56016/689
Decided by the Board May 11, 1941.
Fines — Section 16 of the Immigration Act of 1924 — Bringing immigrant without proper documents.
1. Liability may arise under section 16 of the Immigration Act of 1924 if an alien presents an invalid immigration visa, although the visa was properly granted at the time of issuance.
2. A fine has not been incurred under section 16 of the Immigration Act of 1924 for bringing an immigrant to the United States who is without proper documents entitling him to admission if the transportation company did not know and could not have ascertained by the exercise of reasonable diligence that the person transported did not have such documents.
3. A Roumanian woman and her German husband were both issued immigration visas under the German quota because she was to accompany him to the United States. Transportation was purchased upon exhibition of the visas to the steamship company. Thereafter the husband was interned in France and the wife came to the United States alone. Held, that the transportation company did not know and could not have ascertained by the exercise of reasonable diligence that the alien was an immigrant not in possession of proper documents.
Mr. Warner H. Parker, for the respondent.
Mr. J.H. Krug, Board attorney-examiner.
STATEMENT OF THE CASE: This is a fine proceeding against the Holland-America Line, agents of the vessel S.S. New Amsterdam, for bringing to the port of New York on September 29, 1939, the alien (E---- B----), who was excluded by a board of special inquiry as a Roumanian quota immigrant and not a German quota immigrant as specified in her visa. Notice of intention to fine was served on January 30, 1940, upon the Holland-America Line, which acknowledged receipt thereof. Protest was filed by the line on April 26, 1940, and a brief on behalf of the line was filed on July 12, 1940.
The matter is now before this Board to determine whether a fine should be imposed.
DISCUSSION: The record shows that the alien arrived at New York on the S.S. New Amsterdam on September 29, 1939, coming from Rotterdam, The Netherlands. A board of special inquiry excluded her because she presented a German quota visa although she was a native of Roumania, and, therefore, should have presented a Roumanian quota visa. By decision dated October 24, 1939, the Central Office ordered that the appeal of the alien be sustained and that she be admitted to the United States under section 13 (d) of the Immigration Act of 1924, provided a quota number was allotted to her by the State Department under section 13 (e). Subsequently, the State Department reduced the Roumanian quota by one number to provide for the admission of the alien.
At the hearing before the board of special inquiry, the alien presented a German passport and a German quota visa issued at Marseille, France, on August 16, 1939. The alien's husband obtained a visa at the same time. The alien was a native of Roumania and normally, therefore, would have obtained a visa under the Roumanian quota The Roumanian quota, however, was closed. The alien's husband was a native of Germany, and the German quota was open. The consulate at Marseille issued to the alien a German quota visa under the provisions of section 12 (a) (2) of the Immigration Act of 1924. This section provides that if a wife is of a different nationality from her alien husband and the quota of her nationality is closed, her nationality may be determined by the country of birth of her husband if she is accompanying him and he is entitled to an immigration visa.
The alien and her husband were in Paris at the time the war broke out. They had purchased transportation and were about to proceed to Rotterdam, The Netherlands, when the husband was seized by the French authorities and interned as an alien enemy. Since her husband did not accompany her, the visa which she presented did not authorize her admission to the United States. The Central Office, in authorizing admission of the alien under section 13 (d), made a finding that she could not have ascertained her inadmissibility by the exercise of reasonable diligence prior to embarkation.
Counsel in his brief urges that section 16 does not authorize a penalty for bringing an alien who has a visa issued under the quota of one country when it should have been issued under the quota of another country, at least where the visa was properly granted under this quota at the time of issuance. He contends that the validity of a visa must be determined as of the time of issuance. With these contentions we do not agree. The visa presented by the alien was invalid, and section 16 must be construed to provide a penalty for bringing an alien who does not have a valid visa.
Section 16 (c) authorizes the remission of a fine if the line did not know and could not have ascertained by the exercise of reasonable diligence that the individual transported was an immigrant not in possession of the proper documents. We are of the opinion that the line could not have ascertained this fact by the exercise of reasonable diligence. At the time the transportation was issued, there was no reason to suspect that the alien's husband might not accompany her. When the alien boarded the vessel her visa, on its face, appeared to be perfectly valid. The employees of the line had no reason to suspect that the alien's husband was not on the vessel or that he had been interned by the French authorities. Under the circumstances, we are of the opinion that the line has not incurred liability to a penalty under section 16.
FINDINGS OF FACT: Upon the basis of all the evidence produced at the hearing and upon the entire record, it is found:
(1) That the above-named alien arrived at New York on September 29, 1939, on the S.S. New Amsterdam coming from Rotterdam;
(2) That the alien was a native of Roumania but presented a German quota visa which had been issued to her on August 16, 1939, under section 12 (a) (2) of the 1924 act, on condition that her husband would accompany her;
(3) That after the line had issued transportation to both the alien and her husband, the husband was prevented from accompanying the alien because he was interned in France;
(4) That the alien was excluded by a board of special inquiry on the ground that she was a Roumanian quota immigrant and not a German quota immigrant as specified in her visa;
(5) That subsequently the alien was admitted to the United States under the provisions of section 13 (d) and 13 (e) of the 1924 act;
(6) That the line did not know and could not have ascertained by the exercise of reasonable diligence that the alien was an immigrant not in possession of the proper documents.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 16 (c) of the Immigration Act of 1924, the fine should be remitted on the ground that the line did not know and could not have ascertained by the exercise of reasonable diligence that the individual transported was an immigrant not in possession of the proper documents.
ORDER: It is ordered that the fine be remitted. The sum involved, $1,000, should be returned to the depositor.