A-70865, MARCH 23, 1936, 15 COMP. GEN. 835

A-70865: Mar 23, 1936

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FEES - VISAS - REFUNDS REFUND OF FEES PAID IN CONNECTION WITH VISAS PROPERLY ISSUED TO ILLITERATE ALIENS FOR ADMISSION TO THE UNITED STATES IS UNAUTHORIZED. AS FOLLOWS: THERE IS ENCLOSED A COPY OF A DESPATCH FROM THE AMERICAN VICE CONSUL AT NUEVITAS. WHICH VISAS WERE SUBSEQUENTLY CANCELLED BECAUSE THE ALIENS WERE FOUND TO BE ILLITERATE. THERE IS ALSO ENCLOSED A COPY OF A LETTER FROM THE DEPARTMENT OF LABOR DATED NOVEMBER 19. LAONDES APPLY FOR ADMISSION INTO THE UNITED STATES FOR A TEMPORARY PERIOD AND ARE FOUND ADMISSIBLE EXCEPT FOR THE FACT THAT THEY ARE ILLITERATE. THEY WILL BE ADMITTED UNDER THE NINTH PROVISO TO SECTION 3 OF THE 1917 ACT FOR SUCH PERIOD AS THE EXAMINING OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE DEEM PROPER.

A-70865, MARCH 23, 1936, 15 COMP. GEN. 835

FEES - VISAS - REFUNDS REFUND OF FEES PAID IN CONNECTION WITH VISAS PROPERLY ISSUED TO ILLITERATE ALIENS FOR ADMISSION TO THE UNITED STATES IS UNAUTHORIZED, NOTWITHSTANDING THE ERRONEOUS CANCELLATION OF SAID VISAS, BUT THERE MAY BE ISSUED SAID ALIENS UPON APPLICATION OTHER VISAS FOR THE SAME PURPOSE WITHOUT PAYMENT OF ANY ADDITIONAL FEE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MARCH 23, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF FEBRUARY 6, 1936, AS FOLLOWS:

THERE IS ENCLOSED A COPY OF A DESPATCH FROM THE AMERICAN VICE CONSUL AT NUEVITAS, CUBA, REQUESTING AUTHORITY TO REFUND TO MRS. MIKAIL LAONDES AND MRS. AYOUB MAWAD THE AMOUNT OF $18 COLLECTED FROM THEN IN CONNECTION WITH THE ISSUANCE OF SECTION 3 (2) VISITOR'S VISAS NOS. 7 AND 8 ON OCTOBER 9, 1935, WHICH VISAS WERE SUBSEQUENTLY CANCELLED BECAUSE THE ALIENS WERE FOUND TO BE ILLITERATE.

THERE IS ALSO ENCLOSED A COPY OF A LETTER FROM THE DEPARTMENT OF LABOR DATED NOVEMBER 19, 1935, STATING THAT IF MRS. MAWAD AND MRS. LAONDES APPLY FOR ADMISSION INTO THE UNITED STATES FOR A TEMPORARY PERIOD AND ARE FOUND ADMISSIBLE EXCEPT FOR THE FACT THAT THEY ARE ILLITERATE, THEY WILL BE ADMITTED UNDER THE NINTH PROVISO TO SECTION 3 OF THE 1917 ACT FOR SUCH PERIOD AS THE EXAMINING OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE DEEM PROPER. IT WAS STATED THAT THE NEW YORK AND CUBA MAIL STEAMSHIP COMPANY IS SAID TO HAVE REFUSED THE ALIENS PASSAGE ON THE GROUND THAT THEY ARE ILLITERATE. THE AMERICAN CONSUL GENERAL AT HABANA WAS INFORMED ACCORDINGLY.

IT APPEARS FURTHER THAT UNDER DATE OF DECEMBER 4, 1935, THE AMERICAN VICE CONSUL AT NUEVITAS COMMUNICATED WITH MRS. MAWAD AND MRS. LAONDES, INVITING THEM TO CALL AT THE CONSULATE AND REAPPLY FOR PASSPORT VISAS AND ADVISING THEM OF THE DEPARTMENT OF LABOR'S AUTHORIZATION TO ADMIT THEM FOR SUCH PERIOD OR PERIODS AS EXAMINING OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE DEEM APPROPRIATE, PROVIDED THEY ARE OTHERWISE ADMISSIBLE UNDER THE IMMIGRATION LAWS. UP TO DECEMBER 13, 1935, NEITHER MRS. MAWAD NOR MRS. LAONDES HAD APPLIED FOR PASSPORT VISAS.

IF THE VISAS ISSUED TO THE ABOVE-MENTIONED ALIENS HAD NOT BEEN CANCELLED THEY COULD BE USED BY THE ALIENS. SINCE THE VISAS WERE CANCELLED THE ALIENS, IF STILL DESIROUS OF COMING TO THE UNITED STATES, WILL HAVE TO OBTAIN NEW VISAS. THE OFFICER WHO CANCELLED THE VISAS WAS IN ERROR IN DOING SO, SINCE SUCH CANCELLATION PREVENTED THE ALIENS FROM ATTEMPTING TO PROCEED TO THE UNITED STATES TO APPLY FOR ADMISSION.

THE VICE CONSUL WOULD NOT HAVE BEEN IN ERROR IN GRANTING A VISITOR'S VISA TO AN ILLITERATE ALIEN IF HE COULD NOT REASONABLY HAVE KNOWN THAT THE ALIEN WAS ILLITERATE OR IF, KNOWING OF THE ILLITERACY, HE HAD WARNED THE ALIEN THAT HE WOULD BE SUBJECT TO EXCLUSION AT THE PORT OF ARRIVAL AND AT THE ALIEN'S REQUEST AFTER RECEIVING SUCH NOTICE, HAD ISSUED THE VISA. THE VICE CONSUL WAS IN ERROR IN NOT WARNING THE ALIENS IF HE COULD REASONABLY HAVE BEEN EXPECTED TO KNOW THAT THEY WERE ILLITERATE.

IN VIEW OF THE FACT THAT THE VICE CONSUL MAY HAVE BEEN IN ERROR IN GRANTING THE VISAS AND SINCE HE OR ANOTHER OFFICER WAS IN ERROR IN CANCELLING THE, IT WOULD APPEAR THAT REFUND SHOULD BE MADE.

SINCE THE FEES COLLECTED APPARENTLY HAVE BEEN TURNED INTO THE TREASURY, AUTHORIZATION IS REQUESTED TO INSTRUCT THE APPROPRIATE CONSULAR OFFICER TO MAKE REFUND OF THE AMOUNT COLLECTED.

THE ACT OF FEBRUARY 5, 1917, 39 STAT. 877, REQUIRES THE EXCLUSION OF ALL ALIENS OVER 16 YEARS OF AGE, PHYSICALLY CAPABLE OF READING, WHO CANNOT READ THE ENGLISH LANGUAGE OR SOME OTHER LANGUAGE OR DIALECT, AND PROVIDES FOR READING TESTS BY IMMIGRANT INSPECTORS TO ESTABLISH LITERACY. FURTHER PROVIDES THAT THE COMMISSIONER GENERAL OF IMMIGRATION WITH THE APPROVAL OF THE SECRETARY OF LABOR SHALL ISSUE RULES AND PRESCRIBE CONDITIONS TO CONTROL AND REGULATE THE ADMISSION AND RETURN OF OTHERWISE INADMISSIBLE ALIENS APPLYING FOR TEMPORARY ADMISSION. IT APPEARS FROM THE FOREGOING STATUTE AND FROM YOUR SUBMISSION THAT ILLITERACY, WHILE A BAR TO PERMANENT ADMISSION TO THIS COUNTRY WITH CERTAIN EXCEPTIONS NOT HERE INVOLVED, IS NOT A BAR TO TEMPORARY ADMISSION SUCH AS WAS DESIRED BY THE TWO APPLICANTS IN THIS CASE. CONSEQUENTLY THERE WAS NO DUTY ON THE AMERICAN VICE CONSUL TO REFUSE THE ISSUANCE OF VISAS. THE VISAS HAVING BEEN PROPERLY ISSUED NO REFUND OF THE FEES PAID IN CONNECTION THEREWITH IS AUTHORIZED. AS THE ACTION OF THE VICE CONSUL IN CANCELING THE VISAS WAS ERRONEOUS, NEW VISAS MAY BE ISSUED WITHOUT THE PAYMENT OF ANY ADDITIONAL FEES SHOULD THE SAME PERSONS REAPPLY FOR VISAS FOR THE SAME PURPOSE.