F-5004 and F-1909, F-1910
Decided by the Board May 27, 1952.
Fines — Section 16, Immigration Act of 1924 — Bringing immigrant without immigration visa — Return of passage money.
(1) The provisions in section 16 of the Immigration Act of 1924, requiring that the responsible party shall pay a fine in the sum of $1,000 for each immigrant brought to the United States who does not have an unexpired immigration visa and in addition shall pay a sum equal to the cost of the alien's passage, are separable and divisible. The responsible party may be found liable for the penal sum without being required to refund the cost of the passage money to the alien.
(2) When an alien, excluded as an immigrant who does not have an unexpired immigration visa, is paroled into the United States and later adjusts his immigration status by departure to contiguous territory (Canada), or by departure to an island adjacent to the United States (Cuba), and return to this country, such alien is regarded as having obtained the benefit of his transportation to the United States and is not entitled to the refund of his passage money, which will be returned to the depositor.
BEFORE THE BOARD
(F-5004)
Discussion: This matter is before us by reason of an appeal from the decision of the Acting Assistant Commissioner of Immigration and Naturalization. Adjudications Division dated February 28, 1951, wherein fine in the amount of $1,000 plus passage money in the sum of $378 was imposed against the Transcontinental Western Air, Inc., agents for the plane NC-34577 which plane arrived at New York from a foreign port or place on November 22, 1948, for violation of section 16 of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 216).
The specific violation here complained of is bringing to the United States an immigrant, A---- H----, who at the time of arrival was not in possession of an unexpired consular immigration visa.
The subject alien passenger arrived on the plane at the port and on the date hereinabove indicated, she having boarded the plane in Paris, France, on November 21, 1948. On the occasion of arrival this passenger presented a preference quota consular immigration visa issued under the provisions of section 6 (a) (1) of the Immigration Act approved May 26, 1924. That visa was dated July 14, 1948, and was valid for a period of 4 months from the date of issuance or to November 14, 1948. It will thus be seen that the validity of the said consular immigration visa had expired 7 days prior to the date of her embarkation in Paris, France.
Section 2 (c) of the Immigration Act approved May 26, 1924 ( 43 Stat. 153-154; 8 U.S.C., sec. 202 (c)) provides in part as follows:
The validity of an immigration visa shall expire at the end of such period, specified in the immigration visa, not exceeding 4 months, as shall be by regulations prescribed. In the case of an immigrant arriving in the United States by water, or arriving by water in foreign contiguous territory on a continuous voyage to the United States, if the vessel, before the expiration of the validity of his immigration visa, departed from the last port outside the United States and outside foreign contiguous territory at which the immigrant embarked, and if the immigrant proceeds on a continuous voyage to the United States then, regardless of the time of his arrival in the United States, the validity of his immigration visa shall not be considered to have expired.
Inasmuch as the validity of the immigration visa expired prior to the embarkation of this passenger and prior to the departure of the plane from the last port outside of the United States, it is obvious that this passenger was inadmissible to the United States in that she did not have a valid consular immigration visa as required under the provisions of section 13 (a) of the Immigration Act approved May 26, 1924.
Section 30 of the act of 1940 ( 54 Stat. 673; 8 U.S.C. 451) provides:
Any alien seeking to enter the United States who does not present a visa (except in emergency cases defined by the Secretary of State), a reentry permit or a border crossing identification card, shall be excluded from admission to the United States.
Section 13 (a) of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 213 (a)) provides:
No immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa * * *.
Section 16 of the Immigration Act approved May 26, 1924 ( supra), provides as follows:
(a) It shall be unlawful for any person, including any transportation company, or the owner, master, agent, character, or consignee of any vessel, to bring to the United States by water from any place outside thereof (other than foreign contiguous territory) and (1) any immigrant who does not have an unexpired immigration visa, or (2) any quota immigrant having an immigration visa the visa in which specifies him as a nonquota immigrant.
(b) If it appears to the satisfaction of the Attorney General that any immigrant has been so brought, such person, or transportation company, or the master, 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 immigrant so brought, and in addition a sum equal to that paid by such immigrant for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, such latter sum to be delivered by the Collector of Customs to the immigrant on whose account assessed. * * *
(c) Such sums shall not be remitted or refunded, unless it appears to the satisfaction of the Attorney General that such person, and the owner, master, agent, charterer, and consignee of the vessel, prior to the departure of the vessel from the last port outside the United States, did not know, and could not have ascertained by the exercise of reasonable diligence, (1) that the individual transported was an immigrant * * *.
8 C.F.R., section 116.52 provides in part:
All other aircraft operating in foreign commerce between areas of the United States shall for the purposes of the immigration laws and regulations be subject to the same requirements and liabilities as are vessels (operating on water) * * *.
The provisions of the Air Commerce Act of 1926 subject a violator of any of the provisions of the said act to a penalty of $500.
In a communication of the Deputy Attorney General, dated July 6, 1950, addressed to the Assistant Secretary of Commerce, the Deputy Attorney General advised that hereafter it will be the policy of the Department in cases where the fine under present regulations would be $1,000, whether or not there is also a refund of cost of passage, to mitigate such fine to $500 plus refund, if any, except in aggravated cases.
In a brief filed in connection with the present appeal the attorney for the carrier states that the acceptance of Mrs. H---- as a passenger on the plane with an expired visa was purely by oversight of an employee of TWA and was completely unintentional. Reference is made to the fact that the alien passenger was permitted to enter the United States on parole and accordingly the principal contention of counsel after concession of the named violation is that inasmuch as the said passenger was permitted to enter the United States that assessment of passage money as part of the penalty should not be permitted to stand.
In support of their contention the line has cited a number of decisions of this Board as well as a decision of the court which will be discussed herein.
The Assistant Commissioner of Immigration and Naturalization has cited two opinions of this Board wherein we held that a person who was paroled in the United States was not admitted and therefore the passage money was properly assessed as part of the penalty. In the case of the Hamburg American Line v. United States, 291 U.S. 420, 78 L. Ed. 887, the court held that the penalty and the cost of transportation were separable and that only the penal sum could be imposed at least if the alien involved was admitted to the United States.
In the case of the steamship Magallanes, 56096/62, this Board held that when an alien is paroled into the United States, and later adjusts his immigration status, after departure to Canada and return to this country, that the said alien having obtained the benefit of transportation to the United States, there was no need to return the passage money to the alien. Rather the said passage money should be returned to the depositor. We held similarly in the case of plane NC-30011, file 56118/883, October 29, 1947, also plane NC-90814, file F-4609, February 10, 1950.
In the instant case the alien passenger was paroled into the United States. She subsequently adjusted her immigration status by proceeding to Canada where she procured a consular immigration visa and returned to this country through the port of Niagara Falls, N.Y. on June 24, 1949. She was admitted for permanent residence upon presentation of a quota consular immigration visa. Certainly, in these circumstances the carrier should not be deprived of the transportation of which they earned in bringing this passenger to the United States, especially in the light of the fact that the passenger was not returned to Europe and she chose to proceed to contiguous territory after her parole into the United States in order to procure the necessary document as a prerequisite to lawful entry.
Insofar as the cases cited by the Commissioner in support of his position is concerned which decisions are inconsistent with our action in the present case, we have reversed our position as set forth in those cases and shall sustain the appeal in the instant case.
Order: It is ordered that the order of the Acting Assistant Commissioner of Immigration and Naturalization dated February 26, 1951, is modified to the extent of excluding passage money as part of the penal sum, the remainder of the order imposing fine is permitted to stand at the mitigated amount.
Discussion: These matters are before us again by reason of a motion filed by counsel requesting reconsideration of our determination in the matter of a prior motion dated September 7, 1950.
On July 31, 1949, the Assistant Commissioner of Immigration and Naturalization imposed fines in the amount of $2,000, $1,000 for each of the aforementioned aliens involved, plus passage money in the amount of $862.50, against the Trans World Airlines, Inc., agents for the plane NC-45343 for violation of section 16 of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 216).
The facts in these cases are set forth in detail in the decision of this Board of May 24, 1950, and it is believed unnecessary to discuss these facts again. On that occasion this Board stated as its conclusion that a violation of section 16 of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 216) was established, in that the alien passengers transported were immigrants not in possession of valid immigration visas and that the carrier, had it exercised reasonable diligence, could have ascertained that the documents presented by them, purporting to be immigration visas, were in fact fraudulent.
The sole issue before this Board on the present motion is whether or not passage money in the amount of $862.50 should be returned to the depositor. In connection with the sole issue before this Board the principal contention is that the alien passengers involved did not return to France but were paroled into the United States, subsequently proceeded to Cuba, there obtained valid consular immigration visas, and were subsequently lawfully admitted to the United States for permanent residence on January 5, 1951, at New York. Counsel avers that the imposition of penalty including the passage money when the aliens never returned to Europe is erroneous and that such action unjustly enriches the aliens and unjustly penalizes the carrier, and consequently is contrary to law in cases heretofore decided.
In support of the contention of counsel here advanced there has been cited the case of Hamburg American Line v. United States, 291 U.S. 420, in which case it was held that the principal sum and the amount of passage were separable.
In the case of S.S. Magallanes, file 56096/62 we said, among other things, that the aliens in that particular case had been paroled into the United States and they subsequently adjusted their immigration status after departure to Canada and return. We held that the aliens had obtained the benefit of transportation to the United States and that consequently there was no necessity to return the passage money to the aliens. We held similarly in the case of plane NC-30011, file 56118/883, October 29, 1947. See also fine No. 3829, plane NC-86536, file F-4714; also fine No. 3815, New York, plane NC-90815, file F-4660.
Upon our prior consideration of the question here involved we attempted to distinguish the case of an alien passenger who proceeded to contiguous territory from one who entered and thereafter proceeded to Cuba, but upon reconsideration of our prior decisions and applying them to the present case we feel that we are not able to justify our position, consequently we shall direct the return of the passage money to the carrier, who has as a matter of fact earned the amount of passage money involved and they should not be required to return this passage money to the aliens involved because of the circumstances hereinabove set forth.
Order: It is ordered that order of this Board of September 7, 1950, be and the same is hereby withdrawn; that the present motion be and the same is hereby granted, and that the decision of the Assistant Commissioner of Immigration and Naturalization dated July 21, 1949, be modified so as to exclude passage money therefrom in the amount of $862.50 and that the said amount of passage money be returned to the depositor, the Trans World Airlines, Inc. Order of Assistant Commissioner of January 25, 1951, is modified so as to exclude passage money.
Insofar as it relates to passage money, the remainder of said order to stand.