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 abovenamed alien crewman aboard the vessel at all times despite the 

fact that the Service had refused him conditional landing privileges and ordered him detained on board. The case is before this 

Board upon certification by the District Director, St. Paul, Minnesota, of his order that the Notice of Intention to Fine be withdrawn and that the proceedings be terminated.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, Massachusetts, on June 23, 1971. At the time of his arrival, a Form I-95A, 

Crewman's Landing Permit, was given to him bearing the notation "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 ordered 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 immigration 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 occurred 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 temporarily." In the view of the officer-in-charge, the conclusion is 

inescapable that the words "arriving in the United States," preceding 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. Accordingly, 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 situation, 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 submitted 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 administrative 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 document 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 immigration 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 documentation. 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 contrary, not only was Roascio permitted to proceed from Boston, 

Massachusetts, to Toledo, Ohio, without any immigration documents, and join the vessel, but the carrier was fully and immediately 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 adjustment 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 terminating 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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