and by the terms of the agreement, the carrier must therefore be treated in the same manner that the carrier would be treated which brings an alien directly to a port in the United States. Had the carrier brought the alien directly to a port in the United States, fine would have been imposed since the carrier knew or could have ascertained by the exercise of reasonable diligence that the subject alien was an immigrant not in possession of an unexpired immigration visa. In the Matter of Plane CF TPH TCA 208, F-4847 (April 12, 1950, B. I. A.), the Board of Immigration Appeals held that where an applicant destined to Canada was ultimately to proceed to the United States after transacting business in Canada which would require him to remain there for an unknown period of time, a violation of section 16 of the Immigration Act of 1924 for bringing an immigrant not in possession of an unexpired immigration visa was not established. We distinguish the instant case from the case above cited in that, the alien herein was in fact destined to the United States while the alien in the above-cited case was in fact destined to Canada for the purpose of transacting business there. Fine must therefore be imposed in the instant case. The case of Johnson v. Keating (supra) cited by the respondent, was overruled in U. S. ex rel. Polymeris v. Trudell, 284 U. S. 279 (1932) where the court stated: A returning alien cannot enter unless he has either an immigration visa or a return permit. In the instant case the alien, who must be regarded as applying for admission at a port of the United States, was not in possession of an immigration visa or an unexpired reentry permit. The decision in Rederiaktiebolaget v. U. S. (supra), was overruled by the case of Hamburg American Line v. U. S., 65 F. (2d) 369 (C. C. A. 2, 1933, aff'd 291 U. S. 420 (1934)). Inasmuch as it appears the alien obtained a visa in Canada at no unusual expense, and was not required to leave the United States to adjust her status, it cannot be held that her journey was fruitless and passage money will not be imposed as part of the penalty. Findings of Fact: Upon the basis of all the evidence presented, it is found: (1) That the S. S. Nea Hellas arrived at Halifax, Nova Scotia, on July 24, 1949, having on board, the alien passenger, M. C. K., an immigrant destined, in fact to the United States. (2) That the subject alien, a native of Cyprus and citizen of Great Britain, applied for admission to the United States for permanent residence, and did not present an immigration visa. (3) That the alien was excluded by a Board of Special Inquiry as an immigrant not in possession of an unexpired immigration visa and that she did not appeal the excluding decision. (4) That the respondent knew or could have ascertained by the exercise of reasonable diligence that the subject alien was an immigrant not in possession of an unexpired immigration visa. Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded: (1) That under section 16 of the Immigration Act of 1924, a penalty has been incurred. Recommendation: It is recommended that fine be imposed. The amount involved is $1,000. BEFORE THE BOARD (July 14, 1950) Discussion: This matter is before us by reason of an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization dated April 21, 1950, wherein fine in the amount of $1,000 was imposed against I. H. Mathers and Sons, Ltd., Agents for the S. S. Nea Hellas, which vessel arrived at Halifax, Nova Scotia, on July 24, 1949, for violation of section 16 of the Immigration Act approved May 26, 1924 (8 U. S. C., 216). The specific violation is "bringing to the United States by water an immigrant alien who does not have an unexpired immigration visa." The passenger involved in this case testified that she was born in Kyssonerga, Paphos, Cyprus, on August 15, 1902, and that she is a British subject. She further testified that she was in the United States from April 4, 1928, to November 1937 and from May 27, 1938, to May 7, 1948, on which latter mentioned date she departed from New York ex S. S. Nea Hellas for the purpose of visiting abroad. At the time of departure she was accompanied by her husband, a citizen of the United States. Prior to departure from Detroit, Michigan, this passenger applied for and obtained a permit to reenter the United States which permit was delivered to her by the United States consul in the Island of Cyprus. The validity of such permit extends for a period of 1 year. The subject passenger embarked at Piraeus, Greece, on July 10, 1949, on the return portion of contract at which time it is indicated that the agent for the line did not inspect the permit to reenter the United States. A day after departure from Genoa, Italy, the purser's office inquired as to whether or not the subject alien was in possession of a permit as herein referred to and it was on that occasion that it was discovered that the validity of the said permit had expired. Thereupon it was suggested that the subject disembark at Lisbon, Portugal, and communications were directed by telegraph to the United States and Canadian consuls both of whom boarded the ship in Lisbon. It is alleged, "The Canadian consul told me that as long as I was going to Canada I could apply for a visa in Canada.” Upon arrival in Halifax, Nova Scotia, and subsequent to inspection by the Canadian authorities the subject passenger was interrogated by the United States immigrant inspector at that port and on July 25, 1949, she appeared before the board of special inquiry which board found her inadmissible to the United States in that she was an immigrant not in possession of a valid immigration visa. Section 13 of the Immigration Act approved May 26, 1924 (8 U. S. C. 213 (a)), provides that no immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa. Section 10 of the Immigration Act approved May 26, 1924 (8 U. S. C. 210), provides among other things (a) Any alien about to depart temporarily from the United States may make application to the Commissioner of Immigration and Naturalization for a permit to reenter the United States, stating the length of his intended absence, and the reasons therefor. Section 30 of the act of June 28, 1940 (8 U. S. C. 451), provides: “Any alien seeking to enter the United States who does not present a visa (except in emergency cases defined by the Secretary of State), a reentry permit, *** shall be excluded from admission to the United States." Section 16 of the Immigration Act approved May 26, 1924 (supra), provides in part as follows: (a) It shall be unlawful for any person, including any transportation company or the owner, master, agent, charterer, or consignee of any vessel, to bring to the United States by water from any place outside thereof (1) any immigrant who does not have an unexpired immigration visa * * *. (b) If it appears to the satisfaction of the Attorney General that any immigrant has been so brought, such person, or transportation company, or the master, agent, owner, charterer, or consignee of any such vessel, 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 on his ticket, to the port of arrival, * * (c) Such sums shall not be remitted or refunded, unless it appears to the satisfaction of the Attorney General that such persons, and the owner, master, agent, charterer, or 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 ***. Subsequent to the arrival of the vessel at Halifax, Nova Scotia, the Canadian authorities paroled this passenger and she subsequently obtained a consular immigration visa from the American consul in Canada in order that she could proceed to her home in the United States. In a report dated August 11, 1949, from the Acting District Director of Immigration and Naturalization, St. Albans, Vt., it is set forth that the alien passenger was in fact destined to the United States but she was not in possession of a valid immigration visa and the validity of the reentry permit which she held had expired prior to her embarkation in Europe. If the line's agent at the port of embarkation had examined the reentry permit, and reasonable diligence would have so required, it could have been ascertained quite readily that this passenger was inadmissible to the United States because she was not in possession of the requisite documents pursuant to statute. Counsel in behalf of the line involved relies upon a decision of this Board in the Matter of Plane CF TFH TCA 208, decided April 12, 1950, File F-4847, unreported. That decision was distinguished by the Assistant Commissioner of Immigration and Naturalization in his decision as aforesaid from the present case in that the alien passenger there involved one, E-▬▬▬ S▬▬▬▬▬ D—, was in fact destined to Canada for business prior to entering the United States and that fact was known prior to embarkation and his passage to Canada was booked accordingly. It was not until after completion of his business in Canada that he proposed to proceed to the United States. This Board affirms the distinguishing features of the D-case from that in the present case. After careful consideration of all of the evidence of record as well as all of the representations of counsel both on the protest and on the appeal, it is the conclusion of this Board that a violation of section 16 of the Immigration Act approved May 26, 1924 (supra), has been established in that the passenger transported was an immigrant not in possession of an unexpired immigration visa or valid permit to reenter the United States which fact could have been ascertained by the exercise of reasonable diligence, the line's agent having failed to inspect the permit to reenter the United States, the validity of which permit had expired prior to the alien's embarkation and, further, that the alien was not in possession of an unexpired immigration visa. Order: It is ordered, That the appeal from the decision of the Assistant Commissioner of Immigration and Naturalization be and the same is hereby dismissed. IN THE MATTER OF G▬▬ In VISA PETITION Proceedings VP-377773 Decided by Board May 19, 1950 Decided by Board January 27, 1950 Citizenship-Expatriation-Foreign military service-Section 401 (c) of the Nationality Act of 1940-Voluntary service-Evidence. A native and citizen of Italy, naturalized here in 1929, was found to have established on the basis of the evidence presented that his service in the Italian Armed Forces in 1941 was of an involuntary nature (it having been previously found that he had not expatriated himself in 1931-32 by taking an oath of allegiance in connection with his service during that period in the Italian Armed Forces). [See, 3, I. & N. Decs. 558, 586, 701, and 890.] (Also see, 41 Op. Atty. Gen. No. 16, May 8, 1951.) BEFORE THE BOARD (May 19, 1950) Discussion: This case is before us on motion of counsel for reconsideration of our previous order, dated January 27, 1950, wherein we dismissed the appeal from a finding of expatriation below. Counsel now presents additional documentary evidence, together with another brief, in support of his prayer for an order modifying the above order approving the visa petition for petitioner's wife and six children. The facts may briefly be summarized as follows: On March 1, 1941, petitioner was recalled by the Italian Army and served until October 1, 1941. It was previously determined that petitioner's prior taking of an oath of allegiance and consequent military service from October 1, 1931, to October 1, 1932, occurred involuntarily and did not serve to divest him of his United States citizenship. Because petitioner was granted a 2 months' convalescent leave upon initial recall (petitioner was again allegedly suffering from the nervous stomach condition, which had troubled him during his military service in 1931), petitioner alleged that he believed that he would not actually be inducted for service. During this period of 2 months, petitioner testified that he protested to the American consul at Palermo, where he was al |