GONCALVES

                                                    Interim Decision #1285




                             MATTER or GONCALVES

                    In DEPORTATION Proceedings
                                   A-9948279

                       Decided by Board June 4, 190
Since respondent's entry in transit in pursuit of his calling as a seaman to reship foreign on another vessel constitutes entry as a crewman, he is statutorily
  ineligible for suspension of deportation and for adjustment of status under
  sections 244 and 245, respectively, of the Immigration- and Nationality Act, as
  amended.
CHARGE:
   Act of 1824—Remained. longer—transit.



   On February 19, ,1963 the Board denied respondent's motion to reopen proceedings to enable him to apply for relief under sections 241
 and 245 of the Act. Reconsideration is requested of the order insofar
as it relates to section 245 of the Act. The motion will be denied.
   Respondent, a 43-year-old married male alien, a native of the Cape
Verde Islands and citizen of Portugal, last entered the United States
on December 7, 1947. A seaman employed on an American vessel sold
abroad, he was brought back to the United States in transit so that he
-could ship foreign; he was admitted until January 4, 1948, for that
purpose. Unable to obtain employment as a. seaman after several
months of search, either because of a strike or because of the fact that
he was an alien, he took a job in the United States.
   On March 26, 1952 a hearing officer found respondent deportable on
the ground that he had remained longer than the time for which he
had been admitted_ The hearing officer denied discretionary relief_
Upon appeal, the Board considering respondent's request for suspension of deportation and voluntary departure decided (April 14,
1953) that suspension was not merited but did grant voluntary
departure.
   The respondent did not depart. On July 31, 1954 he married a
woman who believing herself to be a citizen of the United States,
filed a petition to enable him to obtain a nonquota visa. The petition

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was granted on June 13, 1962 after a delay which had been caused
by an issue raised by the Service as to the wife's citizenship. Respondent then filed a motion for the reopening of deportation proceedings to enable him to apply for relief under sections 244 and 245
of the Act. On February 19, 1963 the Board denied the application
for reopening of proceedings on the ground that the respondent was
ineligible for either of the reliefs. The Board held that since seamen
are barred from the reliefs, and since respondent's entry in transit
to ship on another vessel constituted an entry as a seaman, he was
barred.
   The provision of law on which the Board based its ruling that
respondent was ineligible for relief under section 244 of the Act
 (suspension of deportation) follows:
  No provision of this section [s/d) shall be applicable to an alien who (1)
entered the United States as a crewman; or (2) was admitted to the United
States pursuant to section 101(a) (15) (J) of this title or has acquired such
status after admission to the United States; or (3) is a native of any country
contiguous to the United States or of any adjacent island named in section
101 (b) (5) of this title : (section 244(f) of the Act).
   Counsel contends that respondent was not admitted to the United
States as a crewman but in transit, and is therefore not a crewman
barred from relief. That admission to the United States must be
made in the status of a crewman to bring about an alien's ineligibility
for suspension
       .        of deportation, is deduced by counsel from a comparison of sections 244 and 245 of the Act. That comparison indicates
to him that alien crewmen as a class are barred from relief by section
245 but that only alien crewmen who were formally admitted to the
United States under the law relating to the admission of alien crewmen are barred from relief under section 244. Counsel draws this
conclusion from the fact that section 241 of the Act grants relief to one
"other than an alien crewman" whereas section 244 of the Act grants
relief unless the alien "entered the United States as a crewman"
(emphasis supplied). Counsel finds the difference in language of
particular significance since in revising section 244 of the Act (1962)
after the phrase concerning crewmen in section 245 of the Act had
been in use since 1960, Congress did not make use of the language of
section 245 of the Act.
  Let us examine the contention that the term "entered" in section
244(f) of the Act was used to indicate that an alien had been formally
authorized by the Service to enter the United States as a crewman.
The word "entry" as applied to respondent who was not a returning
resident means any physical passing from a foreign place to the United
States whether legally or illegally made, except a passing wader the
terms of a parole (Matter of Anastasopazdos, Int. Dec. No. 1154).
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There is nothing in section 244(f) of the Act which requires that the
term be given any but its well recognized meaning; the term thus
cannot mean the formal admission of a crewman as such by a Service
official.
  That a formal admission of a crewman by the Service was not contemplated, may be seen from the fact that the very section in question
which makes crewmen who "entered" ineligible provides for the ineligibility of participants in a Department of State program who
were "admitted to the United States pursuant to section 101(a) (15)
(J)" of the Act (emphasis supplied). The use of the term "entered"
for seamen and the use of the word "admitted" for a different class
well disposes of the argument that Congress intended to bar only aliens
who were "admitted" as crewmen.
  Another reason for rejecting counsel's contention that only aliens
who were-legally admitted in the status of crewmen are barred from
 relief is the fact that such a law would favor the alien who entered
 illegally over the one who entered legally. If indeed only an alien
 who was "admitted" as a crewman is barred from relief, then the
 crewman who entered illegally, i.e. the one ordered detained on board
 his vessel who escaped into the United States, would not be barred
 from relief. It is hardly likely that Congress intended such a result.
 Rather, we believe it was the intent of Congress to bar all occupational
 seamen who entered by reasuu of their occupation. This result would
 best meet the problem which faced the Congress—the fact that seamen
 who have relatively easy access to the United States have used the
 seaman route to enter the United States for permanent residence—a
 problem which has engaged a good deal of the Service energies and
 which would be aggravated if persons having easy access to the United
 States were of the belief that they could obtain legal residence by
,deserting and hiding out (Hearings, Subcommittee on Appropriations
H.R. (Dept of Justice) 85th Cong., 2d Sess. pp. 13-14, 199 (1959) ;
86th Cong., 1st Sess. pp. 25, 305 (1960) ; 86th Cong., 2d Sess. pp. 409-
411 (1961). In light of this problem it matters little that an alien is
admitted as a crewman and deserts his ship, or that he deserted the
ship without being permitted to land as a crewman, or that he, as is
common place, was brought to the United States as a passenger or
        -


workaway to reship as a seaman on another vessel.
   We believe that the respondent is barred from relief because he
entered in pursuit of his calling as a seaman. That he entered by
reason of his occupation is clear from his testimony which shows he
entered the United States to ship out as a seaman (pp. 2-3), by the
record of his entry which shows that he entered as a crew member, that
he was a seaman and was coming to the United States to reship

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foreign (Ex. 4), and by the fact the same record shows that for head
tax purposes, respondent was placed under 8 CFR 105.3 (k) which
dealt with the nonresident occupational seaman who was entering the
United States temporarily in pursuit of his occupation, or as a passenger or workaway and who was admitted solely for the purpose
of reshipping foreign.
  ORDER: It is ordered that the motion be and the same is hereby
denied.




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