56160/360.
Decided by Board July 1, 1946. Memorandum by Central Office August 1, 1946. Decided by Board December 26, 1946.
Fine — Section 20 of the Immigration Act of 1924 — Failure to detain seaman after order to do so — Duty to detain absolute.
The duty imposed on the responsible parties under section 20 of the Immigration Act of 1924 to detain on board the vessel a seaman ordered to be so detained is absolute, and the mere fact that the seaman, after leaving the vessel, returns and sails with the vessel does not relieve the responsible parties from such absolute duty.
BEFORE THE BOARD
(July 1, 1946)
Discussion: On March 14, 1946, the Acting Commissioner imposed a fine in the sum of $1,000 against the Gulf Corp., agents of the S.S. Spidoleine, which arrived at Philadelphia, Pa., February 1, 1944, for failure to detain on board the alien member of the crew T---- C----, pursuant to section 20, Immigration Act of 1924.
The agents have appealed from the order of the Acting Commissioner. In seeking reversal of that order the agents reiterated their previous contention that the action on the part of the alien, who was previously admitted to the United States for permanent residence on February 11, 1925, in leaving the vessel to proceed to his home in New York to secure documents establishing his identity and immigration status did not constitute a violation of the pertinent immigration statute.
The evidence establishes that the alien was admitted to the United States for permanent residence on February 11, 1925, at the port of New York ex S.S. Celtic. He signed on the Spidoleine at Philadelphia January 2, 1944, and proceeded therewith to the Dominican Republic. He returned with the vessel therefrom and arrived at Philadelphia, Pa., February 1, 1944. He was not in possession of any documents and accordingly a detention order was issued.
Thereafter the alien left the vessel, apparently without authority (although the agents state their investigation disclosed that upon arrival of the vessel the alien was not informed by the immigration authorities that he was detained but he was only ordered to produce his documents, and that he forthwith left the vessel for his home in New York to retrieve them) and proceeded to his home in New York to secure said documents. Meanwhile, the vessel left Philadelphia destined to Cape Cruz, Cuba, stopping at New York February 2, 1944, en route thereto. The alien reported on board the vessel and was taken before the immigration authorities there who, after examination, thereupon withdrew the detention order and granted him shore leave. It is shown that the alien produced evidence of his lawful entry into the United States, a travel document, and alien registration card, and upon inspection the detention order, which had been issued by the Philadelphia office, was withdrawn and shore leave granted.
The Acting Commissioner takes the view that despite the action of the New York office, the alien deserted the vessel at Philadelphia after an order to detain him aboard had been issued, and that consequently liability flows therefrom.
We cannot sweep aside as of no import the fact that the detention notice was withdrawn and the alien reinspected and granted shore leave. That the alien would have been entitled to shore leave on presentation of required documents, and a showing that he was entitled to readmission as a returning legal resident, cannot be nullified because on a previous inspection he had been ordered detained due to lack of documents or inability to promptly establish prior legal residence. In fact, upon a showing of such prior lawful entry, and his name being on the crew list, the alien was entitled to readmission without documents.
The facts in this case are distinguishable from those obtained in Matter of S.S. Baron Haig, 56118/590, August 26, 1943, in which we stated:
* * * That decision ( Matter of S.S. Aeas, 56068/170, June 10, 1941) is not to be interpreted as a broad inroad upon the application of section 20 of the Immigration Act of 1924. That a seaman sailed out with the vessel on which he came has not been made a general defense available to responsible parties in all cases where a fine is sought to be imposed under section 20. The ruling in the Aeas case served the very practicable purpose of encouraging the responsible parties to try to apprehend escaped seamen. It was not intended to be a license to such parties to permit alien seamen to go ashore without inspection. If such were the rule, a master or agent, willing to take a chance that his men would return to the ship, could take the matter of granting or denying shore leave into his own hands. Obviously section 20 serves other purposes than the insurance that alien seamen depart with their ships. There are many reasons why certain persons should not be permitted to go ashore in the United States even for one hour. A seaman might be afflicted with a dangerous contagious disease. In time of war he may be in the service of the enemy. The statute required that the seaman in this case be detained on board until he was inspected and granted shore leave. No reason has been advanced why it was impossible or impracticable to comply with this requirement. We are of the opinion that fine has been incurred.
In the instant case inspection did take place on two occasions. The alien's leaving the vessel after the first inspection when an order to detain was served does not appear to have been an escape in the strict sense of the word and subsequent events establish a contrary purpose. But the order of detention having been withdrawn upon a proper showing of eligibiliy to shore leave, and, albeit, a right to readmission as a returning resident, the basis for any liability was thus removed. To contend that the inspector who examined the alien at New York was without authority to withdraw the order of detention has no basis in law. As shown, the alien established his right to shore leave and readmission as a returning resident, and to contend that this could have been accomplished without the detention order being withdrawn is to place form over substance. It would amount to an inequitable administration of the immigration laws in a situation which the statute and corresponding regulations do not contemplate. In the light of subsequent events, it may be concluded that the alien was constructively in possession of evidence establishing his right to discharge from the vessel and readmission as a returning resident and, as an integral corollary, shore leave. The alien, in short, was actually inspected after his arrival in the United States and departed with the vessel in his capacity as seaman and it therefore will be difficult to maintain that liability to fine has accrued.
According, the order of the Acting Commissioner will be reversed and the case remanded for further proceedings.
Order: It is ordered that the order of the Acting Commissioner proposing fine of $1,000 in this case be reversed and the matter remanded for further proceedings in accordance with this opinion.
Discussion: This record relates to a fine proceeding instituted under section 20 of the Immigration Act of 1924, against Gulf Oil Corp., agents of the S.S. Spidoleine for failure to detain on board the above-named alien crewman after service of an order to do so.
The record shows that the vessel Spidoleine arrived at the port of Philadelphia, Pa., from foreign on February 1, 1944. There was employed thereon, as a crew member, the above-named British national. Upon inspection of the crew by Service officers, it was learned that this subject crewman was not in possession of identifying travel documents as required by Executive Order No. 9352 and a notice to detain him on board the vessel was served on the agents, the said Gulf Oil Corp., on February 1, 1944. It was noted that when the vessel departed from Philadelphia on February 5, 1944, for Cuba, this alien crewman was not on board, and, in accordance with requirements, notice of liabiilty for fine was served on the agents on February 7, 1944.
Section 20 of the Immigration Act of 1924, requires the imposition of a fine of $1,000 against the master, charterer, owner, agent, or consignee of a vessel arriving in the United States, who fails to detain on board an alien seaman after being ordered to do so by an officer of this Service.
The Gulf Oil Corp. by statement affirmed the escape of the said seaman from the vessel and admitted that he did leave the vessel following its arrival at Philadelphia and after inspection by Service officers, and also after the issuance of the order for detention. It was further stated that after he left the vessel he went to New York City in order to secure the required travel documents. When the vessel arrived at New York, February 7, 1944, this alien reported on board and was then taken to the Service office and "the detention order was withdrawn and shore leave granted * * *." In connection with this assertion on the part of the Gulf Oil Corp., there was submitted with the record a photostatic copy of notice of order to detain issued by Immigrant Inspector Dwyer; at New York on February 8, 1944, concerning the subject alien which bears the notation "order withdrawn — shore leave granted." The New York Service officers, in commenting on the alien's release for shore leave in New York, said that the afore-mentioned Inspector Dwyer conducted the inspection of the alien seaman at New York but that since that time this inspector has been detailed to foreign duty and the New York office is unable to get a report from him as to just what transpired. In conclusion, the New York officers state that if the alien was released by Inspector Dwyer, he did so without the authority or the knowledge of the New York office.
On March 14, 1946, the Immigration and Naturalization Service gave consideration to the case and found that a violation of section 20 of the 1924 act had occurred, in that the subject alien had left the vessel after the issuance and the service of a detention order and as a consequence a penalty amounting to $1,000 was ordered imposed against the Gulf Oil Corp. On May 21, 1946, consideration was again given the case in the matter of an appeal made by the Gulf Oil Corp. from this order but inasmuch as no evidence or information not previously considered was presented, the Service directed in effect that no change be made in the order of March 14, 1946. The case thereafter was submitted to the Board of Immigration Appeals which directed that the order of March 14, 1946, imposing the fine be reversed.
In its opinion, the Board of Immigration Appeals stated that "inspection did take place on two occasions. The alien's leaving the vessel after the first inspection when an order to detain was served does not appear to have been an escape in the strict sense of the word and subsequent events establish a contrary purpose." However, the fact is admitted that the alien did desert the vessel at Philadelphia, Pa., following the order to detain issued at that port. It has been determined that the duty imposed by the statute to detain on board an alien ordered detained is absolute and the argument advanced as was done by the Board in this instance that after he left the vessel he did secure his proper documents in another place and did rejoin the vessel and was later permitted ashore, is no defense or excuse for failure to comply with the statutory obligation. Authority to permit an alien to go ashore rests solely with the Service officer and not with the master or other responsible ship's representatives ( British Empire Steam Nav. Co., Ltd. v. Elting, 74 F. (2d) 204, certiorari denied, 295 U.S. 736).
The Board of Immigration Appeals then stated "as shown the alien established his right to shore leave and readmission as a returning resident and to contend that this could have been accomplished without the detention order being withdrawn is to place form over substance. It would amount to an inequitable administration of the immigration laws in a situation which the statute and corresponding regulations do not contemplate. In the light of subsequent events, it may be concluded that the alien was constructively in possession of evidence establishing his right to discharge from the vessel and readmission as a returning resident and as an integral corollary, shore leave." In relation to this statement, it can be stated that if an alien upon arrival at a United States port and upon inspection by Service officers is found not to be in possession of required documents, he is ordered detained on board. The fact that he did have such documents, but did not or could not then present them, or subsequently got them and thereafter presented them, does not absolve the responsible parties for permitting him to leave the ship while the detention order is still outstanding. In support of this determination reference is made to the Matter of S.S. Norlys, file 56118/831, in which the Board of Immigration Appeals on September 28, 1943, declared that a detention order once served remains in full force and effect until cancelled or withdrawn and the duty imposed by it is absolute. It may be that the detention order would have been withdrawn had the Service officers been advised that the seaman in question had subsequently complied with the regulatory requirements, but the determination of whether seamen are entitled to go ashore or are to be detained is placed by law on the Immigration authorities and may not be exercised by the master or any other representatives of a vessel.
The Board of Immigration appeals finally made reference to the case of the S.S. Baron Haig, file No. 56118/590, and attempted to distinguish such case from the instant case. However, it is believed that the case of the S.S. Baron Haig does not apply as an argument in support of the Board's decision in the present case and consequently need not be commented upon here.
It may be stated that the penalty prescribed by section 20 of the 1924 act appears harsh for a violation which is technical in nature and where as alleged here the seaman returned to his vessel. However, on December 19, 1944, Public Law No. 503 was enacted by Congress and such act amending section 20 authorized the Attorney General in his discretion to mitigate fines imposed under the said section 20 to a sum not less than $200. Therefore, it is evident that a remedy is available to a respondent for the reduction of penalty. Section 20 of the 1924 act is clear in its meaning and it is not believed that such should be distorted in order to avoid the imposition of a comparatively heavy penalty where an amendment provides a means for leniency in meritorious cases.
In conclusion it may be stated that this decision of the Board of Immigration Appeals if accepted, may tend to establish a dangerous precedent which in the future might offer opportunities to render meaningless the power of the statute and eventually modify the absolute duty to detain on board after the issuance of an order to do so. It is therefore believed that this case should be returned to the Board of Immigration Appeals for reconsideration and if the Board does no see fit to withdraw its outstanding order then certification to the Attorney General.
Order: It is ordered that pursuant to 8 C.F.R. 90.3, the subject case be returned to the Board of Immigration Appeals for reconsideration and in the event that it does not see fit to withdraw its prior order which in effect declared that no penalty should attach, then for certification to the Attorney General.
Discussion: This is a fine case against the agents of the S.S. Spidoleine which arrived at the port of Philadelphia February 1, 1944 for failure to detain on board the alien crew member named above, pursuant to section 20, Immigration Act of 1924.
We may restate the facts briefly. After the notice to detain was served, the alien left the vessel and went to New York City in order to obtain documents showing that he was entitled to be admitted. He rejoined the vessel at New York City a few days later and an immigrant inspector noted on the detention order that the order was withdrawn and that shore leave was granted.
This Board has held in many cases that the liability imposed by section 20 to detain on board is absolute. We have made an exception where the agents by their own efforts have succeeded in apprehending the seaman and the seaman has departed on the same vessel ( Matter of Aeas, 56068/170 (June 10, 1941)). However, the mere fact that the seaman, after leaving the vessel, returns and sails with the vessel does not relieve the agents from liability for a fine. See Matter of S.S. Renvoyle, 56150/122 (May 4, 1944); Matter of Davila, 56118/196 (Oct. 30, 1943); Matter of S.S. Hercules, 56118/527 (Nov. 17, 1943); Cf. Matter of S.S. Sovac, 56106/536 (Mar. 1, 1944).
We have reconsidered our decision and we believe that the agents are liable under section 20. As the Central Office points out, the act of December 19, 1944, amending section 20, permits a mitigation of the fine if the agents make application therefor.
Order: It is ordered that the order of the Acting Commissioner dated March 14, 1946 proposing a fine in the amount of $1,000, be affirmed, and that decision of July 1, 1946, of this Board be and the same is hereby reversed.