A-24622, OCTOBER 16, 1928, 8 COMP. GEN. 188

A-24622: Oct 16, 1928

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" AND WHERE SUCH FINES HAVE BEEN COLLECTED AND THE ALIEN IS ADMITTED FOR SOME REASON. THERE IS NO AUTHORITY FOR REFUND TO THE STEAMSHIP COMPANY OF THE AMOUNT OF PASSAGE MONEY COLLECTED. WHEREIN WAS DISALLOWED ITS CLAIM UNDER SECTION 9 OF THE ACT OF FEBRUARY 5. WHO WAS HELD TO BE AN ILLITERATE IMMIGRANT. THAT SHE WAS AT FIRST EXCLUDED BECAUSE OF ILLITERACY. A FINE OF $200 WAS ASSESSED AGAINST THE STEAMSHIP COMPANY FOR BRINGING HER TO THE UNITED STATES. ELKA KAPLAN WAS PERMITTED TO LAND AND REMAIN PERMANENTLY IN THE UNITED STATES EVEN THOUGH SHE WAS AN ILLITERATE. IT IS CONSIDERED AND RECOMMENDED THAT PASSAGE MONEY IN THE SUM OF $175 BE RETURNED TO THE DEPOSITOR. AS YOU ARE AWARE. THE CLAIM FOR REFUND OF THE PASSAGE MONEY WAS REFERRED TO THIS OFFICE FOR SETTLEMENT IN ACCORDANCE WITH THE PROCEDURE STATED IN DECISION DATED NOVEMBER 12.

A-24622, OCTOBER 16, 1928, 8 COMP. GEN. 188

IMMIGRATION FINES - REFUNDS SECTION 9 OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917, 39 STAT. 880, 881, PROVIDES THAT THE FINES OF $200 AND AMOUNT OF PASSAGE MONEY COLLECTED FROM STEAMSHIP COMPANIES FOR BRINGING TO THE UNITED STATES ALIENS EXCLUDED BY THE TERMS OF THE IMMIGRATION ACTS, SHALL NOT BE "REMITTED OR REFUNDED," AND WHERE SUCH FINES HAVE BEEN COLLECTED AND THE ALIEN IS ADMITTED FOR SOME REASON, EVEN THOUGH PROPER FOR EXCLUSION UNDER THE TERMS OF THE ACT, THERE IS NO AUTHORITY FOR REFUND TO THE STEAMSHIP COMPANY OF THE AMOUNT OF PASSAGE MONEY COLLECTED.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 16, 1928:

THE BALTIC AMERICA LINE REQUESTED SEPTEMBER 28, 1928, REVIEW OF SETTLEMENT NO 024711/1), DATED MAY 26, 1928, WHEREIN WAS DISALLOWED ITS CLAIM UNDER SECTION 9 OF THE ACT OF FEBRUARY 5, 1917, 39 STAT. 880, 881, FOR REFUND OF $175 PASSAGE MONEY COLLECTED FROM IT FOR BRINGING TO THE UNITED STATES ELKA KAPLAN ON BOARD THE STEAMSHIP ESTONIA ON FEBRUARY 2, 1923, WHO WAS HELD TO BE AN ILLITERATE IMMIGRANT, AND, UNDER SECTION 3 OF SAID ACT OF FEBRUARY 5, 1917, 39 STAT. 875, 878, NOT SUBJECT TO ADMISSION TO THE UNITED STATES.

IT APPEARS FROM THE MEAGER FACTS SUBMITTED TO THIS OFFICE IN THE MATTER THAT THE BALTIC AMERICA LINE BROUGHT TO THE UNITED STATES THE ALIEN, ELKA KAPLAN, AND THAT SHE WAS AT FIRST EXCLUDED BECAUSE OF ILLITERACY, AS PROVIDED IN SECTION 3 OF THE ACT OF FEBRUARY 6, 1917, AND A FINE OF $200 WAS ASSESSED AGAINST THE STEAMSHIP COMPANY FOR BRINGING HER TO THE UNITED STATES, THERE BEING COLLECTED FROM SAID COMPANY, ALSO, $175 AS THE AMOUNT OF PASSAGE MONEY FROM HER INITIAL POINT OF DEPARTURE TO THE PORT OF ARRIVAL; THIS PURSUANT TO THE PROVISIONS OF SECTION 9 OF THE SAID ACT OF FEBRUARY 5, 1917, 39 STAT. 881. FOR SOME REASON NOT DISCLOSED, ELKA KAPLAN WAS PERMITTED TO LAND AND REMAIN PERMANENTLY IN THE UNITED STATES EVEN THOUGH SHE WAS AN ILLITERATE. THE STEAMSHIP COMPANY SUBMITTED CLAIM FOR REFUND OF THE FINE AND THE PASSAGE MONEY, BUT THE CHAIRMAN OF THE GENERAL BOARD OF REVIEW, DEPARTMENT OF LABOR, REPORTED APRIL 30, 1928, THAT---

THIS CASE COMES BEFORE THE BOARD OF REVIEW FOR RECONSIDERATION IN FINE PROCEEDINGS, WITH ESPECIAL REFERENCE TO DISPOSITION OF PASSAGE MONEY.

AS THIS ALIEN HAS BEEN PERMITTED TO LAND AND REMAIN PERMANENTLY IN THE UNITED STATES, IT IS CONSIDERED AND RECOMMENDED THAT PASSAGE MONEY IN THE SUM OF $175 BE RETURNED TO THE DEPOSITOR, TO WIT, THE BALTIC AMERICA LINE.

AND IN LETTER DATED JULY 28, 1928, THE COMMISSIONER GENERAL OF IMMIGRATION WROTE A REPRESENTATIVE OF THE STEAMSHIP LINE AS FOLLOWS:

WITH REFERENCE TO YOUR INTEREST IN THE FINE PROCEEDINGS INSTITUTED AGAINST THE STEAMSHIP ESTONIA ON ACCOUNT OF THE ALIEN ELKA KAPLAN, I WISH TO ADVISE YOU THAT THE DEPARTMENT HAS GIVEN FURTHER CONSIDERATION TO THIS MATTER BUT HAS BEEN UNABLE TO MAKE ANY CHANGE IN ITS PREVIOUS DECISION IMPOSING A FINE IN THE SUM OF $200.00.

AS YOU ARE AWARE, THE DEPARTMENT DIRECTED THAT THE SUM OF $175.00 (REPRESENTING THE AMOUNT PAID FOR PASSAGE) BE RETURNED TO THE STEAMSHIP COMPANY.

THE CLAIM FOR REFUND OF THE PASSAGE MONEY WAS REFERRED TO THIS OFFICE FOR SETTLEMENT IN ACCORDANCE WITH THE PROCEDURE STATED IN DECISION DATED NOVEMBER 12, 1923, WHEREIN WAS AUTHORIZED TO BE ESTABLISHED A SPECIAL FUND ACCOUNT FOR REFUND IN PROPER CASES OF PASSAGE MONEY COLLECTED FROM STEAMSHIP COMPANIES.

SECTION 9 OF THE ACT OF FEBRUARY 5, 1917, PROVIDED IN PERTINENT PART THAT

* * * IT SHALL ALSO BE UNLAWFUL FOR ANY SUCH PERSON TO BRING TO ANY PORT OF THE UNITED STATES ANY ALIEN WHO IS EXCLUDED BY THE PROVISIONS OF SECTION THREE OF THIS ACT BECAUSE UNABLE TO READ * * * AND IF IT SHALL APPEAR TO THE SATISFACTION OF THE SECRETARY OF LABOR THAT THESE DISABILITIES MIGHT HAVE BEEN DETECTED BY THE EXERCISE OF REASONABLE PRECAUTION PRIOR TO THE DEPARTURE OF SUCH ALIENS FROM A FOREIGN PORT, SUCH PERSON SHALL PAY TO THE COLLECTOR OF CUSTOMS OF THE CUSTOMS DISTRICT IN WHICH THE PORT OF ARRIVAL IS LOCATED THE SUM OF $200, AND IN ADDITION A SUM EQUAL TO THAT PAID BY SUCH ALIEN FOR HIS TRANSPORTATION FROM THE INITIAL POINT OF DEPARTURE, INDICATED IN HIS TICKET, TO THE PORT OF ARRIVAL; FOR EACH AND EVERY VIOLATION OF THIS PROVISION, SUCH LATTER SUM TO BE DELIVERED BY THE COLLECTOR OF CUSTOMS TO THE ALIEN ON WHOSE ACCOUNT ASSESSED. AND NO VESSEL SHALL BE GRANTED CLEARANCE PAPERS PENDING THE DETERMINATION OF THE QUESTION OF THE LIABILITY TO THE PAYMENT OF SUCH FINES, OR WHILE THE FINES REMAIN UNPAID, NOR SHALL SUCH FINES BE REMITTED OR REFUNDED: * * *

IT APPEARS FROM A LETTER OF JULY 3, 1922, FROM THE DEPARTMENT OF LABOR TO THE SECRETARY OF THE TREASURY, WHICH IS QUOTED IN PART IN 3 COMP. GEN. 612, THAT IT HAS BEEN THE PRACTICE "IN THE EVENT AN ADMINISTRATIVE FINE IS RULED TO HAVE BEEN INCURRED, THE AMOUNT OF THE ALIEN'S PASSAGE, DEPOSITED BY THE RESPONSIBLE VESSEL PRIOR TO CLEARANCE, IS RETURNED TO THE ALIEN HIMSELF IF DEPORTATION HAS BEEN AFFECTED, AND TO THE LINE IF THE ALIEN IS PERMANENTLY ADMITTED, WHETHER OR NOT THIS ADMISSION IS ALIEN IS PERMANENTLY ADMITTED, WHETHER OR NOT THIS ADMISSION IS CONDITIONAL, SUCH AS UNDER BOND," BUT IT WAS NOT NECESSARY FOR THE PURPOSES OF THE DECISION IN SAID CASE FOR THIS OFFICE TO CONSIDER THE CORRECTNESS OF THE ADMINISTRATIVE RULE. THE POINT IS SQUARELY PRESENTED IN THIS CASE WHERE IT APPEARS THAT THE ALIEN WAS PERMITTED TO ENTER THE UNITED STATES EVEN THOUGH SHE WAS ILLITERATE WITHIN THE EXCLUSION PROVISIONS OF SECTION 3 OF THE IMMIGRATION ACT OF 1917.

THE ABOVE QUOTED PROVISION FROM SECTION 9 OF THE IMMIGRATION ACT OF 1917 DOES NOT MAKE ANY DISTINCTION BETWEEN THE $200 FINE AND THE FINE IN THE AMOUNT OF PASSAGE MONEY, IN SO FAR AS REMISSION OR REFUNDMENT IS CONCERNED, BUT UNEQUIVOCALLY STATES SUCH FINES SHALL NOT BE REMITTED OR REFUNDED. AS HEREINBEFORE SHOWN, THE SECRETARY OF LABOR EXERCISED HIS JURISDICTION IN DETERMINING THAT THE STEAMSHIP COMPANY HAD VIOLATED SECTION 3 OF THE IMMIGRATION ACT OF 1917, AND, PURSUANT THERETO, HE IMPOSED THE FINE OF $200 AND THE FINE OF THE AMOUNT OF THE PASSAGE MONEY. THE FACT THAT JURISDICTION EXISTED TO IMPOSE THE FINE DOES NOT NECESSARILY JUSTIFY THE EXERCISE OF DISCRETION IN REFUNDING A FINE EVEN WHERE THE STATUTE DOES NOT PROVIDE, AS IN THIS CASE, THAT SUCH FINES SHALL NOT BE REMITTED OR REFUNDED. SEE ROTHSCHILD V. UNITED STATES, 62 CT.CLS. 297.

EVEN IF THE PASSAGE MONEY IS NOT RETURNED TO A DEPORTED ALIEN OR AN ALIEN WHO IS ADMITTED TO THE UNITED STATES IN THE EXERCISE OF A DISCRETION OF THE PROPER ADMINISTRATIVE OFFICERS, IT DOES NOT FOLLOW THAT EITHER THE FINE OF $200, OR THE FINE IN THE AMOUNT OF THE PASSAGE MONEY, MAY BE RETURNED TO THE STEAMSHIP COMPANY. IN FACT, AS STATED, SECTION 9 OF THE IMMIGRATION ACT OF 1917 PROVIDES THAT SUCH FINES SHALL NOT BE REMITTED OR REFUNDED. THE SITUATION IS DIFFERENT WHERE IT IS DETERMINED THAT THERE HAS BEEN NO VIOLATION OF THE STATUTE, AND THE FINE OF $200, TOGETHER WITH THE FINE IN THE AMOUNT OF PASSAGE MONEY, HAS BEEN PAID, SO THAT THE VESSEL MAY HAVE CLEARANCE, AND PENDING THE DETERMINATION OF THE ADMISSIBILITY OF THE ALIEN WHO IS SUBSEQUENTLY ADJUDGED TO BE ADMISSIBLE.

UPON THE EVIDENCE NOW BEFORE THE OFFICE IT APPEARS THAT THE STEAMSHIP COMPANY VIOLATED SECTION 3 OF THE IMMIGRATION ACT OF 1917, AND THAT THE FINES WERE PROPERLY IMPOSED AND COLLECTED PURSUANT TO SECTION 9 OF SAID IMMIGRATION ACT. IT FOLLOWS FROM THE EXPRESS TERMS OF SUCH ACT THAT SUCH FINES MAY NOT BE REMITTED OR REFUNDED. THE DISALLOWANCE OF THE CLAIM MUST BE AND IS AFFIRMED.