The opinion
Interim Decision #2122
MATTER OF M/V " FERROL"
In Fine Proceedings
SPM-1012.89
Decided by Board January 31,1972
Liability to fine is incurred under section 254(a) of the Immigration and
Nationality Act for failure to detain and deport an alien crewman ordered to
remain on board the vessel, where the crewman in question was admitted in
transit without visa to proceed to the vessel, joined the vessel as a crewman,
and thereafter absconded after having been ordered detained on board.
BASIS FOR FINE: Act of 1952 — Section 254(aX2) [8 U.S.C. 1284].
In re: MN "FERROL," which arrived at the port of Toledo, Ohio, from foreign,
on June 23, 1071. Alien crewman involved! LITMAN° R. L. ROASCIO
ON BEHALF OF CARRIER: ON BEHALF OF SERVICE:
Thomas A. Clure, Esquire Charles Gordon
Suite 700 Torrey Building General Counsel
Duluth, Minnesota 55802 (Brief filed)
These administrative fine proceedings were instituted on the
basis of a charge that the carrier had failed to detain the above-
named alien crewman aboard the vessel at all times despite the
fact that the Service had refused him conditional landing privi-
leges and ordered him detained on board. The case is before this
Board upon certification by the District Director, St. Paul, Minne-
sota, of his order that the Notice of Intention to Fine be with-
drawn and that the proceedings be terminated.
There is no dispute as to the basic facts of this matter. The alien
named above arrived by aircraft at the port of Boston, Massachu-
setts, on June 23, 1971. At the time of his arrival, a Form I-95A,
Crewman's Landing Permit, was given to him bearing the nota-
tion "Detained on board, adm. in transit to M/V Ferrol T.R.W.O.V."
The alien proceeded in transit to the M/V "Ferrol" which had
arrived at Toledo, Ohio, on the same date. When he arrived at the
vessel, a Form 1-410, Receipt for Crew List, was executed showing
that Roascio, Luciano, cook, arrived in Toledo TRWOV, was or-
dered detained on board the vessel. The Form I-410 bore a
stamped "Notice" that the crewmen listed on the Form under
"Detentions" were "to remain on board the vessel at all U.S.
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interim i..?ecision yrzrzz
ports on this voyage" and that failure to detain on board would
result in fine proceedings.
The vessel proceeded from Toledo, Ohio, to: Duluth, Minnesota,
where the Form 1-410 was stamped, . "Received June 25, 1971
Immigration and Naturalization Service, Duluth, Minnesota."
There is a hand-written notation on the form that the alien was on
board on June 29, 1971, but was not on board on June 30, 1971. A
report of an immigrant inspector at Duluth, Minnesota,. shows
that the vessel was boarded on June 30, 1971, after a phone call
from the ship's agent that Roascio and two other crewmen were
missing.
An affidavit by the vessel's Master confirms that/ while in
Toledo, Ohio, notice was received that the thip's cook had to leave
and return to his native Italy; and on June. 23, 1971, Roascio was
placed on the vessel by the ship's agent in Italy to replace the
departed cook; that since Roascio was without a visa, the Master
was informed that Roascio was not to leave the vessel, and both
the immigration officer and the ship's officer told Roascio that he
could not leave the ship. Crewmen were placed on guard on the
dock, both at Toledo and Duluth; and upon arrival of the vessel at
Duluth, an immigration officer told him (the Master) to keep
Roascio on board the vessel. No one, however, told him to hire a
private guard.
Roascio and two other crewmen were last seen on board the
vessel at 11:20 p.m. on June 29, 1971. They are believed to have left
the ship when the first guard awoke the second guard to replace
him at midnight. Thereafter, the Master cooperated with immigra-
tion officers, furnishing them information he had available as to
Roascio's possible whereabouts and his seaman's book.
The officer-in-charge, Duluth, Minnesota, recommended that a
fine in the sum of $1,000 be imposed and that no mitigation be .
allowed. His proposed order notes a possible question as to
whether section 254(a) of the Immigration and Nationality Act
contemplates only alien crewmen who are on board the vessel at
the time of its arrival in the United States, or whether it also
embraces alien crewmen who join the ship thereafter. He resolves
the issue by the following reasoning.
Section 254(a) directs an agent or Master, among others, of a
vessel arriving in the United States, to detain an alien crewman
on board after inspection, unless a conditional permit to land
temporarily has been granted under section 252 of the Act, under
penalty of $1,000 fine for each alien crewman as to whom there is a
failure of detention. The language "arriving in the United States
from any place outside thereof' primarily differentiates between
vessels in foreign trade and those engaged solely in coastwise or
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Interim Decision #2122
intra-United States trade. Liability under section 254(a)(2) has
been upheld without exception in eases where the violation oc-
curred after the vessel had "arrived" and had sailed coastwise to
other ports. Matter of M/V "Oceanic Amity", 13 I. & N. Dec. 418
(BIA, 1969), affirms the statutory right ro reinspect at subsequent
ports of arrival. Part (8) of section 254(a) imposes a penalty for
failure to deport an alien crewman whether that requirement is
imposed "before or after the crewman is permitted to land tempo-
rarily." In the view of the officer-in-charge, the conclusion is
inescapable that the words "arriving in the United States," pre-
ceding both parts (2) and (3) of section 254(a), must have wider
application than to the point of time of the vessel's first arrival in
the United States. The M/V "Ferrol" was, therefore, an "arriving"
vessel, and subject to section 254(a) requirements. Since Roascio
was a crewman under a detention order at the time he absconded,
there was liability to fine under section 254(a)(2).
The District Director at St. Paul, Minnesota, has disapproved
the recommendation of the officer-in-charge at Duluth. He has
concluded that there is statutory authority to reinspect only a
nonimmigrant -crewman. It is his view that, while a nonimmigrant
may have his classification changed in the United States under
the procedure set forth in section 248 of the Act (8 1258),
this is not permitted under section 238(d) of the Act (8 U.S.C. 1228)
to one admitted under the transit without visa privileges. Accord-
ingly, he concluded that the action taken on June 23, 1971, at
Toledo, Ohio, "changing" the alien's nonimmigrant classification to
that of a.rionimmigrant crewman under paragraph 15(D) of section
101(a), 8 U.S.C. 1101, was contrary to the Act and without force.
Since he could not be given a change of classification to that of a
nonimmigrant crewman, the District Director found that there
was no statutory authority to order him detained on board
pursuant to section 252 of the Immigration and Nationality Act (8
U.S.C. 1282). Hence, he found that liability to a fine under section
254 of the Act had not been incurred.
The District Director's order points out that he has at least one
other fine proceeding pending, involving the same factual situa-
tion, except that the reinspection occurred at a port of entry in
another district. The District Director also points out that his
decision contermands procedures followed in at least two other
districts of the Service. He has, therefore, certified the case to this
Board for review.'
1 The General Counsel has pointed out in his brief that the District Director's
decision actually evuntennancla existing Servicc wide procedures.
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Interim Decision #2122
The issue presented is whether liability to an administrative
fine under section 254(a) of the Immigration and Nationality Act is
incurred for failure to detain and deport an alien crewman ordered
to remain aboard a vessel, where the crewman in question was
admitted in transit without visa to proceed to the vessel, joined
the vessel as a crewman, and thereafter absconded after having
been ordered detained on board. As indicated in the brief submit-
ted by the General Counsel, Immigration and Naturalization
Service, the problem thus presented is a novel one.
The General Counsel has asked this Board to take administra-
tive notice of the fact that alien crewmen are frequently admitted,
usually in an emergent situation, to replace the loss of a crewman
on a vessel in the 'United States, in the manner that took place in
this instance. From time to time in the past, such cases have
arrived at the Board, but the sole issue raised has been that of
mitigation. We have also had cases presented in such situations
where the question has been whether an air carrier has incurred
liability to a fine under section 273(a) of the Act (8 U.S.C. 1323), for
bringing to the United States without visas passengers who were
in fact crewmen destined to a specific vessel in this country, but
the issue in those cases was solely whether or not the carrier
bringing them to the United States was party to an agreement
under section 238 of the Immigration and Nationality Act and
whether the aliens involved were presented as being brought
therunder.
In this case, Roascio was a crewman by occupation. On arrival
at Boston, he was admitted in transit for the sole purpose of
pursuing his calling as a crewman by ,proceeding directly to the
M/V "Ferrol." The document reflecting that arrival was the docu-
ment that the Service uses for crewmen, a Form I-95A "Crewman
Landing Permit." When Roascio arrived at. Toledo, Ohio, and
joined his vessel, the purpose of his transit• without visa admission
was fulfilled. The document given him at Boston no longer had
any meaning or validity. It was a nullity. Roascio no longer had
any TRWOV status to be "changed" to some other status.
Toledo is a designated port of entry for all aliens, 8 CFR
100.4(c)(2) (District 24). At Toledo, Roascio was subjected to immi-
gration inspection. It was found that he was a crewman, but that
he had no crewman visa or other documents. It was determined
that he would be allowed to pursue his duties as a crewman on
board the vessel, but would not be permitted to go ashore. There is
no doubt that he was a member of the crew from that time on. He
was added to the crew list, as reflected by the Form 1-410, the
affidavit of the Master, and from the appearance of his name on
the crew list submitted at the time of the departure of the vessel
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Interim Decision #2122
from Duluth on June 2, 1971. The Master was fully on notice of the
alien's status as a crewman who must be detained on board and of
the liability to a fine for failure to detain him.
When Roascio submitted himself to the immigrant inspector at
Toledo, he was seeking a new admission to the United States just
as surely as if he had proceeded into Canada or some other
country and thereafter sought reentry on the WV "Ferrol." The
immigrant inspector found, as had a previous inspector at Boston,
that he could not be permitted to land for lack of proper documen-
tation. As is customary, he was permitted to remain on board his
vessel, without landing privileges. Yet in doing this the Service
was hardly continuing his transit without visa privileges, which
had already been fulfilled, nor was it according him any other
status than that precisely delineated in the notice to the carrier.
It does not seem reasonable that the United States should be
disadvantaged in its administration of the laws governing the
control of alien crewmen, because it recognizes the possibility that
emergent situations may require replacement of a crewman on a
vessel in United States waters. Clearly, the carrier involved in this
case was not prejudiced by the procedure followed. On the con-
trary, not only was Roascio permitted to proceed from Boston,
Massachusetts, to Toledo, Ohio, without any immigration docu-
ments, and join the vessel, but the carrier was fully and immedi-
ately put upon notice that Roascio had been inspected as a
member of the crew at Toledo, Ohio, and Ghat he lacked documents
and could not be admitted. Indeed, the affidavit of the Master, and
even the brief submitted in support of the carrier's notice of
protest to imposition of the fine, reveal complete awareness of this
fact.
Conceivably, the Service could have said to Roascio at Boston,
Massachusetts, "You cannot be admitted here, but you can go to
Canada and from there proceed to Toledo and seek entry on your
vessel." This would have avoided the issue and arrived at the same
result. Yet this would have been a narrow aproach to the law,
meriting criticism of Service action as unresponsive to the needs of
the carrier.
In summary, it is the Service position that when Roascio
completed his transit and arrived at Toledo, the moment he
stepped on board the WV "Ferrol," his transit privileges were
completed in all aspects. He no longer had any transit without visa
status "to be changed" into some other ninimmigrant status. He
had no immigration status whatsoever at that hypothetical point
in time. What took place thereafter was a new 'application for
admission as a crewman at the port of entry into the United
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Interim Decision #2122
States, just as surely as if his transit had taken him across the
border into Canada.
A somewhat analogous situation exists where an alien enters
the United States in transit in pursuit of his calling as a crewman
to join a vessel in the United States, but after entry abandons his
calling as a crewman and later seeks adjustment of status under
section 245 of the Immigration and Nationality Act, a relief barred
to one who entered as a crewman. This Board has consistently
held that since it was the intent of Congress to bar from adjust-
ment all occupational crewmen who entered by reason of their
occupation, the significant question is whether the alien entered in
pursuit of that calling. The technical recording of entry in transit
has not been permitted to defeat the intent of the statute, Matter
of Concaves, 10 I. & N. Dec. 277 (BIA, 1963); and Matter of Tzimas,
10 L & N. Dec. 101 (BIA, 1962). By analogy, the fact that Roascio
was permitted to transit the United States without a visa in
pursuit of his calling as a crewman should not be permitted to
defeat the Congressional intent for a rigid control of crewmen
entries, and liability for a fine where an alien, occupationally a
crewman, is allowed to debark in violation of the law.
In the light of the foregoing, we agree with the General Counsel
that the District Director's order was incorrect and that liability to
a fine has been incurred in this instance. However, as the General
Counsel has noted, because of the District Director's order termi-
nating proceedings he has not ruled on the recommendation that
there be no mitigation of the fine. We will, accordingly, remand the
case for consideration by the District Director of this aspect of the
matter.
ORDER: It is ordered that the District Director's decision of
August 31, 1971, be withdrawn and that the matter be remanded to
that official for appropriate action not inconsistent with the
foregoing opinion.
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