56071/356
Decided by the Board June 16, 1942.
Fines — Section 16, Immigration Act of 1924 — Bringing immigrant without immigration visa.
1. There is no liability for fine under section 16 of the Immigration Act of 1924 for bringing an immigrant to the United States without proper documents when the transportation company could not have ascertained by exercise of reasonable diligence that the individual transported was an immigrant.
2. When in purchasing transportation to the United States an alien claimed to be a United States citizen and to substantiate his claim presented a seaman's certificate of identity issued by the United States Department of Commerce in the name of another showing birth in this country, a certificate of service, and several certificates of discharge in the name of the latter, and when the circumstances were not such as to have placed the transportation company on notice that the alien was perpetrating a fraud, the transportation company is not liable for fine under section 16 of the Immigration Act of 1924 as the alien's true status could not have been ascertained by the exercise of reasonable diligence.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: This is a fine proceeding against the P. O. Steamship Co., owners of the S.S. Florida, for bringing to the United States the alien named, who was not in possession of an unexpired immigration visa (section 16, Immigration Act of 1924) and for failure to furnish proper manifest covering said alien, he having been manifested as a citizen of the United States (section 14, Immigration Act of February 5, 1917, as amended).
Notices of liability for fine were served upon the owners of the vessel on April 21, 1941, and April 25, 1941, respectively. Both notices were duly acknowledged by said owners. Protest has been filed.
The matter is now before this Board to determine whether fine should be imposed.
DISCUSSION: The S.S. Florida arrived at the port of Miami on April 21, 1941, having on board the alien passenger named, who applied for admission for permanent residence. He was excluded on the ground, pertinent hereto, that he was an alien immigrant not in possession of an immigration visa.
The subject was listed on the passenger manifest as a citizen of the United States. At the hearing before the board of special inquiry he testified that he is a native and citizen of Cuba and gave his true name as E---- P---- y S---- and that he also used the name Manuel Villar. He presented to the board of special inquiry a seaman's certificate of identity issued by the Department of Commerce at New York on September 6, 1940, indicating birth in the United States and a certificate of service issued at the same place on September 11, 1940. He claimed to be the Manuel Villar named in said documents. He stated that he obtained the certificates by presenting the birth certificate of Manuel Villar, which he purchased from a third person. He also presented several certificates of discharge issued in the name of Manuel Villar, which he also obtained from the said third person.
Section 16 (a) of the Immigration Act of 1924 provides that it shall be unlawful for any person * * * or the owner * * * of any vessel to bring to the United States by water from any place outside thereof (1) any immigrant who does not have an unexpired immigration visa * * *.
Section 16 (c) of the said 1924 act provides that the penalty of $1,000 in subsection (b) shall not be remitted or refunded unless it appears to the satisfaction of the Attorney General that such person, and the * * * owner * * * of the vessel, prior to 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 * * *.
In the protest, it is asserted that as the alien practiced a complete fraud on them, fine should not be imposed. It is set forth that in addition to the documents that the subject presented to the board of special inquiry, he also presented a Social Security card. Moreover, he was carefully examined before being accepted for passage and no circumstance developed that aroused any suspicion that he was not a citizen of the United States. The protest admits that the duty of ascertaining the passenger's true status is upon the responsible persons named in the statute, but they contend that not only did they meet this duty, but they conducted a careful examination of the subject and were satisfied as to his claimed status. This diligence on their part, it is argued, justifies a remission of proposed fine.
Inasmuch as the owners of the vessel concede that the duty to determine a prospective passenger's true status devolves upon them, we need only consider whether the circumstances presented by this particular case are such as to justify a holding that fine does not lie on the ground that they could not have ascertained the subject's true status by the exercise of reasonable diligence.
We are of the opinion that fine should not be imposed in this case. The contention that the subject's true status could not have been ascertained by the exercise of reasonable diligence appears to be substantiated by the record. Although it is true that citizenship is an ascertainable fact, nevertheless, the means that the subject adopted in holding himself out as a citizen of the United States resulted in a complete fraud upon the persons who accepted him for passage. In addition, we could not justifiably hold that the circumstances were such as to have placed such persons on notice that the subject was perpetrating a fraud. Each case must be determined upon its own merits and peculiar circumstances ( New York Porto Rico Steamship Co. v. United States, 66 F. 2d 523; Lloyd Saboudo Societa v. Elting, 287 U.S. 329; Elting v. North German Lloyd, 287 U.S. 324).
We conclude, therefore, that liability for fine under section 16 has not been incurred. On the same reasoning, we hold that liability under section 14, for failure to furnish proper manifest arising out of the same circumstances recited above, is not in order.
FINDINGS OF FACT: Upon the basis of the entire record in this case, it is found:
(1) That the S.S. Florida arrived at the port of Miami, Fla., April 21, 1941, having on board the alien passenger named;
(2) That the said alien passenger was excluded by a board of special inquiry on the ground, pertinent hereto, that he was an immigrant not in possession of an immigration visa;
(3) That the line did not know and could not have ascertained by the exercise of reasonable diligence that the alien transported was an immigrant;
(4) That the alien was manifested as a citizen of the United States.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 16 of the Immigration Act of 1924 and section 14 of the Immigration Act of 1917, liability for fine has not been established.
ORDER: It is ordered that no fine be imposed. The sums involved amount to $1,028 and should be returned to the depositor.