Matter of SS. "AMERICAN EAGLE"

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MATTER OF SS. "AMERICAN EAGLE"

In FINE Proceedings

F-0300-7047 and F-0300-7268

Decided by Board June 14, 1956

Fine-Sections 251, 254, and 271, Immigration and Nationality Act-Alien crewman employed on United States-owned vessel.

(1) Penalty for failure to prevent the unauthorized landing of an alien crewman regularly employed on board a vessel arriving in the United States is covered by the provisions of section 254 (a) of the act and cannot be assessed under the provisions of section 271 (a) of the act.

(2) In the absence of a specific regulation defining "arriving in the United States," the provisions of section 254 (a) of the act do not apply in the case of an alien crewman employed on a United States-owned vessel which carried cargo to Puerto Rico from the United States mainland and returned to the mainland without stopping at a foreign port. But in view of the provisions of 8 CFR 251.4, a fine may lie in such a case under section 251 of the act for failure to furnish the required report with respect to an arriving alien crewman.

BEFORE THE BOARD

Discussion : On February 24, 1955, in case F-0300-7047, the District Director of the Service for the New York District imposed a fine of $1,000 under section 271 of the Immigration and Nationality Act for failure of the steamship line to prevent the landing of the alien A- M at a time and place other than as designated by the immigration officers. We sustained an appeal on June 10, 1955, and directed that a fine be not imposed. Based upon the same arrival of the SS. American Eagle, proceedings were thereafter instituted under sections 231 and 251 of the Immigration and Nationality Act for failure to deliver a list of crewmen, and a fine of $370.00 was imposed on August 2, 1955, in case F-0300-7268. On November 22, 1955, we sustained the appeal in that case and ordered that a fine be not imposed. This matter is now before us pursuant to the Acting Regional Commissioner's motion dated December 16, 1955, requesting reconsideration of our decision in case F-0300-7047. Since case F-0300- 7268 arises out of the same facts, we will also reconsider our decision inthat case. The SS. American Eagle is an American-owned vessel, and the master signed on a complete crew at Norfolk, Virginia, on September

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14, 1954, consisting of 37 crewmen, of whom 36 were citizens and one was an alien. The vessel sailed from Norfolk bound for Philadelphia and Baltimore to load cargo for Puerto Rico. After discharging this cargo in Puerto Rico and loading a full cargo of sugar, the vessel returned to continental United States arriving at the port of New York on October 13, and at Baltimore on October 23, 1954. The crew was paid off in Baltimore on October 25, 1954. The alien involved was in possession of an alien registration card showing entry on June 29, 1949, and he was also in possession of a valid passport and a crewman's landing permit. The master stated that all of the crewmen were kept on board until after the vessel had been boarded and cleared by the Plant Quarantine Inspector and that prior thereto he had been informed that neither customs nor immigration officers would board the vessel. We have carefully considered the contention of the Acting Regional Commissioner, in his motion, as well as the representations of counsel and the Service representative at the oral argument. In our previous order we indicated that, since the alien was employed on the vessel, his case was covered by section 254 (a) of the Immigration and Nationality Act and that section 271 was, consequently, inapplicable. The Service contends that section 254 (a) is inapplicable because that section relates to alien crewmen "arriving in the United States from any place outside thereof" and the alien crewman involved here arrived from Puerto Rico. Hence, the further contention is made that section 271 (a) must apply and the Service relies heavily on 8 CFR 1.1 (b) (2 ) . The regulation referred to above provides that the term "bringing an alien to, or providing a means for an alien to come to, the United States" as used in section 271 of the Immigration and Nationality Act and certain similar terms in sections 256 and 272 mean "any coming from a foreign port or place, from an outlying possession of the United States, or from Hawaii, Alaska, Guam, Puerto Rico, or the Virgin Islands of the United States to or into the United States *** " or the territorial waters or overlying airspace thereof, except : There are two exceptions which relate to "any person (including a crewman) ." However, the exceptions do not imply that sections 256, 271 , and 272 invariably relate to all aliens, both those who are alien crewmen and those who are not. This is clear because section 256 does not relate to aliens generally but is specifically limited to alien crewmen ; section 271 is comprised of aliens generally and the small number of alien crewmen who are not included in section 254 (a) ; and section 272 contains a positive statement eliminating alien crewmen from the purview of that section. For the purposes of sections 256, 271, and 272 of the Immigration and Nationality Act, 8 CFR 1.1 (b) (2) relates to any "coming" from

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Puerto Rico to the United States (presumably continental United States) , but there is nothing in the regulation itself to show whether it does or does not relate to alien crewmen. That question can be determined only on the basis of whether a particular alien crewman is within any of the three statutory sections mentioned. In order to determine whether the regulation has any application to the alien crewman involved here, we must first determine whether he comes within the scope of section 254 (a) , section 271, or neither of them. If section 254 (a) is inapplicable, it does not necessarily follow that section 271 (a) must apply. In considering sections 254 and 271 of the Immigration and Nationality Act, we observe first that the former is entitled "Control of Alien Crewmen" and is part of Chapter 6 ( Title II) which is designated as "Special Provisions Relating to Alien Crewmen," whereas section 271 is part of Chapter 8 ( Title II) which is entitled "General Penalty Provisions." This in itself is an indication that section 254 ordinarily applies to alien crewmen and section 271 does not. The pertinent language in these two sections, both of which provide a penalty of $1,000 for each violation, is as follows : Sec. 254. (a) The owner * * * of any vessel or aircraft arriving in the United States from any place outside thereof who fails (1) to detain on board the vessel * * * any alien crewman employed thereon until an immigration officer has completely inspected such alien crewman * * * or ( 2) to detain any alien crewman on board the vessel * * * after such inspection * * * or (3) to deport such alien crewman * * *. [ Emphasis supplied. ] Sec. 271. (a) It shall be the duty of every person, including the owners *** of vessels * * * bringing an alien to, or providing a means for an alien to come to, the United States ( including an alien crewman whose case is not covered by section 254 ( a ) ) to prevent the landing of such alien in the United States at aport of entry other than as designated by the Attorney General or at any time or place other than as designated by the immigration officers. * * * Taking into consideration the headings of section 254 and Chapter 6 of the Immigration and Nationality Act, the fact that Chapter 6 deals solely with alien crewmen and covers the entire subject exhaustively, and the fact that section 254 (a) employs the phrase "any alien crewman employed thereon," we believe that section 254 (a) was intended to establish a procedure for the control of every alien crewman who was employed on the vessel on which he arrived and that section 271 (a) is limited to those who, while occupationally crewmen, are not so employed, such as a shipwrecked alien crewman or an alien crewmanbeing returned by an American consular officer, as indicated in our decision of June 10, 1955. Since the alien crewman involved here was employed on the vessel, we held that he is not within the purview of section 271 (a) . The question of whether section 254 (a) is also inapplicable because of the phrase relating to arrival from a place outside the United States will be more fully discussed hereinafter.

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Our conclusion that section 271 (a) of the Immigration and Nation- alityAct is inapplicable in this case is reenforced by certain other considerations. Section 271 (a) is substantially a reenactment of the provisions of section 10 (a) of the Immigration Act of 1917, as amended, and the language "bringing an alien to, or providing ameans for an alien to come to, the United States" is identical in both. The decisions in Taylor v. United States, 207 U. S. 120 ( 1907), which involved section 18 of the ImmigrationAct ofMarch 3, 1903, and Osaka Shosen Kaisha Line v. United States, 300 U. S. 98 (1937) , which related to section 10 of the Immigration Act of 1917, as amended, make it abundantly clear that the language in section 271 (a) of the Immigration and Nationality Act is not applicable to a seaman who is employed on the vessel since he is one of the agencies which brings in the ship rather than being brought in by the vessel. We discussed the import of these decisions in Matter of SS. Greystoke Castle and M/V Western Queen, F-1300-161 and F-0605-48 (approved by Attorney General December 1, 1954) , 6, I. & N. Dec. 112, in which we held that the words "any alien" in section 273 of the Immigration and Nationality Act did not include alien crewmen. There is nothing in sections 254 and 271 of the Immigration and Nationality Act to indicate that Congress intended a distinction in the cases of alien crewmen employed on the vessel on the basis of whether they arrived from outside the United States or arrived from Puerto Rico or Hawaii. In addition, section 254 (a) speaks of vessels arriving in the United States and it was logical to add "from any place outside thereof" to exclude coastwise vessels. On the other hand, section 271 merely adopted the precise phrase used in section 10 (a) of the Immigration Act of 1917, as amended. It would have been clearly redundant if section 271 (a) had read "bringing an alien to the United States from any place outside thereof" because the alien could not have been brought to the United States unless he had come from a place outside the United States. In view of our decision in Matter of SS. " Greystoke Castle" and M/V "Western Queen," supra, and the fact that we have here under consideration a reenactment of the particular statutory provision which the Supreme Court had under consideration in the case of Osaka Shosen Kaisha Line, supra, we would consider necessary persuasive evidence of congressional intention to include within section 271 (a) any alien crewman who was employed on the vessel on which he arrived. Such evidence is not present. If section 271 (a) is viewed as applying only to alien crewmen who are not employed on the vessel, it does not conflict with the Supreme Court's interpretation of "bringing an alien to, or providing a means for an alien to come to, the United States." Accordingly, we hold that this language in sec

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tion 271 precludes the application of that section to a crewman employed on the vessel. The Service apparently does not disagree with our view that the question of whether an alien crewman is employed on the vessel is a factor which determines whether he comes under section 254 (a) of the Immigration and Nationality Act or comes within section 271 (a) . However, the Service urges, in effect, that when Congress made the statement in section 271 (a) reading, "including an alien crewman whose case is not covered by section 254 (a)," it intended to bring within the purview of section 271 (a) those alien crewmen, whether employed on the vessel or not, who had not sailed to any foreign port but who were proceeding from a territory of the United States to continental United States. There is nothing in section 271 itself to support this supposition. In order to determine the intention of Congress on June 27, 1952, when the Immigration and Nationality Act was enacted, we must disregard 8 CFR 1.1 (b) (2) since it was not published until December 19, 1952 (17 F. R. 11469) . Viewed in this light, we believe the only tenable conclusion is that Congress intended that section 254 (a) should be applicable to all alien crewmen employed on the vessels on which they arrived and that section 271 (a) should cover those who were not so employed. There is affirmative evidence that Congress did not intend the distinctionbetween sections 254 (a) and 271 (a) of the Immigration and Nationality Act for which the Service contends. Section 251 (e) of the Immigration and Nationality Act provides as follows : The Attorney General is authorized to prescribe by regulations the circumstances under which a vessel or aircraft shall be deemed to be arriving in, or departing from the United States or any port thereof within the meaning of any provision of this chapter. [ Emphasis supplied. ] The use of the words "this chapter" makes the foregoing statutory provision applicable to Chapter 6 of the Immigration and Nationality Act which is comprised of sections 251 to 257, inclusive. 8 CFR 251.4 provides as follows : §251.4 Report of crewman on board certain vessels or aircraft. The master, commanding officer or agent of a vessel or aircraft which arrives at a port in the continental United States or at a port in any other place under the jurisdiction of the United States without touching at a foreign port, on a voyage originating in Hawaii, Alaska, Guam, Puerto Rico, or the Virgin Islands of the United States, shall submit in writing to the United States immigration officer at the port of arrival the surname, given name, middle initial and nationality of each crewman on board such vessel or aircraft, and in addition, in the case of vesse's, the residence of each such crewman. 8 CFR 251.4 applies only to the furnishing of a list of crewmen. In other words, section 251 (a) of the Immigration and Nationality Act creates such a requirement where the vessel arrived from outside the United States, and the regulation imposes a similar requirement

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where the vessel arrived in continental United States from Puerto Rico without having touched at a foreign port. We find no regulation which would make section 254 (a) of the Immigration and Nationality Act applicable to arrivals in the continental United States from Puerto Rico. Section 251 (a) and section 254 (a) contain similar language concerning arrival from outside the United States. In section 251 (a) the phrase used is " arrival of any vessel * * * in the United States from any place outside the United States" and in section 254 (a) "vessel * * * arriving in the United States from any place outside thereof." Hence, there appears to be as much authority to issue a regulation concerning section 254 (a) as there was to issue the regulation pertaining to section 251 (a). As we have indicated above, the authority in section 251 (e) of the Immigration and Nationality Act was specifically limited to Chapter 6 of that act. There is no comparable authorization contained in Chapter 8 in which section 271 is found, and the regulation relied upon by the Service (8 CFR 1.1 (b) (2) ) is dependent on the general authority to issue regulations which appears in section 103 of the act. The Service contended that, for the purpose of immigration inspection, it was necessary to construe section 271 of the Immigration and Nationality Act as including alien crewmen coming from Puerto Rico to the United States (continental United States) as otherwise the provisions of section 212 (d) (7) of the act would be rendered ineffective. The immigration inspection of aliens is covered by section 235 of the Immigration and Nationality Act, which specifically includes alien crewmen, and 8 CFR 1.1 (b) (1) defines "arriving at ports of the United States" as used in section 235 of the act in a manner similar to the regulation previously discussed (8 CFR 1.1 (b)

(2) ) , thus including arrivals from Puerto Rico and the other territories. Hence, the authority to inspect aliens arriving in the continental United States from Puerto Rico is dependent on section 235 of the Immigration and Nationality Act and not section 271. In addition, the provisions of section 254 of the Immigration and Nationality Act, relating to the control of alien crewmen, presumably could have been made applicable to those employed on vessels arriving in continental United States from Puerto Rico under the authority contained in section 251 (e) of that act. Section 101 (a) (38) of the Immigration and Nationality Act provides : "The term 'United States', except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States." When this section is considered in conjunction with sections 212 (a), 212 (d) (7), and 271 of that act, it is apparent that when Congress intended an exception to the general definition, it did so in positive and unmistakable lan

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guage. Section 212 (d) (7) specifically provides otherwise and makes section 212 (a), other than paragraphs (20) , (21), and (26) , applicable to any alien who shall leave Puerto Rico and who seeks to enter continental United States. There is no similar provision in section 271; nor does section 212 (d) (7) state that section 271 shall be applicable to any alien who leaves Puerto Rico and seeks to enter continental United States, the only statement made being that the provisions of subsection (a) of section 212 shall be applicable. It is our considered opinion that a fine cannot be imposed under section 271 (a) since we hold, for the reasons stated above, that the phrase in section 271 (a) of the Immigration and Nationality Act which reads "including an alien crewman whose case is not covered by section 254 (a) " does not encompass an alien crewman who is employed on the vessel on which he arrives. Had our conclusion beenotherwise, we would have considered this a proper case in which to remit the penalty in full because of the unusual circumstances. In view of 8 CFR 251.4, it is possible that a fine may have been incurred under section 251 (a) in case F-0300-7268 and that proceeding will be reopened. Order : It is ordered that no change be made in the order of this Board dated June 10, 1955, sustaining the appeal in case F-0300-7047. It is further ordered that our order of November 22, 1955, in case F-0300-7268 be withdrawn and that the proceeding be reopened for any further action which the Service may deem appropriate.

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