TZIMAS

                                                   Interim Decision #1251




                             MATTER OF TZIMAS

                    In DEPORTATION Proceedings
                                 A-15817480
                  Decided by Board September 10,1962
Respondent, who upon arrival in the United States was destined to join a vessel
  as a crewman, is ineligible for adjustment of his status under section 245 of
  the Immigration and Nationality Act, as amended (8 OEM 245.1), despite'his
  admission as an alien in transit under section 101(a) (15) (0) of that Act.

CHARGE :
  Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)1—Remained
           longer.


   This is an appeal from the order of the special inquiry officer finding
respondent deportable on the ground stated above and denying his
application for adjustment of status under section 245 of the Immigration and Nationality Act. Voluntary departure was granted. The
appeal will be dismissed.
  No issue is taken with the finding of deportability. The special
inquiry officer found respondent ineligible for adjustment of status
because of his belief that respondent came within the terms of a regulation which states that an alien crewman or an alien coming to the
United States to serve on a vessel cannot qualify for the relief.
Counsel contends that the regulation is invalid for it enlarges the
classes of persons who cannot obtain relief under the express terms of
the statute; and he contends that the regulation does not apply in
any event because respondent was not admitted to the United States
as a crewman or alien destined to join a vessel, but was admitted in
transit.
   The respondent is a 25-year-old married male, a native and citizen
of Greece, who was admitted. to the United States on July 12, 1961,
upon presentation of a C-1 visa (alien in transit, section 101(a) (15)
 ( C) of the Act, 8 U.S.C. 1101 (a) (15) ( C) ) . 1 Respondent was injured;
he was permitted to remain in the United. States until August 10, 1961.
Before the date of his departure, he obtained a divorce from his wife
  1 At oral argument counsel supplied the information that an investigation

conducted by him revealed that an individual coming to the United States to take
employment on a vessel could have been issued a D-1 (crewman) visa under
section 101(a) (15) (D) of the Act, 8 U.S.O. 1101(a) (15) (D).

                                     101.
Interim Decision #1251
in Greece; in February 1962 he married a United States citizen. A
visa petition filed by respondent's wife was approved on April 12,
1962. Respondent filed an application for adjustment of status under
section 245(a) of the Act at his deportation hearing on July 2, 1962.
  The agents of the steamship line to which respondent was destined
when he entered the United States have furnished the information
that respondent's entry was for the purpose of employment as a seaman
on a vessel (Ex. 7). The respondent admits that when he came to the
United States he had a seaman's book to ship as a crewman and that
he came here to reship on a vessel of the line on which he had arrived
(pp .13,14).
  In arriving at the finding of ineligibility, the special inquiry officer
relied upon section 245.1 of Title 8 of the Code of Federal Regulations
 (Supp. 1962) which provides in pertinent part as follows :
  An alien who on arrival in the United States was serving in any capacity on
board a vessel or aircraft, or was destined to join a vessel or aircraft in the
United States to serve in any capacity thereon, or was not admitted or paroled
following inspection by an immigration officer is not eligible for the benefits
of section 245 of the Act. … 2
   The Attorney General is given the power to prescribe the regulations
for the enforcement of section 245(a) of the Act. His regulation is
binding upon the Board. The regulation excludes from the benefits
of section 245 (a) of the Act a person coming to the United States to
join a vessel on which he is to serve as an alien crewman; respondent
is such a person. The appeal must be dismissed.
   ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
  2 For reasons hereinafter set forth no discussion of counsel's contentions will
be made; however, so that the contentions may be understood, pertinent portions
of the law and regulations will be set forth.
  Section 245(a) of the Immigration and Nationality Act (8 U.S.C. 1255(a) )
reads as follows:
  The status of an alien, other than an alien crewman, who was inspected and
admitted or paroled into the United States may be adjusted by the Attorney
General, in his discretion and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent residence if …
  The term "crewman" is defined to mean "a person serving in any capacity on
board a vessel or aircraft" (section 101(a) (10) of the Act, 8 U.S.C. 1101(a)
(10) ).
  An "alien crewman" is described as follows :
  [Ain alien crewman serving in good faith as such in any capacity required
for normal operation and service on board a vessel (other than a fishing vessel
having its home port or an operating base in the United States) or aircraft,
who intends to land temporarily and solely in pursuit of his calling as a crewman
and to depart from the United States with the vessel or aircraft on which he
arrived or some other vessel or aircraft; (section 101(a) (15) (I)), 8 U.S.C.
1101 (a ) (15) (D)).
                                        102