Cite as 25 I&N Dec. 82 (BIA 2009) Interim Decision #3655
1 The respondent, through counsel, conceded the charge of removability at a hearing on
December 9, 2004.
2 The respondent filed his application for cancellation of removal in February 2005, and
therefore his claim is not governed by the REAL ID Act of 2005, Division B of Pub. L. No.
109-13, 119 Stat. 302, which applies to applications filed on or after May 11, 2005.
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Matter of G-D-M-, Respondent
Decided October 8, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien who entered the United States pursuant to a crewman’s visa for the purpose of
obtaining employment as a crewman is statutorily ineligible for cancellation of removal
under section 240A(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(c)(1)
(2006). Matter of Goncalves, 10 I&N Dec. 277 (BIA 1963), followed.
FOR RESPONDENT: Anayancy R. Housman, Esquire, Elizabeth, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY: Joseph Silver, Assistant Chief
Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
MULLANE, Board Member:
In a decision dated August 18, 2006, an Immigration Judge found the
respondent removable under section 237(a)(1)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(1)(B) (2006), as a nonimmigrant who
remained in the United States longer than permitted.1
The Immigration Judge
also found the respondent ineligible for cancellation of removal under section
240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2006),2
denied his motion to
terminate removal proceedings, and granted him the privilege of voluntary
departure. The respondent has appealed from the Immigration Judge’s
decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 46-year-old native and citizen of the Philippines
who was admitted to the United States on June 17, 1994, at Los Angeles,Cite as 25 I&N Dec. 82 (BIA 2009) Interim Decision #3655
3 Under section 101(a)(10) of the Act, the term “crewman” is defined as “a person serving
in any capacity on board a vessel or aircraft.” The phrase “any capacity” encompasses a
wide range of jobs aboard a vessel and is not limited to operation of the vessel.
4 The Seaman’s Service Record Book states that the “Seaman’s Service Record Book is a
SEAFARER’S IDENTITY DOCUMENT issued for the purpose of providing the holder
with Identity papers for travel to or from an assigned vessel, and of providing a record of the
holder’s sea service.”
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California. He resides with his 10-year-old United States citizen daughter and
her mother, who is also a native and citizen of the Philippines.
The record reflects that the respondent was issued a Form I-94
(Arrival-Departure Record) that classified him as a C-1 nonimmigrant in
transit, and his passport included a “C-1/D” visa. The “D” on his visa
indicated that he had been accorded “alien crewman” status under section
101(a)(15)(D) of the Act, 8 U.S.C. § 1101(a)(15)(D) (1994).3
At the time of
his entry, he possessed a Seaman’s Service Record Book issued by the
Philippine Coast Guard on May 19, 1994.4
The respondent identified himself
as a “crewman” in the entry for “current immigration status” in an asylum
application dated August 10, 1994. He subsequently withdrew the asylum
application at a hearing on August 18, 2004.
The respondent testified at his hearing in 2006 that when he was admitted
to the United States, he was planning to work on a ship. Although he came to
the United States for that purpose, he did not have a license for employment
aboard a specific ship on his arrival. According to the respondent, he had
never been employed as a crewman and had not received any formal training
as a seaman. After he entered the United States, he was never employed as a
crewman.
In her decision, the Immigration Judge found the respondent removable
for remaining in the United States longer than permitted following his
admission as a nonimmigrant under section 101(a)(15) of the Act. Because the
Immigration Judge found the respondent to be a crewman, she concluded that
he was statutorily ineligible for cancellation of removal under section
240A(c)(1), which states that cancellation of removal is not available to “[a]n
alien who entered the United States as a crewman subsequent to June 30,
1964.” She also denied the respondent’s motion to terminate, finding no issue
regarding possible improper notice in the Notice to Appear (Form I-862),
which reflected an incorrect date and status of admission but nevertheless
properly informed the respondent that he was charged with remaining in the
United States longer than his nonimmigrant status allowed.
In finding the respondent ineligible for cancellation of removal, the
Immigration Judge relied on our decision in Matter of Goncalves, 10 I&N Dec.
277 (BIA 1963), which concerned an alien who had been employed on anCite as 25 I&N Dec. 82 (BIA 2009) Interim Decision #3655
84
American vessel that was sold abroad and who entered the United States in
transit to reship but subsequently became unemployed while in the
United States. We held that the alien was ineligible for suspension of
deportation and adjustment of status because his entry in transit to ship on
another vessel constituted an entry as a crewman. We noted that he entered the
United States in pursuit of his calling as a seaman, which was evidenced by his
testimony that he entered to ship out as a seaman and by his record of entry
reflecting that he entered as a crewman and was a seaman intending to reship
foreign. Id. at 279-80.
On appeal, the respondent challenges the conclusion that he was a crewman
upon his admission to the United States. Although he acknowledges that he
was admitted to the United States with a C1/D visa indicating he was a
crewman, he claims that he should not be formally classified as a crewman
because he did not enter the United States with current employment aboard a
ship. Consequently, he argues that he is eligible for cancellation of removal.
II. ANALYSIS
We review the Immigration Judge’s findings of fact under the “clearly
erroneous” standard, while we review de novo all other issues, including those
regarding burden of proof and the exercise of discretion. Matter of V-K-,
24 I&N Dec. 500 (BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008);
8 C.F.R. § 1003.1(d)(3)(i)-(ii) (2009).
We conclude that the Immigration Judge’s decision is correct under Matter
of Goncalves, 10 I&N Dec. 277, because the respondent received his visa and
entered the United States in pursuit of employment as a crewman. As we held
in that case, “[W]e believe it was the intent of Congress to bar all occupational
seamen who entered by reason of their occupation.” Id. at 279. In this
connection, we note that the respondent entered the United States on a C-1/D
visa; he possessed a Seaman’s Service Record Book that was recently issued
by the Philippine Coast Guard; he identified himself as a “crewman” in an
asylum application submitted shortly after his entry; and he testified that he
was planning to work on a ship. Under these circumstances, we agree that the
respondent entered the United States by reason of his occupation as a seaman,
regardless of whether he ever had been employed as a crewman, had any prior
training or experience in this occupation, or had located future employment
aboard a specific vessel. By choosing to seek entry to the United States as a
crewman, the respondent agreed to the limitations associated with that status.Cite as 25 I&N Dec. 82 (BIA 2009) Interim Decision #3655
5 The respondent contends that his case may be distinguished from Matter of Goncalves, and
he relies on an unpublished Board order issued in 2005. In that case, an unemployed alien
who previously had served as a crewman was admitted into the United States on a C-1 in
transit visa. An Immigration Judge found that the alien was subject to removal under
sections 237(a)(1)(B) and (C)(i) of the Act and determined that he was a crewman who was
not eligible for cancellation of removal or adjustment of status. We held that the alien’s
entry in transit did not constitute entry as a crewman and that he was in effect an “intending”
crewman who was eligible for relief. However, we have determined that Matter of
Goncalves applies to the respondent’s case. Moreover, an unpublished Board decision does
not serve as controlling precedent. Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990,
1991); 8 C.F.R. § 1003.1(g) (2009).
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Therefore, he cannot now avoid the consequences of those restrictions in
removal proceedings by claiming not to be a crewman.5
Our general approach, which we reaffirm in this case, has been to examine
an alien’s visa and the circumstances surrounding his entry into the
United States to determine if he entered as a crewman. If it is apparent, as it
is in the respondent’s case, that the alien was issued a visa as a crewman and
entered the United States in pursuit of his occupation as a seaman, then he is
to be regarded as an alien crewman. See Matter of Tzimas, 10 I&N Dec. 101
(BIA 1962) (holding that an alien who was admitted with a C-1 in transit visa
was ineligible for adjustment of status because he had entered to serve as an
alien crewman).
A review of our precedent decisions indicates that we have consistently
examined the type of visa an alien possessed, as well as the nature of his
admission, to determine whether he should be considered a crewman. For
example, we have concluded in other contexts that an alien is not a “crewman”
even if his means of arrival in the United States was as a crewman or he had
previously entered as a crewman, provided that his most recent admission was
not as a crewman. See Matter of Rebelo, 13 I&N Dec. 84 (BIA 1968) (holding
that an alien admitted with a B-2 nonimmigrant visitor’s visa was not entering
as a crewman, even though he was serving as a ship’s engineer); Matter of
Quintero-Correa, 11 I&N Dec. 343 (BIA 1964) (finding that an alien admitted
with a B-2 nonimmigrant visitor’s visa was not entering as crewman arriving
aboard a freighter, although he earned half his fare by serving meals to the
crew and washing dishes). On the other hand, we have held that an alien
entering the United States as a B-2 nonimmigrant visitor for pleasure can be
considered a crewman where he “intended to pursue his calling as a crewman
aboard [a ship].” Matter of Campton, 13 I&N Dec. 535, 538 (BIA 1970)
(concluding that “the respondent’s last entry . . . was sought and gained solely
in pursuit of his occupation”). Cite as 25 I&N Dec. 82 (BIA 2009) Interim Decision #3655
6 In this connection, the respondent contends that he cannot be considered a crewman
because he allegedly was not issued a conditional landing permit. The absence of a
conditional landing permit does not preclude a finding that he entered as a crewman. As
noted above, the pertinent inquiry is whether the respondent was issued a visa as an alien
crewman and entered the United States as a crewman. This inquiry is not governed by the
existence of any forms that the Government did or did not issue to the respondent. As we
have previously stated, “[I]t is substance rather than form which controls . . . .” Matter of
Campton, 13 I&N Dec. at 538. 7 This appears to be a peculiar argument for the respondent to advance because he is only
eligible for cancellation of removal if he is in removal proceedings under section 240 of the
Act.
8 We note in this regard that section 237(a) of the Act provides that “[a]ny alien
(including an alien crewman) in and admitted to the United States shall, upon the order of
the Attorney General, be removed if the alien is within one or more of the . . . classes of
(continued…)
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We note that this approach has been upheld by the United States Court of
Appeals for the Eleventh Circuit. In Parzagonis v. INS, 747 F.2d 1389 (11th
Cir. 1984), the alien had never worked as a crewman before he traveled to the
United States to begin his employment aboard a ship at Panama City, Florida.
He served as a crewman for 1 week before leaving the ship and remained
illegally in the United States for 12 years. Relying on Matter of Goncalves,
the Immigration Judge found the alien ineligible for suspension of deportation
and rejected his contention that he did not enter as a crewman because he only
became a crewman after his entry into the United States. We affirmed, noting
the respondent’s testimony that he entered to ship out as a seaman. The
Eleventh Circuit agreed with our decision, holding that the dispositive issue
was whether the alien had entered the United States in pursuit of his calling as
a seaman, regardless of whether he had previously been employed as a
crewman. Accordingly, in this case, where the respondent secured a visa as
a crewman, entered the United States pursuant to that visa, arrived with the
intention of working as a seaman, and identified himself as a crewman on his
asylum application, we conclude that he entered as a crewman for purposes of
section 240A(c)(1) of the Act.6
The respondent argues in the alternative that if he is determined to have
entered the United States as a crewman, his motion to terminate removal
proceedings should have been granted. Citing section 235(b)(2)(B)(i) of the
Act, 8 U.S.C. § 1225(b)(2)(B)(i) (2006), he asserts that as a crewman, he
would not be entitled to a removal hearing under section 240 of the Act,
8 U.S.C. § 1229a (2006).7
We disagree. The respondent was admitted to the
United States in 1994. Consequently, he is not subject to the provisions of
section 235(b), which went into effect in 1997 after he was admitted and relate
only to applicants for admission.8 We therefore conclude that the respondentCite as 25 I&N Dec. 82 (BIA 2009) Interim Decision #3655
(…continued)
deportable aliens.” Aliens charged with grounds of deportability under section 237(a) are
properly in section 240 removal proceedings. See section 240(a)(2) of the Act; see also
8 C.F.R. § 252.2(b) (2009) (providing that a crewman who was granted landing privileges
prior to April 1, 1997, and who has not departed is subject to removal proceedings under
section 240 of the Act).
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was properly placed in removal proceedings and that the Immigration Judge’s
denial of the respondent’s motion to terminate was correct in these
circumstances. Accordingly, his appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the respondent is permitted to voluntarily depart the
United States, without expense to the Government, within 60 days from the
date of this order or any extension beyond that time as may be granted by the
Department of Homeland Security (“DHS”). See section 240B(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2006); see also
8 C.F.R. §§ 1240.26(c), (f) (2009). In the event the respondent fails to
voluntarily depart the United States, the respondent shall be removed as
provided in the Immigration Judge’s order.
NOTICE: If the respondent fails to voluntarily depart the United States
within the time period specified, or any extensions granted by the DHS, the
respondent shall be subject to a civil penalty as provided by the regulations
and the statute and shall be ineligible for a period of 10 years for any further
relief under section 240B and sections 240A, 245, 248, and 249 of the Act,
8 U.S.C. §§ 1229b, 1255, 1258, and1259 (2006). See section 240B(d) of the
Act.
WARNING: If the respondent files a motion to reopen or reconsider
prior to the expiration of the voluntary departure period set forth above, the
grant of voluntary departure is automatically terminated; the period allowed
for voluntary departure is not stayed, tolled, or extended. If the grant of
voluntary departure is automatically terminated upon the filing of a motion, the
penalties for failure to depart under section 240B(d) of the Act shall not
apply. See Voluntary Departure: Effect of a Motion To Reopen or Reconsider
or a Petition for Review, 73 Fed. Reg. 76,927, 76,937-38 (Dec. 18, 2008)
(to be codified at 8 C.F.R. §§ 1240.26(c)(3)(iii), (e)(1)).
WARNING: If, prior to departing the United States, the respondent files
any judicial challenge to this administratively final order, such as a petition for
review pursuant to section 242 of the Act, 8 U.S.C. § 1252 (2006), the grant
of voluntary departure is automatically terminated, and the alternate order of
removal shall immediately take effect. However, if the respondent files aCite as 25 I&N Dec. 82 (BIA 2009) Interim Decision #3655
88
petition for review and then departs the United States within 30 days of such
filing, the respondent will not be deemed to have departed under an order of
removal if the alien provides to the DHS such evidence of his or her departure
that the Immigration and Customs Enforcement Field Office Director of the
DHS may require and provides evidence DHS deems sufficient that he or she
has remained outside of the United States. The penalties for failure to depart
under section 240B(d) of the Act shall not apply to an alien who files a petition
for review, notwithstanding any period of time that he or she remains in the
United States while the petition for review is pending. See 73 Fed. Reg. at
76,938 (to be codified at 8 C.F.R. § 1240.26(i)).