K., are not signatories to any agreement or bonding arrangement as mentioned in the provisions of 8 C.F.R. 212.3 (f), ( supra).
This Board has reviewed the facts in this case most carefully and it is our conclusion that a reading of the provisions of the statute and the regulations, as hereinabove set forth, adequately establish a violation of section 273 of the Immigration and Nationality Act ( 8 U.S.C. 1323) in that the passenger brought was found to be a nonimmigrant not in possession of the requisite visa. Moreover, the carrier knew at the time the vessel left the foreign port that the ship was coming to the United States as herein set forth. In these circumstances, the appeal must necessarily be dismissed.
Order: It is ordered that the appeal from the decision of the District Director of Immigration and Naturalization, Seattle, Washington, bearing date July 30, 1953, be and the same is hereby dismissed.