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IN THE MATTER OF S. S. NEA HELLAS
In FINE Proceedings
Decided by Central Office April 21, 1950
Decided by Board July 14, 1950
Fine-Bringing by water an immigrant without an immigration visa-Section 16 of the Immigration Act of 1924-Alien destined to United States.
A violation of section 16 of the Immigration Act of 1924 is established in this case in that the passenger transported was an immigrant not in possession of an unexpired immigration visa or valid permit to reenter the United States which fact could have been ascertained by the exercise of reasonable diligence; the features in this case are distinguishable from one where the party was in fact destined to Canada for business prior to entering the United States, that fact was known prior to embarkation, his passage to Canada was booked accordingly, and he proposed to proceed to the United States only after completion of his business in Canada.
BEFORE THE CENTRAL OFFICE
(April 21, 1950)
Discussion: This is a fine proceeding instituted under section 16 of the Immigration Act of 1924 against I. H. Mathers and Sons, Ltd., Agents for the S. S. Nea Hellas for bringing to the United States from foreign, MC-K-, an alien passenger who is an immigrant not in possession of an unexpired immigration visa.
The subject alien is a 37-year-old married female, a native of Cyprus and a British subject, who is a lawfully resident alien of the United States. She arrived at Halifax, Nova Scotia, as a passenger on the S. S. Nea Hellas and was excluded by a board of special inquiry on July 25, 1949, on the ground that she was an immigrant not in possession of a valid immigration visa. She was subsequently found admissible for permanent residence upon preexamination at Halifax, Nova Scotia, when she appeared there in possession of a visa issued under section 4 (b) of the Immigration Act of 1924 by the American Consulate at Halifax, Nova Scotia, on July 26, 1949.
The record reveals that the alien left the United States on May 7, 1948, for a trip to Cyprus in the company of her husband. She was issued a reentry permit on May 26, 1948, which expired on May 26,
1949. At Piraeus, Greece, on July 7, 1949, she surrendered to respondent the return portion of her round-trip ticket which had been purchased in the United States; secured transportation and embarked for the United States on July 10, 1949. The alien and her husband testified that at the time transportation for the return trip was given to them, the agent who issued the ticket did not examine the alien's reentry permit, which had then expired.
The record reveals that subsequent to embarkation, the ship's purser informed the alien that the reentry permit had expired and suggested that the alien and her husband leave the ship at Lisbon, Portugal.
The alien's husband testified they did not leave the ship at Lisbon and apply for an immigration visa because the Canadian consul who visited the ship at Lisbon informed him that as long as he and his wife were going to Canada, she could apply for a visa in Canada. The alien's husband also spoke to the American consul who visited the ship at Lisbon, but is unable to state what he was told by the American consul.
Protest filed on behalf of the respondent on the ground that at the time the alien applied for passage to the United States in June or July 1949, the Piraeus office noted that her reentry permit had expired; that thereupon, the Piraeus office instructed the alien to apply to a British or Canadian official and secure a transit visa to Canada where she could then apply for the proper documents for entrance into the United States; that upon her receipt of a transit visa she was booked for passage, not to a port of the United States, but to the port of Halifax, Nova Scotia, and that she was listed on the manifest of the vessel as destined for Halifax, not to a port of the United States. It is urged that fine may be imposed under section 16 (a) of the Immigration Act of 1924 and 8 C. F. R. 160.10 only in cases where a vessel brings aliens "to the United States by water from any place outside thereof (other than foreign contiguous territory)"; and that in the instant case the vessel brought the subject alien not "to the United States," but to the port of Halifax, Nova Scotia; and that neither the law nor regulation has application to the facts of the instant case. The protest further urges that the subject alien, as the wife of an American citizen and a person who was lawfully admitted to the United States who was returning from a temporary visit abroad, could seek entry at an American port, without the carrier being liable for the imposition of fine in view of the holdings in Johnson v. Keating, 17 F. (2d) 50 (C. C. A. 1, 1926), and Rederiaktiebolaget v. U. S., 61 F. (2d) 808 (C. C. A. 9, 1932).
The carrier is signatory to the Canadian (Overseas) Agreement (56239/193) executed under section 23 of the Immigration Act of 1917 and section 17 of the Immigration Act of 1924. Under the law
and by the terms of the agreement, the carrier must therefore be treated in the same manner that the carrier would be treated which brings an alien directly to a port in the United States.
Had the carrier brought the alien directly to a port in the United States, fine would have been imposed since the carrier knew or could have ascertained by the exercise of reasonable diligence that the subject alien was an immigrant not in possession of an unexpired immigration visa.
In the Matter of Plane CF TPH TCA 208, F-4847 (April 12, 1950, B. I. A.), the Board of Immigration Appeals held that where an applicant destined to Canada was ultimately to proceed to the United States after transacting business in Canada which would require him to remain there for an unknown period of time, a violation of section 16 of the Immigration Act of 1924 for bringing an immigrant not in possession of an unexpired immigration visa was not established. We distinguish the instant case from the case above cited in that, the alien herein was in fact destined to the United States while the alien in the above-cited case was in fact destined to Canada for the purpose of transacting business there. Fine must therefore be imposed in the instant case.
The case of Johnson v. Keating (supra) cited by the respondent, was overruled in U. S. ex rel. Polymeris v. Trudell, 284 U. S. 279 (1932) where the court stated:
A returning alien cannot enter unless he has either an immigration visa or a return permit.
In the instant case the alien, who must be regarded as applying for admission at a port of the United States, was not in possession of an immigration visa or an unexpired reentry permit.
The decision in Rederiaktiebolaget v. U. S. (supra), was overruled by the case of Hamburg American Line v. U. S., 65 F. (2d) 369 (C. C. A. 2, 1933, aff'd 291 U. S. 420 (1934)).
Inasmuch as it appears the alien obtained a visa in Canada at no unusual expense, and was not required to leave the United States to adjust her status, it cannot be held that her journey was fruitless and passage money will not be imposed as part of the penalty.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the S. S. Nea Hellas arrived at Halifax, Nova Scotia, on July 24, 1949, having on board, the alien passenger, M. C. K., an immigrant destined, in fact to the United States.
(2) That the subject alien, a native of Cyprus and citizen of Great Britain, applied for admission to the United States for permanent residence, and did not present an immigration visa. (3) That the alien was excluded by a Board of Special Inquiry as
an immigrant not in possession of an unexpired immigration visa and that she did not appeal the excluding decision. (4) That the respondent knew or could have ascertained by the exercise of reasonable diligence that the subject alien was an immigrant not in possession of an unexpired immigration visa. Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded: (1) That under section 16 of the Immigration Act of 1924, a penalty has been incurred.
Recommendation: It is recommended that fine be imposed. The amount involved is $1,000.
BEFORE THE BOARD
(July 14, 1950)
Discussion: This matter is before us by reason of an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization dated April 21, 1950, wherein fine in the amount of $1,000 was imposed against I. H. Mathers and Sons, Ltd., Agents for the S. S. Nea Hellas, which vessel arrived at Halifax, Nova Scotia, on July 24, 1949, for violation of section 16 of the Immigration Act approved May 26, 1924 (8 U. S. C., 216). The specific violation is "bringing to the United States by water an immigrant alien who does not have an unexpired immigration visa."
The passenger involved in this case testified that she was born in Kyssonerga, Paphos, Cyprus, on August 15, 1902, and that she is a British subject. She further testified that she was in the United States from April 4, 1928, to November 1937 and from May 27, 1938, to May 7, 1948, on which latter mentioned date she departed from New York ex S. S. Nea Hellas for the purpose of visiting abroad. At the time of departure she was accompanied by her husband, a citizen of the United States.
Prior to departure from Detroit, Michigan, this passenger applied for and obtained a permit to reenter the United States which permit was delivered to her by the United States consul in the Island of Cyprus. The validity of such permit extends for a period of 1 year.
The subject passenger embarked at Piraeus, Greece, on July 10, 1949, on the return portion of contract at which time it is indicated that the agent for the line did not inspect the permit to reenter the United States. A day after departure from Genoa, Italy, the purser's office inquired as to whether or not the subject alien was in possession of a permit as herein referred to and it was on that occasion that it was discovered that the validity of the said permit had expired. Thereupon it was suggested that the subject disembark at Lisbon, Portugal, and communications were directed by telegraph to the United States and Canadian consuls both of whom boarded the ship in Lisbon. It is
alleged, "The Canadian consul told me that as long as I was going to Canada I could apply for a visa in Canada.”
Upon arrival in Halifax, Nova Scotia, and subsequent to inspection by the Canadian authorities the subject passenger was interrogated by the United States immigrant inspector at that port and on July 25, 1949, she appeared before the board of special inquiry which board found her inadmissible to the United States in that she was an immigrant not in possession of a valid immigration visa.
Section 13 of the Immigration Act approved May 26, 1924 (8 U. S. C. 213 (a)), provides that no immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa.
Section 10 of the Immigration Act approved May 26, 1924 (8 U. S. C. 210), provides among other things (a) Any alien about to depart temporarily from the United States may make application to the Commissioner of Immigration and Naturalization for a permit to reenter the United States, stating the length of his intended absence, and the reasons therefor.
Section 30 of the act of June 28, 1940 (8 U. S. C. 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, *** shall be excluded from admission to the United States." Section 16 of the Immigration Act approved May 26, 1924 (supra), provides in part as follows:
(a) It shall be unlawful for any person, including any trans-