Interim Decision #1926
MATTER OF REBBLO
In Deportation Proceedings
A-15382877
Decided by Board October 24, 1968
Notwithstanding respondent at the time of his last entry in April 1965 was
serving as a crewman on board the vessel on which he arrived, was listed
on the vessel's arrival manifest as a crew member, and for 25 years immediately preceding had been a crewman by occupation, he is not precluded
from establishing statutory eligibility for adjustment of status under section 245, Immigration and Nationality Act, as amended, since he was inspected and admitted at that time as a temporhry visitor for pleasure
upon presentation of a valid noninunigrant visa.
CHARGE:
Order: Act of 1952—Section 241 (a) (2) [8 12513—Nonimmigrant
(temporary visitor for pleasure)—remained
longer.
ON BEHALF or RESPONDENT: ON BEHALF OF SERVICE:
Bertrand D. Gerber, Esquire Robert A. Vielhaber
119 West 57th Street Appellate Trial Attorney
New York, New York 10019
The special inquiry officer, in a decision dated April 29, 1968,
denied the respondent's application for adjustment of his status
to that of a permanent resident; granted his alternative request
for voluntary departure; and provided for his deportation from
the 'United States to Brazil, alternatively to Portugal, on the
charge contained in the order to show cause, in the event of his
failure to so depart. We will remand the case to the special inquiry officer, for the reasons hereinafter set forth.
The record relates to a 59-year-old male alien, a native and national of Portugal, who last entered the United States on or about
April 12, 1965. He was then admitted as a noninunigrant temporary visitor for pleasure, on the basis of his presentation of a
B-2 visa obtained from an American Consul in Japan. He was
thereafter authorized to remain in the United States as a tempo-
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Interim Decision #1926
my nonimmigrant visitor for pleasure until September 11, 1966.
He has, however, remained here since that date without authority.
The foregoing establishes the respondent's deportability on the
charge contained in the order to show cause, and this is uncontested. The special inquiry officer has granted the respondent's alternative request for voluntary departure, and the record before
us supports said official's action in this respect. The only remaining issue is whether, as the special inquiry officer has found, the
respondent is ineligible for adjustment of his status to that of a
permanent resident, because for the 25 years immediately preceding his last entry, respondent had been a crewman by occupation;
at the time thereof he was serving as an engineer aboard the vessel on which he arrived; and he was listed as a member of the
crew on the vessel's arrival manifest. Our answer, based on the
following pertinent provisions of the statute and the related regulations, is in the negative.
Section 245 (a) of the Immigration and Nationality Act (8
U.S.C. 1,255) provides that :
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 ….
(Emphasis supplied.)
In our opinion the clear meaning of this language is that an
alien who happens to be serving as a crewman at the time of his
entry is barred from adjustment of his status to that of a permanent resident only if, insofar as is here pertinent, he has been inspected and admitted or paroled into the United States as such.
But this respondent was inspected and admitted as a properly
documented nonimmigrant temporary visitor for pleasure, and
not as a crewman. Therefore, it is our judgment that he is not ineligible for the relief in question on the ground used by the special inquiry officer.
Support for ruling is found in the fact that, while section
101 (a) (10) of the Immigration and Nationality Act (8 U.S.C.
1101) does define a "crewman" as "a person serving in any capacity on board a vessel or aircraft," section 101 (a) (15) (D)
thereof further characterizes a "crewman" as one "… who intends to land in pursuit of his calling as a crewman …." The
reading of these two provisions together, as is necessary so that
the law will produce a harmonious whole, 1 reveals that two ele-
1 In re Public National Bank of New York, 278 U.S. 656.
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Interim Decision #1926
ments are required to constitute an alien a "crewman," for present purposes at least, to wit:
(1) he must be serving aboard a vessel in a capacity required for its normal
operation; and
(2) he must be seeking (and gain) admission to this country because of his
occupation in that role.
Obviously, since the record before us reflects that the respondint
was admitted as a nonimmigrant temporary visitor for pleasure
and was properly documented as such, the second essential factor
is not present in this case. In this connection, we find it significant that the deportation proceedings against the respondent
were based solely on the charge that he was a temporary visitor
for pleasure who had remained here in that status for a longer
period of time than authorized. 2
Also, our interpretation, ante, follows the well recognized rules
of construction that the statute, being a remedial one, must be
liberally interpreted to suppress the evil and advance the remedy;
and the exception carved out of it must be explained principally
in view of the legislative intents On. this point, the history of section 245 shows that the Congress intended to bar from relief only
such aliens as had gained relatively easy access to the United
States by reason of their occupation as crewmen. 4 Obviously,
again, this respondent was not admitted because of his employment as a crewman and in pursuit of his calling, but as a properly documented temporary visitor for pleasure who convinced a
United States Consul abroad and an examining immigration
officer here that he was entitled to entry as a visitor rather than
as a crewman.
Clearly, as in the case of any other alien, a crewman entering
this country before (without) inspection, or after having been inspected and refused admission, would be ineligible for adjustment
of his status to that of a permanent resident This result would
flow naturally and inescapably from the statutory requirements
of inspection and admission or parole.
Our decision herein does not have the effect of holding that the
relief in question may not, consistently with prior precedent deci-
2 See Matter of T—, 5 I. & N. Dec. 459, holding that ineligibility for discretionary relief (voluntary departure) must be based on a sustained charge
of deportability.
Sutherland, Statutory Construction, 3rd ed., Vol. 2, secs. 3302 and 4936.
4 Matter of Goncalues, 10 I. & N. Dec. 277 at 279, involving an alien who
was occupationally a crewman and, while admitted in transit, was so admitted to ship foreign as a crewman.
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Interim Decision #1926
sions of this Board,' be withheld upon a showing that the respondent, in following the procedure he did to gain admission
into the United States, had a preconceived intent to circumvent
the normal immigrant visa issuing process. This, however, is entirely different from finding him ineligible for relief on the basis
of a strained construction of the language used in the statute,
however convenient the latter course of action might be from the
standpoint of enforcement of the law . 8 The language of 8 CFR
245.1 (a) does not justify resort to the alternative procedure thus
outlined, because it cannot exceed the scope of the statute on
which it depends.'
Actually,,our ruling herein is, we find, consistent with those we
have heretofore rendered in somewhat similar situations. Thus,
on June 11, 1965, we dismissed a Service appeal from a special
inquiry officer's order granting section 245 relief to a Greek alien,
a seaman by occupation, who had deserted his ship in Canada 25
days before entering the United States at Messena, New York;
and we denied the Service motion for reconsideration of that decision, on September 8, 1965. 8 So, also, we authorized adjustment
of status to that of a permanent resident in the case of an alien
who, while arriving in the United States aboard a freighter
which ordinarily carries no passengers, did in fact serve meals to
the crew and wash dishes after meals, but was in possession of a
nonimmigrant visa and was admitted by an immigration officer
as a temporary visitor for pleasure upon presentation • of an appropriate visa' While the decision in the latter case cited above
was based on the holding that, on the facts, the alien involved was
not employed as a crewman at the time of his arrival, we think
our reasoning in that case points to the logical extension of the
ruling therein to the present situation.
Accordingly, and in view of the foregoing, we will withdraw
the special inquiry officer's order of April 29, 1968. However, we
will remand the matter to said official for reopening of the proceedings for consideration of the respondent's eligibility otherwise and/or whether relief is warranted herein, as a matter of
discretion. In the latter connection, we note that counsel for respondent, in the course of oral argument (p. 2), indicated that,
'Matter of Tonga, A 14674907, BIA, 6/3/67, 12 I. & N. Dec. 212; and
-
Matter of Muslemi, A-17256526, BIA, 5/81/67,12 I. & N. Dec. 249.
United States v. J. H. Winchester & Co., Inc.,
40 F.2d 472
7 United States v. Smull,
236 U.S. 405
'Pappas, A-14012055, unreported.
2 Matter of Quintero-Correa,
11 I. & N. Dec. 343.
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although the respondent is married to a citizen of the United
States, there is some question as to whether or not his wife will
file and prosecute a petition for an immigrant visa for the respondent.
ORDER: It is ordered that the special inquiry officer's decision
of April 29, 1968, be withdrawn and that the case be remanded to
said official for appropriate action not inconsistent with the foregoing opinion.
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