B-9772, MAY 13, 1940, 19 COMP. GEN. 923

B-9772, MAY 13, 1940, 19 COMP. GEN. 923

IMMIGRATION ACT VIOLATIONS - DISPOSITION OF AMOUNTS COLLECTED MONEY COLLECTED FROM A TRANSPORTATION COMPANY PURSUANT TO SECTION 16 (B) OF THE IMMIGRATION ACT OF 1924, 43 STAT. 163, FOR AN IMMIGRANT'S BENEFIT AND BECAUSE THE COMPANY BROUGHT HER TO THE UNITED STATES WITHOUT AN UNEXPIRED IMMIGRATION VISA, AND WHICH REPRESENTS THE AMOUNT PAID BY THE IMMIGRANT FOR TRANSPORTATION TO THE UNITED STATES, MAY NOT BE REFUNDED TO THE COMPANY BECAUSE OF A COMPROMISE SETTLEMENT BETWEEN IT AND THE IMMIGRANT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF LABOR, MAY 13, 1940:

I HAVE YOUR LETTER OF APRIL 19, 1940, AS FOLLOWS:

FINE PROCEEDINGS WERE INSTITUTED AGAINST THE ITALIAN LINE UNDER SECTION 16 OF THE IMMIGRATION ACT OF 1924 (43 STAT., 153), ON ACCOUNT OF THE ALIEN MARIA LO CONTI, WHO ARRIVED AT THE PORT OF NEW YORK, FEBRUARY 3, 1938, ON THE VESSEL CONTE DI SAVOIA, THE SAID ALIEN HAVING BEEN FOUND, AT THE TIME OF ARRIVAL, TO BE AN IMMIGRANT NOT IN POSSESSION OF AN IMMIGRATION VISA. NOTICE OF LIABILITY FOR FINE WAS SERVED ON THE AGENTS OF THE LINE ON APRIL 7, 1938. THE SAID NOTICE, HOWEVER, WAS DRAWN IN THE AMOUNT OF ONLY $1,000 INSTEAD OF THE AMOUNT OF THE FINE PLUS PASSAGE MONEY. CONSEQUENTLY, IT WAS NECESSARY TO ISSUE A SUPPLEMENTAL NOTICE OF LIABILITY COVERING $74.50, THE AMOUNT OF PASSAGE MONEY INVOLVED, WHICH NOTICE WAS SERVED ON FEBRUARY 23, 1939.

THE TOTAL AMOUNT OF THE FINE, $1,074.50, INCLUDING THE PASSAGE MONEY, WAS COLLECTED AND DEPOSITED TO THE CREDIT OF "168696, DEPOSITS TO SECURE PAYMENT OF FINES AND PASSAGE MONEY, IMMIGRATION AND NATURALIZATION SERVICE," BY THE COLLECTOR OF CUSTOMS, NEW YORK, N.Y., UNDER CERTIFICATE OF DEPOSIT NO. 9, DATED JULY 11, 1939. PRIOR TO FINAL DETERMINATION BY THE DEPARTMENT THAT A FINE HAD BEEN INCURRED, THE AMOUNT INVOLVED WAS SECURED BY BOND.

NOTICE OF THE FACT THAT THE FINE HAD BEEN IMPOSED BY THE DEPARTMENT WAS FORWARDED TO YOUR OFFICE ON NOVEMBER 14, 1938.

THE ALIEN, MARIA LO CONTI, THROUGH HER FATHER AS GUARDIAN AD LITEM, SUED THE ITALIAN LINE TO SECURE REIMBURSEMENT FOR EXPENSES TO BE INCURRED IN APPLYING AT AN AMERICAN CONSULATE FOR AN IMMIGRATION VISA. RELYING UPON THE FACT THAT THE ORIGINAL NOTICE OF LIABILITY FOR FINE DID NOT INCLUDE PASSAGE MONEY, THE ITALIAN LINE, WITH THE PERMISSION OF THE MUNICIPAL COURT OF THE CITY OF NEW YORK, COMPROMISED THE CLAIM AND FURNISHED BOTH THE EXCLUDED ALIEN AND HER FATHER THIRD-CLASS ROUND TRIP TICKETS FOR PASSAGE FROM NEW YORK TO NAPLES AND RETURN.

SECTION 16 OF THE IMMIGRATION ACT OF 1924 REQUIRES THAT IN ADDITION TO THE FINE PRESCRIBED, THERE BE PAID A SUM EQUAL TO THAT PAID BY THE IMMIGRANT FOR TRANSPORTATION FROM THE INITIAL POINT OF DEPARTURE INDICATED IN THE TICKET TO THE PORT OF ARRIVAL, SUCH SUM TO BE DELIVERED BY THE COLLECTOR OF CUSTOMS TO THE IMMIGRANT ON WHOSE ACCOUNT THE FINE WAS ASSESSED.

THE ITALIAN LINE, THROUGH ITS ATTORNEY, MR. DANIEL A. CAPUTI, FIFTH AVENUE AT 50TH STREET, NEW YORK, N.Y., REQUESTED REMISSION OF THE PASSAGE MONEY. IN SUPPORT OF THIS REQUEST, EVIDENCE WAS SUBMITTED CONSISTING OF A RELEASE SIGNED BY GIUSEPPE LO CONTI, THE GUARDIAN, AND CERTIFIED COPY OF ORDER OF THE MUNICIPAL COURT OF THE CITY OF NEW YORK, AUTHORIZING AND EMPOWERING SAID RELEASE IN CONNECTION WITH THE COMPROMISE EFFECTED BY THE SAID LINE. THE DOCUMENTS SUBMITTED ARE FORWARDED HEREWITH FOR YOUR CONSIDERATION WITH THE REQUEST THAT WHEN THEY HAVE SERVED THEIR PURPOSE THEY BE RETURNED TO THE ITALIAN LINE, THROUGH ITS ATTORNEY, MR. CAPUTI.

THE DEPARTMENT, UPON CONSIDERATION OF THE REPRESENTATIONS MADE, REACHED THE CONCLUSION THAT WHERE A VIOLATION OF THE AFOREMENTIONED SECTION OF LAW OCCURS AND THE ALIEN IS DEPORTED, THERE IS NO ALTERNATIVE BUT TO INCLUDE IN THE PENALTY A SUM EQUAL TO THE PASSAGE MONEY PAID, AND THAT, WHILE IN THE INSTANT CASE THE ORIGINAL NOTICE OF LIABILITY ADDRESSED TO THE ITALIAN LINE DID NOT INCLUDE A REFERENCE TO PASSAGE MONEY, THAT FACT DOES NOT RELIEVE THE LINE OF ITS LIABILITY UNDER THE STATUTE. IT WAS FURTHER CONCLUDED THAT THE PRIVATE ARRANGEMENTS BETWEEN THE LINE AND THE ALIEN UNDER WHICH THE PASSAGE MONEY HAS, IN EFFECT, ALREADY BEEN REFUNDED, IS A MATTER WHICH, LEGALLY SPEAKING, CANNOT EFFECT THE OPERATION OF THE STATUTE.

SINCE THE COMPROMISE SETTLEMENT INCLUDED THE FURNISHING OF TRANSPORTATION TO THE IMMIGRANT TO THE POINT OF INITIAL DEPARTURE, REFUND OF PASSAGE MONEY, OR THE EQUIVALENT THEREOF, WAS ACCOMPLISHED, ALTHOUGH SUCH REFUND WAS NOT MADE IN THE MANNER PRESCRIBED UNDER THE STATUTE. IT WOULD SEEM THAT AS A MATTER OF EQUITY, THE AMOUNT OF PASSAGE MONEY NOW ON DEPOSIT IN THE TRUST FUND RECEIPT ACCOUNT SHOULD BE REFUNDED TO THE ITALIAN LINE RATHER THAN TO THE ALIEN, FOR THE REASON THAT IF PAYMENT IS MADE TO THE ALIEN IT WOULD, IN EFFECT, CONSTITUTE A DUPLICATE REFUND.

YOU ARE, THEREFORE, REQUESTED TO ADVISE WHAT PROCEDURE SHOULD BE FOLLOWED IN THIS INSTANCE.

IT IS PROVIDED IN SECTION 16 (B) OF THE IMMIGRATION ACT OF 1924 (43 STAT. 163), THAT WHEN IT APPEARS TO THE SATISFACTION OF THE SECRETARY OF LABOR THAT ANY IMMIGRANT HAS BEEN BROUGHT INTO THE UNITED STATES BY ANY TRANSPORTATION COMPANY WITHOUT AN UNEXPIRED IMMIGRATION VISA, SUCH TRANSPORTATION COMPANY "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 POINT OF ARRIVAL, SUCH LATTER SUM TO BE DELIVERED BY THE COLLECTOR OF CUSTOMS TO THE IMMIGRANT ON WHOSE ACCOUNT ASSESSED.'

THE PASSAGE MONEY REFUND THUS REQUIRED IS NOT FOR THE PURPOSE OF PROVIDING THE ALIEN WITH FUNDS TO DEFRAY THE COST OF HIS RETURN VOYAGE, AS WOULD SEEM TO BE ASSUMED BY THE PENULTIMATE PARAGRAPH OF YOUR LETTER. PROVISION FOR SUCH RETURN TRANSPORTATION IS PROVIDED FOR IN SECTION 18 OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917, 39 STAT. 887, AS FOLLOWS:

THAT ALL ALIENS BROUGHT TO THIS COUNTRY IN VIOLATION OF LAW SHALL BE IMMEDIATELY SENT BACK, IN ACCOMMODATIONS OF THE SAME CLASS IN WHICH THEY ARRIVED, TO THE COUNTRY WHENCE THEY RESPECTIVELY CAME, ON THE VESSELS BRINGING THEM, UNLESS IN THE OPINION OF THE SECRETARY OF LABOR IMMEDIATE DEPORTATION IS NOT PRACTICABLE OR PROPER. THE COST OF THEIR MAINTENANCE WHILE ON LAND, AS WELL AS THE EXPENSE OF THE RETURN OF SUCH ALIENS, SHALL BE BORNE BY THE OWNER OR OWNERS OF THE VESSELS ON WHICH THEY RESPECTIVELY CAME * * *. SEE IN THIS CONNECTION SECTION 18 OF THE ACT OF 1924. AS A MATTER OF FACT, UNDER THE TERMS OF THE QUOTED SECTION A FINE IS FOR ASSESSMENT AGAINST ANY TRANSPORTATION COMPANY WHICH SHALL "MAKE ANY CHARGE FOR THE RETURN OF ANY SUCH ALIEN.' A SIMILAR PROVISION WAS CONTAINED IN THE PRIOR ACT OF FEBRUARY 20, 1907, 34 STAT. 904.

IT IS STATED IN YOUR LETTER THAT SINCE THE COMPROMISE SETTLEMENT WHICH WAS EFFECTED BETWEEN THE TRANSPORTATION COMPANY AND THE IMMIGRANT IN THE PRESENT CASE INCLUDED THE FURNISHING OF TRANSPORTATION TO SAID IMMIGRANT TO THE POINT OF INITIAL DEPARTURE, REFUND OF PASSAGE MONEY OR ITS EQUIVALENT WAS ACCOMPLISHED ALTHOUGH NOT IN THE MANNER PRESCRIBED BY THE STATUTE, AND THAT IT WOULD, THEREFORE, SEEM AS A MATTER OF EQUITY THAT THE $74.50 PAID BY THE COMPANY TO THE COLLECTOR OF CUSTOMS TO COVER THIS PASSAGE MONEY SHOULD BE REFUNDED TO THE COMPANY "FOR THE REASON THAT IF PAYMENT IS MADE TO THE ALIEN IT WOULD, IN EFFECT, CONSTITUTE A DUPLICATE REFUND.' THIS POSITION IS NOT CONSIDERED TENABLE. AS ABOVE NOTED THE TRANSPORTATION COMPANY IS OBLIGATED UNDER EXISTING LAW (1) TO FURNISH WITHOUT CHARGE RETURN TRANSPORTATION IN ACCOMMODATIONS OF THE SAME CLASS IN WHICH THE ALIEN ARRIVED, AND (2) TO PAY TO THE COLLECTOR OF CUSTOMS FOR DELIVERY TO THE IMMIGRANT A SUM EQUAL TO THAT PAID BY SUCH IMMIGRANT FOR HIS TRANSPORTATION FROM THE INITIAL POINT OF DEPARTURE. IF THE TRANSPORTATION COMPANY FURNISHED RETURN TRANSPORTATION TO THE ALIEN HERE IN QUESTION IN ACCOMMODATIONS OF THE SAME CLASS IN WHICH SHE ENTERED, THEN SAID COMPANY HAS PERFORMED THE FIRST OF THESE OBLIGATIONS. CLEARLY, HOWEVER, IT DID NOT LIQUIDATE THEM BOTH BY MERELY PERFORMING ONE OF THEM.

THE FACT THAT TRANSPORTATION WAS FURNISHED FOR THE ALIEN'S FATHER, ALSO, AND FOR A ROUND TRIP RATHER THAN ONE WAY, CANNOT BE MADE THE BASIS OF CLAIM FOR REFUND OF THE AMOUNT, $74.50, HERE INVOLVED. THE TRANSPORTATION COMPANY'S OBLIGATIONS UNDER THE LAWS OF THE UNITED STATES ARE DEFINITE AND FIXED AND ARE NOT AFFECTED BY ANY COMPROMISE SETTLEMENT BETWEEN THE ALIEN AND THE TRANSPORTATION COMPANY. IT APPEARS FROM THE HISTORY OF THE LEGISLATION HERE INVOLVED THAT THE OBLIGATIONS OF THE COMPANY TO THE ALIEN WERE PURPOSELY MADE RIGID AND DEFINITE SO THAT THERE WOULD BE AVOIDED THE POSSIBILITY THAT TRANSPORTATION COMPANIES MIGHT INDUCE ALIENS, WHO IN MANY CASES ARE IGNORANT OF THEIR RIGHTS UNDER THE LAWS OF THE UNITED STATES, TO ACCEPT LESS THAN THEY ARE ENTITLED TO RECEIVE UNDER SAID LAWS. SEE IN THIS CONNECTION HOUSE REPORT NO. 95, 64TH CONGRESS, ST SESSION, PAGES 6 AND 7; ALSO SENATE REPORT NO. 352, 64TH CONGRESS, ST SESSION, PAGES 9 AND 10.

WITH RESPECT TO REMISSION OF ASSESSMENTS MADE UNDER THE TERMS OF SECTION 16 (B) OF THE IMMIGRATION ACT OF 1924, IT IS PROVIDED IN SUBSECTION (C) OF SAID SECTION THAT:

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 NON-QUOTA IMMIGRANT.

IT DOES NOT APPEAR TO BE CONTENDED IN THE PRESENT CASE THAT THE PASSAGE MONEY IN QUESTION IS FOR REMISSION TO THE TRANSPORTATION COMPANY PURSUANT TO THE TERMS OF THIS SUBSECTION.

UNDER THE FACTS AND CIRCUMSTANCES OF THIS CASE I HAVE TO ADVISE THAT NO BASIS IS SHOWN TO EXIST FOR MAKING REFUND OF THE $74.50 IN QUESTION TO THE ITALIAN LINE. THE TRANSPORTATION COMPANY MAY BE ADVISED THAT DISPOSITION OF THE AMOUNT COLLECTED FOR PASSAGE MONEY MUST BE IN STRICT ACCORDANCE WITH THE PROVISIONS OF THE ACT OF 1924 UNDER WHICH IT WAS COLLECTED.