F-2333
Decided by Board January 11, 1949
Fine — Against air carriers — For bringing in immigrant without an immigration visa — Section 16 of the Immigration Act of 1924 — Applicability of section 16, supra, to air carriers — Remission of fine where alien admitted as a returning resident — (Sec. 13 (b) and (f) of the Immigration Act of 1924).
1. The aircraft in this case was in the same category as a vessel subject to $1,000 penalty under section 16 of the Immigration Act of 1924 for bringing in an immigrant without an immigration visa. (Sec. 7 (d) (3) and 10 (b) of the Air Commerce Act of 1926, 8 C.F.R. 116.60, 116.52.)
2. Although the alien was admitted under section 13 (b) of the Immigration Act of 1924, above fine cannot be remitted because of the prohibitive language of section 13 (f) of said act. Hamburg-American Line v. United States, 291 U.S. 420 (Mar. 5, 1934).
BEFORE THE BOARD
Discussion: This case presents an appeal from the order of the Service dated October 26, 1948, imposing a $1,000 fine against Pan American Airways, Inc., agents of plane NC-88933, for bringing to the United States the alien, E---- G----, who was found to be an immigrant not in possession of an unexpired immigration visa.
Appellant contends that section 16 of the Immigration Act of 1924 on which fine has been predicated, is not applicable to air carriers. He argues that section 7 (d) (3) of the Air Commerce Act of 1926 provides its applicability to air commerce only to such extent and upon such conditions as the Attorney General deems necessary; therefore, the amount of fine should be $500, which is provided for in the Air Commerce Act, and not $1,000, which is provided for in section 16 of the Immigration Act of 1924.
Although the Service took the view that appellant's argument as to the amount of fine is without merit by reason of section 161.60, title 8, Code of Federal Regulations, appellant contends that this is not a complete and adequate answer to the problem.
Section 7 (d) (3) of the Air Commerce Act of 1926 conferred upon the Attorney General authority to promulgate regulations relating to the administration of the immigration laws. That section reads as follows:
The Attorney General is authorized to * * * (3) by regulations to provide for the application to civil air navigation of the laws and regulations relating to the administration of the immigration laws to such extent and upon such conditions as he deems necessary.
Pursuant to such power the Attorney General provided for a civil penalty of $500 authorized by section 11 (b), Air Commerce Act of 1926, as amended, except that where such offense in connection with an aircraft would be a violation of the immigration laws and general regulations if the aircraft were a vessel operating on water, the penalty shall be the same as would apply to the case of a vessel (sec. 116.60, 8 C.F.R.). Section 116.52, 8 C.F.R., provides, pertinent hereto, that "all other aircraft operating in foreign commerce * * * shall, for the purpose of the immigration laws and regulations, be subject to the same requirements and liabilities as are vessels (operating on water) except as otherwise provided by statute specifically relating to aircraft * * *."
Since the aircraft in this case is considered by the regulations to be in the same category as a vessel operating on water, for purposes of liability, and since section 16 of the Immigration Act of 1924 already provides a penalty of $1,000 for the same violation as charged here, we must conclude that the conclusion of the Commissioner in imposing a fine of $1,000 is correct and should stand.
The appellant makes an additional point. It is contended that since the alien involved was admitted under the provisions of section 13 (b) of the Immigration Act of 1924, there is no basis for fine. This argument was rejected by the Supreme Court of the United States in Hamburg-American Line v. United States, 291 U.S. 420 (Mar. 5, 1934). In that case the court held that even though an alien was admitted under section 13 (b) of the Immigration Act of 1924, liability to fine still attaches by reason of the provisions of paragraph (f) of said section, which provides that nothing in this section shall authorize the remission or refunding of a fine, liability to which has accrued under section 16 (Immigration Act of 1924).
Order: It is ordered that the appeal be dismissed.