A-4366641
Decided by Board. February 17, 1950
Seaman — Returning legally resident alien — Exemption (in 1926) as to immigration visa requirement — Effect where such seaman a mere "workaway."
An alien who was lawfully admitted for permanent residence in 1923 and was found to be a returning legal resident in 1926, returning from a temporary visit abroad — is deemed a returning resident alien seaman exempt from presentation of documents, where he was a "workaway" (then signed on the ship's articles and employed aboard a vessel arriving here from a foreign port, sec. 1, Immigration Act of 1917) though not a "bona fide" seaman under section 3 (5) of the act of 1924 (which refers to nonimmigrant seamen).
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: Respondent, a native and citizen of Germany, male, 58 years of age, married, first entered the United States on April 26, 1923, and was admitted for lawful permanent residence. He last entered the United States on May 24, 1926, and was admitted as a seaman. Between these two entries respondent made three departures and two other entries. There have been seven deportation hearings in this case. After the last hearing the Commissioner of Immigration and Naturalization on May 10, 1946, ordered respondent's deportation to Germany. This Board reversed that decision, granting respondent voluntary departure on June 19, 1946, and denying his application for preexamination. On April 22, 1948, we directed a reopening in order to receive into the record additional evidence bearing on the question as to whether or not the respondent was actually a returning resident alien seaman at the time of his last entry "and therefore exempt from presentation of documents." The reopened hearing was held and the presiding inspector came to the conclusion that respondent was not a bona fide seaman and entitled to admission as such at the time of his last entry. The Assistant Commissioner adopted those findings and ordered that the alien be deported to Germany at Government expense on the charge that he entered without an immigration visa in violation of the act of 1924.
We will not set forth at length the issues and evidence. This was done most competently by the presiding inspector in his opinion of December 13, 1948. In previous hearings a principal dispute between respondent and the Government was whether or not the respondent had at any time during the interval between April 26, 1923, and May 24, 1926, abandoned his residence in the United States. The presiding inspector concluded that the evidence now in the record conclusively establishes that at all times between those dates the respondent had the intention to return to the United States and to maintain his residence here. With this finding, we concur.
The only issue now before us is the decision of the following question: Would the regulations in 1926 allow the admission of respondent without a reentry permit or an immigration visa? The presiding inspector concluded, first, that respondent was admitted in 1926 as a seaman, a nonimmigrant and nonresident, for a temporary period, and, second, that the regulations at that time did not permit an admission of respondent without a visa as a returning resident alien seaman, because respondent was a workaway rather than a bona fide seaman. Counsel, on the contrary, contends first, that respondent was admitted in 1926 as a returning resident alien seaman who had been previously lawfully admitted to the United States, and, second, that the regulations at that time were such as would permit such an admission of respondent, even though he was a workaway and not a bona fide seaman whose sole occupation was in pursuit of his calling at sea. Section 1 of the 1917 act defines the term "seaman" to include "every person signed on the ship's articles and employed in any capacity on any vessel arriving in the United States from any foreign port or place." Section 3 of the act of 1924 provides, in part:
SECTION 3. When used in this act, the term "immigrant" means any alien departing from any place outside the United States destined for the United States, except * * * (5) a bona fide alien seaman serving as such on a vessel arriving at a port of the United States and seeking to enter temporarily the United States solely in the pursuit of his calling as a seaman * * *
The regulations in question are as follows:
Subdivision A, PP.1. The term "seaman" as used in this act shall include every person signed on the ship's articles and employed in any capacity on board any vessel arriving in the United States from any foreign port or place. Only aliens who come within such definition shall be treated in the special manner herein specified * * *.
Subdivision A, PP.2. A bona fide seaman within the meaning of subdivision 5 of section 3 of the Immigration Act of 1924 is any alien whose sole occupation is to manage, navigate, or operate, or assist in the management, navigation, or operation of ships at sea, and includes any alien who is in good faith signed on the ship's articles and employed in any capacity on board any vessel arriving in the United States from any foreign port or place.
Subdivision E, PP. 3. A bona fide alien seaman serving as such on a vessel arriving at a port of the United States and seeking to enter the United States as an immigrant shall be subject to all the immigration laws, rules and regulations applicable to immigrants and shall be required to present to the proper immigration official at the port of arrival an immigration visa duly issued and authenticated by an American consular officer in the manner required by law: Provided, That where it shall satisfactorily appear that such alien seaman has been previously lawfully admitted to the United States and is returning from a temporary visit abroad and is otherwise admissible he may be regularly admitted without an immigration visa upon payment of the requisite head tax.
Subdivision E, PP. 3, has been amended and now appears as 8 C.F.R. 120.20 (b), as follows:
An alien seaman, who, previously, has been lawfully admitted for permanent residence and who is returning to an unrelinquished domicile in the United States may, if otherwise admissible, be permitted to enter as a returning resident under section 4 (b) of the said act without a nonquota immigration visa or reentry permit if the name of such alien appears on the crew list of the vessel on which he arrives and is included in the visa thereof * * *
The troublesome phraseology is in PP. 3 above, from which it appears that only "bona fide seaman" as distinguished from "seaman" were to be admitted without a visa when they returned from a temporary visit abroad. Superficially, this would appear to have been the situation, and this was the finding of the presiding inspector. We hold that respondent was a "seaman" in Section 1 of the 1917 act, even though he was clearly not a bona fide seaman under section 3 (5) of the Immigration Act of 1924 and paragraph 2 of subdivision A above quoted. We hold that the clause "provided," that where it shall satisfactorily appear that such alien seaman has been previously lawfully admitted to the United States and is returning from a temporary visit abroad and is otherwise admissible he may be regularly admitted without an immigration visa * * *" applies to seaman as defined in PP. 1. It is obvious from the text and the context that "bona fide seaman" refers to nonimmigrant seaman under section 3 (5) of the 1924 act and not to immigrant seaman. Respondent was a seaman under section 1 of the 1917 act in that he was signed on the ship's articles and employed on board a vessel arriving in the United States from a foreign port.
It is our conclusion that respondent was a returning resident alien seaman at the time of his last entry, and therefore he was exempt from presentation of documents. He was regularly admitted in accordance with the regulations existing at that time and was not required to present documents. The "no visa" charge is not sustained. These proceedings should be terminated.
Order: It is ordered that these proceedings be terminated.