Matter of S/T "Grand Zenith"

• Decision Date: 19 August 1977
• Docket Number: Interim Decision #2637,SFR-10/28.333
• Citation: 16 I&N Dec. 460
• Court: U.S. DOJ Board of Immigration Appeals
• Parties: MATTER OF S/T "GRAND ZENITH" In Fine Proceedings

16 I&N Dec. 460

MATTER OF S/T "GRAND ZENITH"

In Fine Proceedings

Interim Decision #2637

SFR-10/28.333

Board of Immigration Appeals

Decided by Board August 19, 1977

(1) Appellant carrier paid off and discharged the involved crewman without first obtaining the consent of the Attorney General as required by section 256 of the Immigration and Nationality Act. The Service fined the carrier under two provisions of the Act—section 256 for the unauthorized pay-off and discharge, and under section 254(a)(2), for failure to detain on board a crewman who was refused a conditional landing permit.

(2) The fine imposed under section 256 of the Act was proper because the crewman was paid off and discharged without first receiving the consent of the Attorney General.

(3) Since the carrier was fined for discharging the crewman under section 256, it was not proper to assess a fine under section 254(a)(2) because in these circumstances the Service is restricted from imposing two fines for the same misfeasance by the carrier.

In re: S/T "GRAND ZENITH," which arrived at the port of Los Angeles, California, from foreign on August 11, 1976. Alien crewman involved: RONG-YIH KUO

Basis for Fine: Act of 1952—Section 254(a)(2)—[8 U.S.C. 1284(a)(2)] Section 256 [8 U.S.C. 1286]

ON BEHALF OF APPELLANT: Charles M. Haid, Jr., Esquire Lillick, McHose & Charles 500 Sansome Street San Francisco, California 94111

BY: Milhollan, Chairman; Wilson, Appleman, and Maguire, Board Members

This is an appeal from a decision of the District Director at San Francisco, California, dated December 7, 1976, wherein a fine of $1,000 ($2,000 mitigated to the extend of $1,000) was imposed on the vessel's agents, Norton, Lilly, and Company, under section 254(a)(2) of the Immigration and Nationality Act for failure to detain on Board an alien crewman who was refused a conditional landing permit, and under section 256 of the Act for unlawfully paying off and discharging the alien crewman without first having received the consent of the Attorney General.

The basic facts of record are these: (1) the vessel arrived at Los Angeles and was inspected by the immigration authorities; (2) the master of the vessel was ordered to detain Rong-Yih Kuo because his passport was not in order; (3) the vessel proceeded to Pittsburgh, California, where the master requested the vessel's local agent to arrange for the seaman's repatriation to Taiwan; (4) on August 27, 1976, the above-captioned alien was presented to the Immigration Service in San Francisco for processing his repatriation; he had previously been paid off and discharged from the vessel by the master; and (5) the appellant did not obtain the consent of the United States Immigration Service prior to discharging the alien crewman here involved. He was repatriated to Taiwan without expense to the Government.

We have determined that the fine imposed pursuant to section 256 of the Act was properly imposed. Under the terms of section 256 of the statute, the carrier has an absolute duty not to pay off or discharge any alien crewman employed on board a vessel or aircraft arriving in the United States without first having obtained the consent of the Attorney General. The element essential to establish a violation is termination of the crewman's employment by an affirmative act of the parties responsible for the vessel's operation—including the agents and masters, who are charged with knowledge of the pertinent regulations, Matter of HMS "Bounty," 10 I. & N. Dec....