A-25284, MARCH 9, 1929, 8 COMP. GEN. 480

A-25284: Mar 9, 1929

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UPON THE SHOWING THAT THE SAID SUMS WERE PAID BECAUSE OF AN ERRONEOUS DEMAND MADE UPON THE ALIEN BY UNITED STATES IMMIGRATION OFFICERS. 5 COMP. 1929: I HAVE YOUR LETTER OF DECEMBER 19. WHICH SUM WAS COLLECTED FROM HIM BY THE AMERICAN CONSUL AT NIAGARA FALLS. THE COMPTROLLER GENERAL'S ATTENTION IS DIRECTED TO THE FACT THAT THE CONSUL AT NIAGARA FALLS ALSO COLLECTED FROM MR. SINCE BOTH THE $1.00 AND $9.00 FEES WERE COLLECTED BY THE CONSUL BECAUSE OF THE SAME ERRONEOUS DEMAND UPON MR. THE CASE IS AGAIN REFERRED TO YOU FOR DECISION AS TO WHETHER IT WOULD BE PROPER TO REFUND BOTH OF THE FEES WHICH WERE COLLECTED THROUGH THE FAULT OF THE IMMIGRATION OFFICIALS AT BUFFALO. IT APPEARS THAT THE FEES IN QUESTION WERE COLLECTED FOR AN IMMIGRATION VISA.

A-25284, MARCH 9, 1929, 8 COMP. GEN. 480

IMMIGRATION VISAS - REFUND OF FEES THE $1 FEE FOR EXECUTING AN APPLICATION FOR A NONQUOTA IMMIGRATION VISA AND THE $9 FEE FOR ISSUING THE VISA COLLECTED BY A UNITED STATES CONSULAR OFFICER FROM AN ALIEN UNDER THE PROVISIONS OF SECTIONS 2 (H) AND 7 (H) OF THE IMMIGRATION ACT OF MAY 26, 1924, 43 STAT. 153, MAY BE REFUNDED, UPON THE SHOWING THAT THE SAID SUMS WERE PAID BECAUSE OF AN ERRONEOUS DEMAND MADE UPON THE ALIEN BY UNITED STATES IMMIGRATION OFFICERS. 5 COMP. GEN. 306 DISTINGUISHED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MARCH 9, 1929:

I HAVE YOUR LETTER OF DECEMBER 19, 1928 (FA 811.11101 ROBINSON, FREDERICK ORAN) AS FOLLOWS:

THE DEPARTMENT REFERS TO YOUR COMMUNICATION OF DECEMBER 5, 1928, NO. A- 25284, IN WHICH YOU AUTHORIZED A REFUND OF $9.00 TO RICHARD B. ROBINSON, 157 TREMONT AVENUE, KENMORE, NEW YORK, WHICH SUM WAS COLLECTED FROM HIM BY THE AMERICAN CONSUL AT NIAGARA FALLS, CANADA, FOR A NONQUOTA IMMIGRATION VISA FOR HIS MINOR SON, BECAUSE OF THE ERRONEOUS DEMAND UPON HIM BY THE AMERICAN IMMIGRATION OFFICERS AT BUFFALO (NOT NIAGARA FALLS), NEW YORK.

SECTION 2 OF THE ACT OF JUNE 4, 1920 (41 STAT. 750) READS AS FOLLOWS:

"FROM AND AFTER THE FIRST DAY OF JULY, 1920, THERE SHALL BE COLLECTED AND PAID INTO THE TREASURY OF THE UNITED STATES QUARTERLY A FEE OF ONE DOLLAR FOR EXECUTING EACH APPLICATION OF AN ALIEN FOR A VISA AND NINE DOLLARS FOR EACH VISA OF THE PASSPORT OF AN ALIEN: * * *.'

THE COMPTROLLER GENERAL'S ATTENTION IS DIRECTED TO THE FACT THAT THE CONSUL AT NIAGARA FALLS ALSO COLLECTED FROM MR. ROBINSON THE FEE OF $1.00 PRESCRIBED BY THE SECTION OF THE LAW ABOVE CITED FOR THE EXECUTION OF A VISA APPLICATION FOR HIS MINOR SON AS WELL AS THE $9.00 PRESCRIBED BY THE SAME ACT FOR THE ISSUANCE OF A VISA.

SINCE BOTH THE $1.00 AND $9.00 FEES WERE COLLECTED BY THE CONSUL BECAUSE OF THE SAME ERRONEOUS DEMAND UPON MR. ROBINSON BY THE AMERICAN IMMIGRATION OFFICIALS AT BUFFALO, NEW YORK, FOR A NONQUOTA IMMIGRATION VISA FOR HIS MINOR SON, THE CASE IS AGAIN REFERRED TO YOU FOR DECISION AS TO WHETHER IT WOULD BE PROPER TO REFUND BOTH OF THE FEES WHICH WERE COLLECTED THROUGH THE FAULT OF THE IMMIGRATION OFFICIALS AT BUFFALO.

IT APPEARS THAT THE FEES IN QUESTION WERE COLLECTED FOR AN IMMIGRATION VISA, $9 FOR THE VISA AND $1 FOR THE APPLICATION, UNDER SECTIONS 2 (H) AND 7 (H) OF THE IMMIGRATION ACT OF 1924, 43 STAT. 153, AND NOT FOR THE APPLICATION FOR A VISA AND THE VISA OF THE PASSPORT OF AN ALIEN UNDER SECTION 2 OF THE ACT OF JUNE 4, 1920, 41 STAT. 750. HOWEVER, THE SAME PRINCIPLES WOULD APPEAR APPLICABLE, SO FAR AS THE REFUND OF SUCH FEES IS CONCERNED, AS THOUGH THE FEES HAD BEEN COLLECTED UNDER SECTION 2 OF THE ACT OF JUNE 4, 1920.

NO DISTINCTION AS TO THE DISPOSITION OF FEES IS MADE OR INDICATED IN THE CITED SECTIONS OF THE IMMIGRATION ACT OF 1924 OR IN SECTION 2 OF THE ACT OF JUNE 4, 1920 (QUOTED IN PART BY YOU), BETWEEN THE $1 FEE FOR THE APPLICATION BY AN ALIEN FOR A VISA AND THE $9 FEE FOR THE VISA, SUCH AS IS MADE IN SECTION 1 OF THE ACT OF JUNE 4, 1920, WITH REFERENCE TO THE $1 FEE FOR EXECUTING AN APPLICATION FOR A PASSPORT AND THE $9 FEE FOR THE PASSPORT FOR CITIZENS, ETC., OF THE UNITED STATES, SAID SECTION PROVIDING FOR THE RETENTION BY STATE OFFICIALS OF THE $1 FEE WHERE APPLICATIONS FOR PASSPORTS ARE EXECUTED BY THEM. IT WAS THIS PROVISION IN SECTION 1 OF THE ACT THAT WAS THE BASIS FOR THE DECISION OF AUGUST 18, 1922, 2 COMP. GEN. 129, THAT ONLY THE PASSPORT FEES OF $9 COLLECTED IN THE VIRGIN ISLANDS, AND NOT THE APPLICATION FEES OF $1, SHOULD BE PAID INTO THE TREASURIES OF SUCH ISLANDS UNDER THE PROVISIONS OF THE ACT OF JULY 1, 1922, 42 STAT. 788, THE $1 APPLICATION FEES BEING FOR RETENTION BY THE OFFICIAL DESIGNATED TO EXECUTE THE PASSPORTS. NO SUCH CONSIDERATIONS ARE INVOLVED IN THE PRESENT MATTER OF THE FEES PAID UNDER THE CITED SECTIONS OF THE IMMIGRATION ACT OF 1924, BY REASON OF AN UNNECESSARY AND ERRONEOUS DEMAND ON AN ALIEN FOR A VISA, DUE TO THE FAULT OF THE GOVERNMENT'S AGENTS, AND WHERE, AS HERE, THE $9 VISA FEE IS PROPERLY REFUNDABLE, NO REASON APPEARS WHY THE APPLICATION FEE OF $1 SHOULD NOT ALSO BE REFUNDED, THE UNITED STATES BEING IN NO BETTER POSITION AS TO THE RETENTION OF THE ONE THAN THE OTHER, BOTH FEES HAVING BEEN COLLECTED BY A UNITED STATES OFFICIAL FOR DEPOSIT IN THE UNITED STATES TREASURY. THE SITUATION HERE INVOLVED IS TO BE DISTINGUISHED FROM THAT APPEARING IN DECISION OF OCTOBER 30, 1925, 5 COMP. GEN. 306, WHERE IT WAS HELD THAT WHILE FEES FOR VISAING IDENTIFICATION AFFIDAVITS FOR CHINESE MERCHANTS SHOULD BE REFUNDED, WHERE INSUFFICIENT TIME REMAINED TO MAKE USE OF SUCH AFFIDAVITS BEFORE JULY 1, 1924, THE FEES PAID FOR EXECUTING THE AFFIDAVITS WERE NOT REFUNDABLE. THAT CASE THE AFFIDAVITS WERE RENDERED USELESS BY REASON OF THE PROVISIONS OF THE ACT OF MAY 26, 1924, 43 STAT. 153, RESTRICTING IMMIGRATION, BUT THE SERVICE OF EXECUTING THE AFFIDAVITS WAS PERFORMED UPON THE VOLUNTARY REQUESTS OF THE ALIENS, AND FOR THEIR OWN PURPOSES, AND WAS NOT DUE TO ANY ERRONEOUS OR UNWARRANTED DEMANDS ON THEM BY THE UNITED STATES OFFICIALS, AS IN THE PRESENT CASE.

ACCORDINGLY, YOU ARE ADVISED THAT THE $1 APPLICATION FEE PAID BY MR. ROBINSON MAY BE REFUNDED, AS WELL AS THE $9 VISA FEE. SEE 3 COMP. GEN. 115, AS TO PROCEDURE.