B-128372, AUGUST 27, 1956, 36 COMP. GEN. 166

B-128372, AUGUST 27, 1956, 36 COMP. GEN. 166

IMMIGRATION INSPECTIONS - STATIONS IN FOREIGN COUNTRIES - OVERTIME COMPENSATION PAID BY CARRIERS IMMIGRATION INSPECTION STATIONS ESTABLISHED OUTSIDE THE CONTINENTAL UNITED STATES MAY NOT BE DESIGNATED AS "PORTS OF ENTRY," WHICH TERM IS DEFINED AS PLACES WITHIN THE CONTINENTAL UNITED STATES FOR THE ARRIVAL OF GOODS AND PERSONS FROM FOREIGN COUNTRIES, AND, THEREFORE, THE EXCEPTION IN SECTION 2 OF THE ACT OF MARCH 2, 1931, 5 U.S.C. 342D, WHICH RELIEVES SCHEDULED CARRIERS FROM PAYMENT FOR OVERTIME SERVICES PERFORMED AT DESIGNATED "PORTS OF ENTRY," DOES NOT RELIEVE THEM FROM PAYMENT OF OVERTIME FOR SERVICES PERFORMED AT FOREIGN STATIONS. INSPECTION SERVICES PERFORMED BY EMPLOYEES OF IMMIGRATION AND NATURALIZATION SERVICE AT OFFICES IN FOREIGN COUNTRIES OTHER THAN CANADA AND MEXICO MAY NOT BE REGARDED AS SERVICES PERFORMED IN CONNECTION WITH THE EXAMINATION OF PASSENGERS ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT FOR WHICH OVERTIME COMPENSATION IS AUTHORIZED BY THE ACT OF MARCH 2, 1931, (5 U.S.C. 342C).

TO THE ATTORNEY GENERAL, AUGUST 27, 1956:

IN LETTER OF JUNE 19, 1956, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED OUR DECISION AS TO THE LEGALITY OF A PROPOSED REGULATION, NAMELY, SECTION 231.9, TITLE 8, CODE OF FEDERAL REGULATIONS. THAT PROPOSED REGULATIONS WOULD DESIGNATE AS "PORTS OF ENTRY" CERTAIN PLACES OUTSIDE THE CONTINENTAL UNITED STATES, INCLUDING THE AIRFIELD AT HAMILTON, BERMUDA, SO AS TO EXEMPT CARRIERS FROM THE PAYMENT OF OVERTIME COMPENSATION UNDER THE ACT OF MARCH 2, 1931, AS AMENDED, 5 U.S.C. 342C, 342D, FOR THE INSPECTION OF PASSENGERS DEPARTING FOR THE UNITED STATES BY AIRCRAFT OPERATING ON REGULAR SCHEDULES TO THE SAME EXTENT AS THE CARRIERS WOULD BENEFIT IF THE INSPECTION OCCURRED WITHIN THE CONTINENTAL UNITED STATES. THE QUESTION WAS ALSO PRESENTED AS TO WHETHER SUCH REGULATION LEGALLY COULD BE MADE RETROACTIVE SO AS TO CANCEL ALL BILLS ASSERTED AGAINST THE AIRCRAFT CARRIERS FOR REIMBURSEMENT OF OVERTIME SERVICES RENDERED FROM THE DATE OF THE COMMENCEMENT OF THE PROGRAM OF OVERSEAS AIRCRAFT INSPECTION AT HAMILTON, BERMUDA, IN FEBRUARY 1955.

THE ACT OF MARCH 2, 1931, AS AMENDED, 5 U.S.C. 342C, 342D, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THE ATTORNEY GENERAL SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF IMMIGRATION OFFICERS AND EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O-CLOCK POST MERIDIAN AND EIGHT O-CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR, * * *

THE SAID EXTRA COMPENSATION SHALL BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT TO THE ATTORNEY GENERAL, WHO SHALL PAY THE SAME TO THE SEVERAL IMMIGRATION OFFICERS AND EMPLOYEES ENTITLED THERETO AS PROVIDED IN SECTION 342C OF THIS TITLE * * * PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO THE INSPECTION AT DESIGNATED PORTS OF ENTRY OF PASSENGERS ARRIVING BY INTERNATIONAL FERRIES, BRIDGES, OR TUNNELS, OR BY AIRCRAFT, RAILROAD TRAINS, OR VESSELS ON THE GREAT LAKES AND CONNECTING WATERWAYS, WHEN OPERATING ON REGULAR SCHEDULES.

THE AUTHORITY OF THE ATTORNEY GENERAL TO DESIGNATE AS PORTS OF ENTRY PLACES FOR THE ADMISSION OF ALIENS INTO THE UNITED STATES IS DERIVED FROM THE GENERAL GRANT OF AUTHORITY IN SECTION 103 OF THE ACT OF JUNE 27, 1952, 66 STAT. 173, 8 U.S.C. 1103, AND FROM SECTION 241 OF THE SAME ACT, 8 U.S.C. 1251 (A):

ANY ALIEN IN THE UNITED STATES (INCLUDING AN ALIEN CREWMAN) SHALL, UPON THE ORDER OF THE ATTORNEY GENERAL, BE DEPORTED WHO---

(2) ENTERED THE UNITED STATES * * * AT ANY * * * PLACE OTHER THAN AS DESIGNATED BY THE ATTORNEY GENERAL * * *.

PORTS OF ENTRY WERE EARLY DEFINED BY THE SUPREME COURT OF THE UNITED STATES IN CROSS V. HARRISON, 57 U.S. 164, 196, AS FOLLOWS:

* * * COLLECTION DISTRICTS AND PORTS OF ENTRY ARE NO MORE THAN DESIGNATED LOCALITIES WITHIN AND AT WHICH CONGRESS HAD EXTENDED A LIBERTY OF COMMERCE IN THE UNITED STATES, AND * * * SO MUCH OF ITS TERRITORY AS WAS NOT WITHIN ANY COLLECTION DISTRICT, MUST BE CONSIDERED AS HAVING BEEN WITHHELD FROM THAT LIBERTY. IT IS VERY WELL UNDERSTOOD TO BE A PART OF THE LAWS OF NATIONS, THAT EACH NATION MAY DESIGNATE, UPON ITS OWN TERMS, THE PORTS AND PLACES WITHIN ITS TERRITORY FOR FOREIGN COMMERCE, AND THAT ANY ATTEMPT TO INTRODUCE FOREIGN GOODS ELSEWHERE, WITHIN ITS JURISDICTION, IS A VIOLATION OF ITS SOVEREIGNTY. * * *

PURSUANT TO SECTION 36 OF THE IMMIGRATION ACT OF FEBRUARY 20, 1907, 34 STAT. 898 (SUBSTANTIALLY IDENTICAL WITH SECTION 241 OF THE 1952 ACT), RULES 24 AND 25 OF THE IMMIGRATION REGULATIONS OF JULY 1, 1907, PROVIDE:

RULE 24.

IN ACCORDANCE WITH SECTION 36, THE FOLLOWING ARE NAMED AS CANADIAN BORDER PORTS OF ENTRY FOR ALIENS; * * * (HERE FOLLOWS A LIST OF PLACES IN THE UNITED STATES ALONG THE UNITED STATES-CANADIAN BORDER)

RULE 25.

IN VIEW OF THE AGREEMENT BETWEEN THE VARIOUS STEAMSHIP AND RAILROAD COMPANIES IN THE DOMINION OF CANADA AND THE COMMISSIONER-1GENERAL OF IMMIGRATION OF THE UNITED STATES OF AMERICA, INSPECTION AND ENTRY OF ALIENS INTO THE UNITED STATES FROM FOREIGN COUNTRIES, THROUGH CANADIAN TERRITORY, UNDER THE IMMIGRATION ACT, WILL BE ACCOMPLISHED IN ACCORDANCE WITH THE FOLLOWING PROVISIONS: (A) ALL ALIENS ARRIVING IN CANADA, DESTINED TO THE UNITED STATES, SHALL BE INSPECTED AT ANY ONE OF THE FOLLOWING PORTS: (HERE FOLLOWS A LIST OF PORTS IN CANADA) AND THE HOLDERS OF CERTIFICATES, DULY SIGNED BY THE UNITED STATES COMMISSIONER OF IMMIGRATION FOR CANADA, SHALL BE ENTITLED TO ADMITTANCE TO THE UNITED STATES, AT ANY ONE OF THE PLACES OF ENTRY ALONG THE BORDER THEREOF NAMED IN RULE 24, WITHOUT FURTHER EXAMINATION BY THE UNITED STATES IMMIGRATION OFFICERS AS TO THE RIGHT TO ENTER, UPON THEIR IDENTIFICATION AND THEIR SURRENDER OF SAID CERTIFICATES TO SUCH OFFICIALS.

SIMILAR DESIGNATIONS OF PORTS ARE NOW CONTAINED IN 7 CFR 231.8. THE DISTRICT COURT IN EX PARTE LI DICK, 174 F. 674, 683, REFERS TO SECTION 36 OF THE 1907 ACT AND HOLDS:

IN SO FAR AS THE STATUS OF LI DICK IS CONCERNED * * * HE WAS WHEN FOUND AND APPREHENDED IN PRECISELY THE SAME CONDITION AS TO HIS RIGHT TO BE AND REMAIN IN THE UNITED STATES, AS THOUGH HE HAD THEN PRESENTED HIMSELF AT A PORT OF ENTRY FOR ADMISSION, OR HAD BEEN APPREHENDED BY THE IMMIGRATION OFFICERS IN THE VERY ACT OF CROSSING THE BORDER INTO THE UNITED STATES IN VIOLATION OF LAW AT SOME POINT REMOTE FROM A PORT OF ENTRY, AND THERE STOPPED BY THEM. * * * ( ITALICS SUPPLIED.)

IT IS CLEAR THAT HISTORICALLY "PORTS OF ENTRY" WERE PLACES SO DESIGNATED WITHIN THE CONTINENTAL UNITED STATES. IN EX PARTE FRAGOSO, 11 F.2D 988, THE COURT REFERS TO SECTION 10 OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917, 39 STAT. 874 (SUBSTANTIALLY THE SAME AS SECTION 36 OF THE 1907 ACT AND SECTION 241 OF THE 1952 ACT), WHICH GRANTS AUTHORITY TO THE SECRETARY OF LABOR TO DESIGNATE POINTS FOR ADMISSION OF ALIENS TO THE UNITED STATES, AND HOLDS:

* * * IT IS NOT DISPUTED THAT THE PETITIONER ENTERED THE UNITED STATES AT A POINT ON A LAND BORDER WHICH WAS NOT A PORT OF ENTRY.

THE CASE AT BAR IS SQUARELY WITHIN THE STATUTES FOR THE DEPORTATION OF ALIENS WHO ENTER THE COUNTRY UNLAWFULLY (1) BY ENTERING AT A POINT OTHER THAN AT A DESIGNATED PORT OF ENTRY, * * * ( ITALICS SUPPLIED.)

OUR READING OF THE CITED STATUTES AND CASES INDICATES TO US THAT THE USE OF THE PHRASE IN THE ACTS OF THE CONGRESS OR IN ADMINISTRATIVE REGULATIONS PURSUANT THERETO CONTEMPLATES PLACES WITHIN THE CONTINENTAL UNITED STATES. THIS IS PARTICULARLY TRUE IN THE IMMIGRATION AND NATIONALITY ACT OF JUNE 27, 1952, 66 STAT. 166, 8 U.S.C. 1101-1503. SECTION 205 (D) OF THE ACT PROVIDES:

(D) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO ENTITLE AN IMMIGRANT, IN RESPECT OF WHOM A PETITION UNDER THIS SECTION IS APPROVED, TO ENTER THE UNITED STATES AS A NONQUOTA IMMIGRANT UNDER SECTION 101 (A) (27) (A) IF UPON HIS ARRIVAL AT A PORT OF ENTRY IN THE UNITED STATES HE IS FOUND NOT TO BE ENTITLED TO SUCH CLASSIFICATION, OR TO ENTER THE UNITED STATES AS A QUOTA IMMIGRANT UNDER SECTION 203 (A) (2) OR 203 (A) (3) IF UPON HIS ARRIVAL AT A PORT OF ENTRY IN THE UNITED STATES AS A PREFERENCE QUOTA IMMIGRANT UNDER SECTION 203 (A) (4) IF UPON HIS ARRIVAL AT A PORT OF ENTRY IN THE UNITED STATES HE IS FOUND NOT TO BE ENTITLED TO SUCH PREFERENCE. ITALICS SUPPLIED.)

THE APPLICATION OF THIS SECTION OF THE LAW REQUIRES AN INSPECTION AT A POINT WITHIN THE UNITED STATES. SECTION 221 (E) OF THE 1952 ACT PROVIDES:

EACH IMMIGRANT SHALL SURRENDER HIS IMMIGRANT VISA TO THE IMMIGRATION OFFICER AT THE PORT OF ENTRY, WHO SHALL ENDORSE ON THE VISA THE DATE AND THE PORT OF ARRIVAL, THE IDENTITY OF THE VESSEL OR OTHER MEANS OF TRANSPORTATION BY WHICH THE IMMIGRANT ARRIVED, AND SUCH OTHER ENDORSEMENTS AS MAY BE BY REGULATIONS REQUIRED. ( ITALICS SUPPLIED.)

"PORT OF ENTRY" AS USED IN THIS SECTION CLEARLY CONTEMPLATES A PLACE WITHIN THE UNITED STATES AS IT SPEAKS OF "THE DATE AND THE PORT OF ARRIVAL.' LIKEWISE, A SIMILAR INTERPRETATION MUST BE APPLIED TO THE USE OF THE LANGUAGE IN SECTION 221 (H) OF THE 1952 ACT, WHICH PROVIDES:

NOTHING IN THIS CHAPTER SHALL BE CONSTRUED TO ENTITLE ANY ALIEN, TO WHOM A VISA OR OTHER DOCUMENTATION HAS BEEN ISSUED, TO ENTER THE UNITED STATES, IF, UPON ARRIVAL AT A PORT OF ENTRY IN THE UNITED STATES, HE IS FOUND TO BE INADMISSIBLE UNDER THIS CHAPTER OR ANY OTHER PROVISION OF LAW. ITALICS SUPPLIED.)

SIMILARLY, THE SAME RESULT IS OBTAINED IN CONSIDERING SECTION 240 (A) OF THE 1952 ACT WHICH PROVIDES:

THE ATTORNEY GENERAL SHALL CAUSE TO BE FILED, AS A RECORD OF ADMISSION OF EACH IMMIGRANT, THE IMMIGRANT VISA REQUIRED BY SECTION 221 (E) TO BE SURRENDERED AT THE PORT OF ENTRY BY THE ARRIVING ALIEN TO AN IMMIGRATION OFFICER.

THAT "PORTS OF ENTRY" ARE PLACES WITHIN THE UNITED STATES WE REFER YOU TO CASES HEREINAFTER CITED IN WHICH DEPORTATION WAS HELD TO BE PROPER WHERE ALIENS ENTERED THE UNITED STATES AT POINTS OTHER THAN "PORTS OF ENTRY.' MORINI V. UNITED STATES, 21 F.2D 1004, CERTIORARI DENIED 276 U.S. 23; LIDONICA V. DAVIS, 16 F.2D 532, CERTIORARI DENIED 274 U.S. 744; EX PARTE FRAGOSO, 11 F.2D 989; EX PARTE GRIFFIN, 237 F. 445; EX PARTE HAMAGUCHI, 161 F. 185. OF ASSISTANCE IN UNDERSTANDING THE INTENT OF THE CONGRESS WITH REGARD TO ITS USE OF "PORTS OF ENTRY" IN THE 1952 ACT IS HOUSE REPORT NO. 1365, ACCOMPANYING H.R. 5678, AS SET FORTH ON PAGE 1709 OF 1952 U.S.C. CONG. AND ADM. NEWS:

THE PROVISIONS RELATING TO THE INSPECTION OF ARRIVING ALIENS, CONTAINED IN CHAPTER 4 OF THE BILL, FOLLOW THE GENERAL PATTERN OF THE PRESENT LAW. EVERY ALIEN ARRIVING AT A PORT OF ENTRY MUST BE EXAMINED BY AN IMMIGRATION OFFICER BEFORE HE MAY ENTER, AND SUCH OFFICERS ARE EMPOWERED TO DETAIN THE ALIENS ON BOARD THE ARRIVING VESSEL OR AT THE AIRPORT OF ARRIVAL FOR OBSERVATION IF SUSPECTED OF BEING AFFLICTED WITH MENTAL OR PHYSICAL DEFECTS AND MAY ORDER THE TEMPORARY REMOVAL OF THE ALIEN FOR EXAMINATION AND INSPECTION. * * * ( ITALICS SUPPLIED.)

THE INSPECTION OF ALIENS IN FOREIGN CONTIGUOUS COUNTRIES AND ADJACENT ISLANDS BY IMMIGRATION OFFICERS IS SPECIFICALLY PROVIDED FOR IN SECTION 238 OF THE 1952 ACT. LIKEWISE THE ATTORNEY GENERAL IS AUTHORIZED TO "ESTABLISH OFFICES OF THE ( IMMIGRATION AND NATURALIZATION) SERVICE IN FOREIGN COUNTRIES" AND TO "DETAIL EMPLOYEES OF THE SERVICE FOR DUTY IN FOREIGN COUNTRIES" BY SECTION 103 (A) OF THE 1952 ACT. THE DUTIES OF OFFICERS DETAILED TO FOREIGN COUNTRIES PURSUANT TO THIS AUTHORITY ARE IDENTICAL IN MANY INSTANCES WITH THOSE OF IMMIGRATION OFFICERS AT "PORTS OF ENTRY.' REFERENCE IS HERE MADE TO SECTION 238.1 OF THE CURRENT IMMIGRATION AND NATURALIZATION REGULATIONS, TITLE 8, CODE OF FEDERAL REGULATIONS, WHICH PROVIDES:

ALL INSPECTIONS AND MEDICAL EXAMINATIONS WHICH MAY BE CONDUCTED IN FOREIGN CONTINUOUS TERRITORY OR ADJACENT ISLANDS UNDER THE PROVISIONS OF SECTION 238 OF THE IMMIGRATION AND NATIONALITY ACT, SHALL BE IN ALL RESPECTS SIMILAR TO THOSE CONDUCTED AT PORTS OF ENTRY IN THE UNITED STATES, * * * ( ITALICS SUPPLIED.)

HOWEVER THE OFFICES MAINTAINED IN FOREIGN COUNTRIES MAY BE DESIGNATED, I.E., HEADQUARTERS, STATIONS, OR OTHERWISE, IT IS CLEAR TO US THAT THEY MAY NOT BE DESIGNATED AS "PORTS OF ENTRY.' SO CALLED "PREINSPECTION" AS CONTEMPLATED BY SECTION 238 (A) OF THE 1952 ACT SPECIFICALLY PROVIDED FOR IN 8 CFR 238.11 IS PERFORMED IN FOREIGN CONTIGUOUS COUNTRIES. HOWEVER, SUCH PREEXAMINATION IS NOT BINDING ON THE EXAMINING IMMIGRATION OFFICER AT THE PORT OF ENTRY. SEE 8 CFR 238.11 (C). THE MAINTENANCE OF OFFICES OF THE SERVICE IN FOREIGN COUNTRIES HAS BEEN SANCTIONED BY THE CONGRESS BEGINNING WITH THE ACT OF FEBRUARY 20, 1907, SUPRA. IN THIS CONNECTION, SEE HOWE V. U.S. EX REL SAVITSKY, 247 F. 292.

THAT THE CONGRESS DID NOT INTEND STATIONS OUTSIDE THE UNITED STATES TO REPLACE THE INSPECTION OTHERWISE PROVIDED FOR IN THE 1952 ACT AT DESIGNATED "PORTS OF ENTRY," REFERENCE IS MADE TO SECTION 238 (C), WHICH STATES:

EVERY TRANSPORTATION LINE ENGAGED IN CARRYING ALIEN PASSENGERS FOR HIRE TO THE UNITED STATES FROM FOREIGN CONTIGUOUS TERRITORY OR FROM ADJACENT ISLANDS SHALL PROVIDE AND MAINTAIN AT ITS EXPENSE SUITABLE LANDING STATIONS, APPROVED BY THE ATTORNEY GENERAL, CONVENIENTLY LOCATED AT THE POINT OR POINTS OF ENTRY. * * * ( ITALICS SUPPLIED.)

IT WOULD BE UNREASONABLE TO CONTEND THAT THE CONGRESS INTENDED THAT ALIENS BE EXAMINED AT "PORTS OF ENTRY" OUTSIDE THE UNITED STATES AND STILL REQUIRE CARRIERS TO MAINTAIN APPROVED LANDING STATIONS WITHIN THE UNITED STATES. SECTION 239 OF THE 1952 ACT, 66 STAT. 203, MAKES SPECIAL PROVISION FOR ALIENS ARRIVING BY AIRCRAFT. IT AUTHORIZES THE ATTORNEY GENERAL BY REGULATION TO DESIGNATE AS "PORTS OF ENTRY" FOR ALIENS ARRIVING BY AIRCRAFT ANY OF THE "PORTS OF ENTRY FOR CIVIL AIRCRAFT DESIGNATED AS SUCH IN ACCORDANCE WITH LAW.' IN ORDER TO UNDERSTAND MORE CLEARLY THE INTENT OF THE CONGRESS WITH REGARD TO THIS SECTION, REFERENCE IS AGAIN MADE TO HOUSE REPORT NO. 1365, SUPRA, AS SET FORTH ON PAGE 1725, 1952 U.S.C. CONG. AND ADM. NEWS, AS FOLLOWS:

* * * IT IS NOT INTENDED THAT THE EXERCISE OF SUCH AUTHORITY WILL CONFLICT WITH THE JURISDICTION OF OTHER GOVERNMENT AGENCIES TO REGULATE CIVIL AIR NAVIGATION. THE AUTHORITY GRANTED IS SIMILAR TO THE PRESENT AUTHORITY GRANTED TO THE ATTORNEY GENERAL UNDER SECTION 7 (D) OF THE AIR COMMERCE ACT OF 1926 (44 STAT. 572; 49 U.S.C. 177 (D). * * *

THE AUTHORITY GRANTED THE ATTORNEY GENERAL DOES NOT PERMIT HIS DESIGNATION OF ANY AIRPORT AS A ,PORT OF ENTRY" FOR ALIENS, BUT ONLY THOSE WHICH HAVE BEEN DESIGNATED "PORTS OF ENTRY FOR CIVIL AIRCRAFT.' THE AUTHORITY TO DESIGNATE AIRPORTS AS "PORTS OF ENTRY FOR CIVIL AIRCRAFT" WAS VESTED IN THE SECRETARY OF TREASURY BY SECTION 7 (B) OF THE AIR COMMERCE ACT OF 1926 AND HE IS THEREBY LIMITED TO PLACES IN THE UNITED STATES. FOLLOWS THAT THE ATTORNEY GENERAL UNDER THE 1952 ACT MAY DESIGNATE AS "PORTS OF ENTRY" FOR ALIENS ONLY AIRPORTS WITHIN THE UNITED STATES WHICH HAVE BEEN DESIGNATED BY THE SECRETARY OF THE TREASURY AS "PORTS OF ENTRY" FOR CIVIL AIRCRAFT.

REFERRING TO THE EXCEPTION CONTAINED IN THE PROVISO TO SECTION 2 OF THE ACT OF MARCH 2, 1931, WHICH RELIEVES CERTAIN CARRIERS, INCLUDING AIRCRAFT, FROM PAYMENT FOR OVERTIME SERVICES PERFORMED AT A DESIGNATED "PORT OF ENTRY," WHEN OPERATING ON REGULAR SCHEDULES, SINCE, AS CONCLUDED ABOVE, PLACES OUTSIDE THE UNITED STATES MAY NOT BE DESIGNATED, UNDER EXISTING LAW, AS "PORTS OF ENTRY" FOR THE UNITED STATE FOLLOWS THAT SUCH CARRIERS MAY NOT BE RELIEVED OF THE BURDEN OF OVERTIME PAYMENTS UNDER THE 1931 ACT IF OVERTIME COMPENSATION THEREUNDER BE OTHERWISE PAYABLE TO OFFICERS AND EMPLOYEES OF THE IMMIGRATION SERVICE. THEREFORE, WE CONCLUDE THAT THE PROPOSED REGULATION LEGALLY MAY NOT BE PROMULGATED UNDER EXISTING LAW. THIS RENDERS UNNECESSARY ANY CONSIDERATION OF ITS RETROACTIVE EFFECT.

IRRESPECTIVE OF THE FOREGOING WE ALSO ARE OF THE VIEW THAT PAYMENT OF OVERTIME COMPENSATION UNDER SECTION 1 OF THE ACT OF MARCH 2, 1931, WOULD NOT BE AUTHORIZED TO OFFICERS AND EMPLOYEES PERFORMING SERVICES IN FOREIGN AREAS OTHER THAN CONTIGUOUS COUNTRIES, SUCH AS CANADA, WHERE THE ARRIVAL OF CARRIERS IN THE UNITED STATES AFTER EMBARKATION IS RELATIVELY PROXIMATE. IN OTHER WORDS, WE FEEL THAT INSPECTIONS OF PASSENGERS AT LOCATIONS SO FAR REMOVED FROM THE UNITED STATES AS BERMUDA CANNOT REASONABLY BE VIEWED AS COMING WITHIN THE PURVIEW OF THE LANGUAGE "IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR.' THIS IS IN ACCORD WITH THE OPINION DATED JANUARY 24, 1947, OF THE GENERAL COUNSEL OF THE IMMIGRATION AND NATURALIZATION SERVICE, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER. OF COURSE, THAT CONCLUSION PRECLUDES ANY COLLECTIONS FROM CARRIERS BECAUSE OF OVERTIME SERVICES UNDER THE RELATED CIRCUMSTANCES.