Citations
- 19 F.2d 773
Full opinion text
SWAN, Circuit Judge.
The plaintiff steamship company brought to the port of New York in June, 1923, an alien of Italian nationality, who claimed to be returning from a temporary visit abroad to an unrelinquished American domicile. The American consul at Naples, the port of embarkation, had affixed a visa to his passport and noted thereon, “Exception to quota for Italy, returning to domicile in United States.” The quota for Italy had been filled, and the immigration officials, after a hearing at the port of New York, denied the alien’s claim to readmission and ordered his deportation. His testimony was that he had resided here from March, 1920, to November, 1921, had then returned to Italy to bring his family, but had been unable to do so on account of his child’s illness. The Secretary of Labor notified the plaintiff of its liability to a fine, and declined to remit the same. The fine was paid under protest to the defendant, in October, 1923, and this suit was forthwith instituted to recover it.
The fine was imposed under the provisions of section 6 of the Act of May, 1921, as amended by Act approved May 11, 1922. Section 6 provided:
“That it shall be unlawful for any person, including any transportation company * * * to bring to the United States * * * any alien not admissible under the terms of this act or regulations made thereunder, and if it appears to the satisfaction of the Secretary of Labor that any alien has been so brought, such person or transportation company * * * shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $200 for each alien so brought. * * * Such fine shall not be remitted or refunded unless it appears to the satisfaction of the Secretary of Labor that such inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, such person, or the owner * * * of the vessel, prior to the departure of the vessel. * * 42 Stat. 540 (Comp. St. § 4289%dd).
Admissibility as an exception to the quota was claimed by the alien under section 2 (d) of the aforesaid act (Comp. St. § 4289%a) and the regulations promulgated pursuant thereto, the material provisions reading as '.follows:
Section 2 (d) : “ * * * Provided further, that aliens returning from a temporary-visit abroad, * * * may, if otherwise admissible, be admitted notwithstanding [the exhaustion of the quota].”
Regulations, § 2, subd. (a): “Aliens lie-turning from a Temporary Visit Abroad. — A ‘temporary visit abroad’ as contemplated by the second proviso to subdivision (d) of section 2 of the act, shall be construed to mean an absence in any foreign country (without relinquishment of domicile) not exceeding six months in duration. An alien who remains abroad in excess of six months shall be presumed to have abandoned his domicile in the United States. However, such presumption may be overcome by the production of evidence to the contrary, satisfactory to the appropriate immigration officer.”
The contention of the plaintiff is that the alien was given by said regulation the privilege of presenting evidence to overcome the presumption of abandonment of his United States domicile; that since there were no immigration officials in Naples in the years 1921-1923, such evidence could only be presented to an immigration official after the 'alien had arrived in this country (as is stated in the letter of the Commissioner of Immigration which appears in the record), and hence he -yas entitled to come to a port of the United States for the purpose of presenting such evidence, and that consequently the plaintiff had the privilege of bringing him, without incurring the penalty provided by section 6 of the act (Comp. St. § 4289%