56088/143
Decided by the Board September 3, 1941.
Expired immigration visa — Section 2 (c), Immigration Act of 1924.
When an alien left Marseilles, France, with an unexpired immigration visa destined for the United States via Martinique, arriving there 3 weeks before his visa was to expire, but despite his immediate and continued efforts to continue his voyage to the United States was prevented from so doing by circumstances beyond his control until 1 day after his visa expired; held, that his was a continuous voyage from Marseilles and under section 2 (c) of the Immigration Act of 1924 and regulations made thereunder his visa will not be considered to have expired.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigration visa expired.
Mr. Ernest Fleischman, of New York City, for the appellant.
Miss Margaret V. Lybolt, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant arrived at the port of New York from Fort-de-France, Martinique, ex-S.S. Duc D'Aumale on May 29, 1941, and applied for admission for permanent residence. The board of special inquiry found him inadmissible under section 13 of the act of 1924 and excluded him on the ground above stated. On his appeal from that action, the Board of Immigration Appeals under date of June 14, 1941, ordered the excluding decision affirmed without prejudice to appellant's reapplying within 1 year. On July 2, 1941, appellant moved that the hearing be reopened for the reception of additional evidence. The motion was granted on July 18, 1941, and appellant released under bond of $500 pending final determination of the case. The hearing was reopened on July 21, 1941, and the alien excluded on the same ground as formerly. The case is again before this Board for consideration on appeal.
DISCUSSION: Appellant is a native of Germany, stateless, aged 40, married, a journalist. He is destined to a friend in New York City. He presented in lieu of a passport an affidavit executed before the United States Vice Consul at Marseilles, France, on January 16, 1941. He was also in possession of a nonpreference German quota visa issued at Marseilles, France, January 16, 1941.
That visa had expired May 16, 1941, 5 days before the alien's departure from Martinique. The circumstances that caused his departure from Martinique to be postponed beyond the time within which the visa was valid were as follows: The alien sailed from Marseilles, France, on the S.S. Captain Paul Lemerle, March 24, 1941, about 3 weeks prior to the expiration of his visa. He was destined to Martinique in order to obtain passage from there to New York, and arrived there, with visa still valid, on April 20, 1941. He immediately made efforts to continue his voyage to the United States, attempting to get passage on the Pan American Airways. This was refused because of a fear that his German origin would cause him to be interned at an intermediate landing point under English jurisdiction. On May 6, he applied to the American consul for assistance and was informed that war conditions would make his visa acceptable notwithstanding delay beyond its date of validity. He was given similar assurances by the steamship company. Subsequent to May 6, he was unable to pursue his efforts further because he was interned by the Martinique authorities and held until he was placed aboard the Duc D'Aumale on May 17, 1 day after his visa expired. That vessel sailed on May 21, 1941, and the alien proceeded directly to New York on passage purchased in Martinique.
Section 2 (c) of the act of 1924 provides:
* * * In the case of an immigrant arriving in the United States by water * * *, if the vessel, before the expiration of the validity of his immigration visa, departed from the last port outside the United States * * * at which the immigrant embarked, and if the immigrant proceeds on a continuous voyage to the United States, then, regardless of the time of his arrival in the United States, the validity of his immigration visa shall not be considered to have expired.
In view of appellant's unremitting efforts to continue his voyage at all times between his departure from Marseilles and his arrival in New York, and in view of the fact that transportation was available, but refused him for reasons wholly beyond his control, it is thought that his journey to the United States may properly be termed a "continuous voyage" under this act. So far as he was concerned, there was no time after his departure when he was not in the process of traveling to the United States; and his involuntary stop at Martinique may be analogized to other temporary checks upon forward movement that may occur in any journey. Thus, for instance, the holding up of a vessel for minor repairs or other similar pauses has never been considered as breaking a "voyage" under this act.
A case directly in point is Hirsch S---- and Hannchen S---- (56016/751) decided January 12, 1940. In that case the aliens embarked in Germany with valid, unexpired visas. Their journey was interrupted when the ship on which they had embarked was interned at the neutral port of Curacao. More than a month after their visas expired, they succeeded in getting passage on another ship to the United States. On appeal from an excluding decision, this Board on November 20, 1939, authorized their admission. A later opinion, dated January 12, 1940, was entered approving failure to serve notice of fine on the steamship line that brought them. There appears in the file, also, a letter from the State Department recommending this disposition of the case.
Opposed to such a disposition, however, is a literal construction of rule 3, subdivision F, paragraph 3 of the Immigration Rules and Regulations. That rule, which is a paraphrase of section 2(c) supra, was in existence at the time of the S---- decision. It is thought, moreover, that it should not be strictly interpreted and applied under existing circumstances. The present extraordinary situation with respect to transportation plainly was not in contemplation of the rule. And it should not be held to preclude the interpretation of section 2 (c) supra, adopted here.
Therefore it is concluded that, since the vessel on which the alien embarked at Marseilles for the United States left that port prior to the expiration of his visa, and since he proceeded on a continuous voyage to this country, the alien is admissible under section 2 (c) supra, as an alien in possession of a valid unexpired immigration visa. The Service attorney has agreed that this is a case in which the alien is admissible under the statute and rule.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That appellant is an alien, native of Germany, stateless;
(2) That appellant sailed from Marseilles, France, ex-S.S. Captain Paul Lemerle on March 24, 1941 with the intention of proceeding by way of Martinique to the United States;
(3) That appellant arrived in Martinique April 20, 1941;
(4) That appellant is in possession of an immigration visa that expired on May 16, 1941;
(5) That appellant embarked from Martinique for the United States ex-S.S. Duc D'Aumale on May 21, 1941;
(6) That while in Martinique, appellant was unremitting in his efforts to proceed to the United States.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 13 of the act of 1924, appellant is not inadmissible on the ground that he is an immigrant not in possession of an unexpired immigration visa.
OTHER FACTORS: Appellant is a political refugee from Germany because of his journalistic activities against the Hitler regime. He left Germany in 1933 after which he lived in Holland and France. His wife and children, aged 16 and 14, now in France, will follow him to the United States when their papers are ready. Edward Wechsler testified that a relative, Phillip Wechsler, will, if necessary, take appellant into his home and give him work as a music instructor. Appellant testifies that he has had experience in teaching piano and that he has also taught languages. It appears that he also expects to write articles for newspapers in order to support himself.
ORDER: It is ordered that the appeal be sustained and the appellant admitted for permanent residence.