1. An alien resident of the United States returning from a
temporary visit abroad is a "nonquota immigrant." Immigration Act
of 1924, § 4(b). P.
291 U. S.
422.
2. By §§ 10(a), (b), (c), (f), and 13(b), of the Immigration
Act, and regulations thereunder, a permit to reenter granted to an
immigrant who has been legally admitted to the United States and
who departs therefrom temporarily, is the equivalent of an
immigration visa for the purpose of determining his right to re
admission, under § 13(a), and the liability of a steamship company
for bringing him back, under § 16(a). P.
291 U. S.
422.
3. Where a steamship company brings in a nonquota immigrant
without immigration visa or reentry permit, it is liable to fine
under § 16 of the Act notwithstanding that the Secretary of Labor,
acting on discretionary authority assumed to be conferred by § 13,
admits him to the country, since subdivision (f) of § 13 provides
that nothing in that section "shall authorize the remission or
refunding of a fine, liability to which has accrued under Section
16." P.
291 U. S.
425.
4. Where an immigrant, unlawfully brought in without visa or
reentry permit, is nevertheless admitted, the fine of $1,000 can
legally be imposed on the steamship company under § 16(b) without
requiring it to pay the passage money. P.
291 U. S. 426.
65 F.2d 369 affirmed.
Certiorari, 290 U.S. 615, to review the affirmance of a judgment
dismissing the complaint in an action by a steamship company to
recover a fine exacted under the Immigration Act.
Page 291 U. S. 421
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Philip O'Reilly, a native of Ireland and resident in the United
States, returned in October, 1928, on plaintiff's vessel, from a
temporary visit abroad. He had neither an unexpired immigration
visa nor a permit to reenter. On his arrival, the immigration
officers ordered his exclusion, but he was eventually admitted by
the Secretary of Labor. Later, the Secretary of Labor fined the
plaintiff in the sum of $1,000 for bringing the alien to the United
States. Having paid under protest, plaintiff brought this action to
recover the amount of the fine upon the ground that it was
illegally imposed. Judgment dismissing the complaint on the
pleadings was affirmed by the Circuit Court of Appeals. 65 F.2d
369, 371. This Court granted certiorari, in view of the conflicting
ruling in the Ninth Circuit.
Rederiaktiebolaget Nordstjernen v.
United States, 61 F.2d 808.
The fine was imposed under § 16 of the Immigration Act of 1924,
43 Stat. 153, 163; 8 U.S.C. § 216. [
Footnote 1] The provision is explicit, and the case falls
directly within its terms. The section makes it unlawful for a
transportation company
Page 291 U. S. 422
to bring to the United States "any immigrant who does not have
an unexpired immigration visa." The alien was a "nonquota
immigrant" within the definition of the statute.
Id., §
4(b), 8 U.S.C. 204(b). If it appears to the satisfaction of the
Secretary of Labor that "any immigrant has been so brought," the
transportation company must pay to the collector of customs the sum
of $1,000, and in addition, for the benefit of the immigrant, an
amount equal to that paid for his transportation. Section 16
further provides that "such sums shall not be remitted or refunded"
unless the Secretary of Labor is satisfied that it could not have
been ascertained, with reasonable diligence, that the person so
transported was an immigrant.
Plaintiff insists that the admission of the alien took the case
out of the statute. Section 16 makes no such exception.
Page 291 U. S. 423
But plaintiff invokes § 13 of the Act of 1924 (
id., 8
U.S.C. § 213) [
Footnote 2]
which, after providing generally in subdivision (a) for the
exclusion of an immigrant who is without an unexpired immigration
visa, creates a particular exception in subdivision (b) to meet the
case of immigrants "who have been legally admitted to the United
States and who depart therefrom temporarily." Immigrants of that
sort may be admitted to the United States "without being required
to obtain an immigration visa." The exception is limited. It
applies only "in such classes of cases and under such conditions as
may be by regulations prescribed." Acting under this authority,
regulations were prescribed which provided for the admission of
such immigrants
Page 291 U. S. 424
without an immigration visa, but only in case they obtained a
permit to reenter under the provisions of § 10 of the Act of 1924.
Id., 8 U.S.C. § 210. [
Footnote 3] In authorizing such permits, the evident
purpose of § 10 was to enable aliens who were domiciled here and
contemplated a temporary absence, to equip themselves with evidence
which would identify them and facilitate their reentry. They could
thus avoid the trouble and delay incident to the procuring of an
immigration visa from a consulate abroad. [
Footnote 4] The permit is
prima facie evidence
of the fact that the alien is returning from a temporary visit. The
regulations prescribed under § 10 and § 13(b) except
Page 291 U. S. 425
aliens who have such permits from the requirement that an
immigration visa must be obtained.
See Immigration Rules
of March 1, 1927; Rule 3, subdiv. F, Pars. 1, 3; subdiv. I, Par. 2.
Valid permits may be presented "in lieu of immigration visas."
Executive Order No. 4813 of February 21, 1928.
These provisions should be read in connection with § 16. And, as
they make the possession of a permit to reenter the equivalent of
an unexpired visa, the permit should be taken to stand in place of
the visa required by § 16. In this view, where the returning alien
has the prescribed permit, no fine can be imposed. This conclusion,
however, gives gives no aid to plaintiff, as the alien in the
instant case had neither visa nor permit. We are unable to agree
with the contention that, where a permit will suffice, § 16 must be
regarded as having no application. As we have said, we think the
proper construction of § 16, taken with § 13, is that the permit is
merely a substitute for the visa, and satisfies the
requirement.
Plaintiff's argument that, under § 13, a discretion is vested in
the Secretary of Labor to admit the returning alien, and that the
exercise of that discretion in his favor tolls the fine, is met by
the provision of subdivision (f) of § 13: "Nothing in this section
shall authorize the remission or refunding of a fine, liability to
which has accrued under § 16." Plaintiff urges that, if the alien
is admitted, no liability for the fine can be said to have
"accrued." But § 16 does not make the liability turn upon the
admissibility or admission of the alien. Whatever may have been the
effect of prior statutory provisions, § 16 of the Act of 1924 makes
it clear that the occasion for the fine is the bringing in of the
alien without an unexpired visa or that which is prescribed as an
equivalent. The question whether the Secretary of Labor had
authority to admit the alien in this instance need not be
considered, for if it were assumed that the Secretary under
Page 291 U. S. 426
§ 13 could admit the alien in his discretion, the fine would
still stand. We agree with the Circuit Court of Appeals in the view
that § 13(f) "preserves the fine against any discretionary
admission."
Equally unavailing is the plea that the fine, as prescribed, is
indivisible, and hence that no fine whatever can be imposed where
the alien is admitted and the transportation company, for that
reason, has not been required to return the passage money. It is
true that the requirement of the payment of the passage money is
for the benefit of the alien, and the reason for that part of the
penalty disappears on the alien's admission. But, although
admission in certain cases is contemplated by § 13, liability to
fine under § 16 is nonetheless maintained. We think it follows
that, in a case of admission, the fine of $1,000 can legally be
imposed without requiring payment of the passage money, and the
fact that the latter has not been required gives plaintiff no
ground for complaint.
Plaintiff was charged with knowledge of the statute and brought
in the alien in violation of its provisions.
Compare Elting v.
North German Lloyd, 287 U. S. 324,
287 U. S.
328-329. The judgment is
Affirmed.
[
Footnote 1]
This section provides:
"Sec. 16. (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 Secretary of Labor
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 Secretary of Labor 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, if the fine was imposed
for bringing an immigrant without an unexpired immigration visa, or
(2) that the individual transported was a quota immigrant, if the
fine was imposed for bringing a quota immigrant the visa in whose
immigration visa specified him as being a nonquota immigrant."
[
Footnote 2]
Section 13 contains the following provisions:
"Sec. 13. (a) No immigrant shall be admitted to the United
States unless he (1) has an unexpired immigration visa or was born
subsequent to the issuance of the immigration visa of the
accompanying parent, (2) is of the nationality specified in the
visa in the immigration visa, (3) is a nonquota immigrant if
specified in the visa in the immigration visa as such, and (4) is
otherwise admissible under the immigration laws."
"(b) In such classes of cases and under such conditions as may
be by regulations prescribed, immigrants who have been legally
admitted to the United States and who depart therefrom temporarily
may be admitted to the United States without being required to
obtain an immigration visa."
"
* * * *"
"(d) The Secretary of Labor may admit to the United States any
otherwise admissible immigrant not admissible under clause (2) or
(3) of subdivision (a) of this section, if satisfied that such
inadmissibility was not known to, and could not have been
ascertained by the exercise of reasonable diligence by, such
immigrant prior to the departure of the vessel from the last port
outside the United States and outside foreign contiguous territory,
or, in the case of an immigrant coming from foreign contiguous
territory, prior to the application of the immigrant for
admission."
"
* * * *"
"(f) Nothing in this section shall authorize the remission or
refunding of a fine, liability to which has accrued under §
16."
[
Footnote 3]
Section 10 provides:
"Sec. 10. (a) Any alien about to depart temporarily from the
United States may make application to the Commissioner General for
a permit to reenter the United States, stating the length of his
intended absence and the reasons therefor. Such application shall
be made under oath, and shall be in such form and contain such
information as may be by regulations prescribed, and shall be
accompanied by two copies of the applicant's photograph."
"(b) If the Commissioner General finds that the alien has been
legally admitted to the United States, and that the application is
made in good faith, he shall, with the approval of the Secretary of
Labor, issue the permit, specifying therein the length of time, not
exceeding one year, during which it shall be valid. The permit
shall be in such form as shall be by regulations prescribed and
shall have permanently attached thereto the photograph of the alien
to whom issued, together with such other matter as may be deemed
necessary for the complete identification of the alien."
"(c) On good cause shown, the validity of the permit may be
extended for such period or periods, not exceeding six months each,
and under such conditions, as shall be by regulations
prescribed."
"
* * * *"
"(f) A permit issued under this section shall have no effect
under the immigration laws except to show that the alien to whom it
is issued is returning from a temporary visit abroad, but nothing
in this section shall be construed as making such permit the
exclusive means of establishing that the alien is so
returning."
[
Footnote 4]
See House Report No. 350, 68th Cong., 1st Sess., p.
18.