F-0109-19
Decided by Board July 22, 1952.
Fine — Section 16 of the Immigration Act of 1924 — Bringing immigrant to the United States without proper document, native born Canadian citizen.
(1) A carrier, signatory to the overseas Canadian agreement, which is required by law applicable to Canadian common carriers to transport Canadians to their homeland, has not incurred any liability for fine under section 16 of the Immigration Act of 1924 for bringing to the United States without proper documents an immigrant, a native-born citizen of Canada, who was transported to Canada and whose ultimate destination was the United States.
BEFORE THE BOARD
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 December 10, 1951, wherein fine in the amount of $1,000 was imposed against the Trans-Canada Airlines, owners or agents of the aforementioned plane, which plane arrived at the port in Canada and on the date mentioned, for violation of section 16 of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 216).
The specific violation complained of is bringing the alien passenger G---- G---- T----, an immigrant not in possession of an unexpired consular immigration visa.
G---- G---- T---- testified that she was born in Hull, Province of Quebec, Canada, on June 2, 1902, and that she is a citizen of the country of her nativity, to wit: Canada. She further testified before the board of special inquiry in Montreal, Canada, on August 22, 1949, that she resided in the United States from 1930 until 1933, and that on June 16, 1946, she was lawfully admitted to the United States at the Thousand Islands Bridge, N.Y., for permanent residence. She continued to reside in the United States, where she was employed in Rochester, N.Y., as a dietician in charge of the dietary department of the Strong Memorial Hospital until June 29, 1949, when she proceeded to Canada, from which country she departed from Halifax on July 2, 1949, on the S.S. Aquitania en route to England for the purpose of attending her niece's marriage in London. She was possessed of return transportation to Canada on the Trans-Canada Airlines, that ticket having been purchased in Toronto, Canada, for transportation from Prestwick to Montreal, Canada.
It would appear that at some time during the course of arrangements for transportation this native Canadian passenger indicated that she would be "ultimately destined to the U.S.A."
This passenger was under the impression that being in possession of a border-crossing card is all of the necessary documentation required from a native-born Canadian reentering the United States from Canada.
There is contained in the record Canadian citizen's declaration of passenger destined to Canada wherein it is shown that she was destined to 6 Wright Street, Hull, Province of Quebec, Canada.
Section 30 of the act of 1940 ( 54 Stat. 673; 8 U.S.C., sec. 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 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 visa * * *.
Section 16 of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 216) provides, in part, as follows:
(a) It shall be unlawful for any person, including any transportation company, or the owner, master, agent, charterer, or consignee of any vessel, to bring to the United States by water from any place outside thereof (other than foreign contiguous territory) (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 * * *.
Section 23 of the Immigration Act of February 5, 1917, and section 17 of the Immigration Act approved May 26, 1924, authorize the Service to enter into an agreement whereby alien passengers brought to a Canadian port may be preexamined at such ports of arrival in such circumstances and under the same conditions as vessels and aircraft arriving at continental United States ports of arrival and the Trans-Canada Airways are signatories to that so-called Canadian agreement.
In a communication dated July 6, 1950, of the Attorney General it was concluded that, under the provisions of the Air Commerce Act of 1926, where a fine in the amount of $1,000 is imposable, such amount would be mitigated to the extent of $500, except in aggravated cases.
The principal contention on the part of counsel, in a voluminous brief filed in connection with this and similar matters, is that this passenger on the occasion of arrival in Canada was not destined to the United States but rather she was destined to Canada, and that being a native-born Canadian, the carrier was compelled to fulfill its responsibility to transport Canadians to their homeland, this being the normal requirement imposed upon Canadian common carriers.
It is for this reason that the line seeks that no fine be imposed.
Early following the passage of the act of 1924, the Board of Review held that a common carrier cannot refuse to transport a native of Canada to the land of his nativity ( Matter of O----, 55574/659). That precedent remains unreversed and has continued as a precedent since such determination.
After careful consideration of all of the evidence of record, it is the conclusion of this Board that a violation of the act approved May 26, 1924 ( supra), has not been established. (See Matter of Plane TCN, File F-0109-18, B.I.A., July 21, 1952.)
Order: It is ordered that the appeal from the decision of the Acting Assistant Commissioner of Immigration and Naturalization dated December 10, 1951, be and the same is hereby sustained.