Interim Decision #1516

Interim Decision #1516

MATT= or QUINTE310-COBREA

In Deportation Proceedings

A-12774443

Decided by Board January 14, 1964

Arrival in the *United States as a workaway aboard. a freighter does not preclude adjustment of status wider section 245, Immigration and Nationality

Act, as amended, in the, case of an alien who has no background as en occupational seaman, who was in possession of a valid unexpired nonimmigrant visa, and who was inspected and admitted as a 'temporary visitor for

pleasure.

Osman:

Order: Act of 1952--Section 241(a) (2) IS

1251(a) (2)]—Nonimmigrant (temporary visitor for pleasure)—remained

longer.

The special inquiry officer, in a decision dated Septbmber 23, 1963,

denied the respondent's application for adjustment of status, ante;

granted him the privilege of voluntary departure; and provided for

his deportation to Colombia on the charge contained in the order to

show cause in the event of his failure to so depart. The appeal,

which brings the case before this Board for consideration, challenges

Only the denial of adj -qs4ent of status, ante.

The record relates to a 21-year-old single male alien, a waive and

citizen of Colombia, who arrived in the United States on February

16, 1962. He was then in possession of a valid unexpired nonimmigrant visa of the B-2 type (temporary visitor for pleasure). He

was admitted in•that status and thereafter authorized to remain here

therein until October 5,-1962. He has remained here since the expiration of the temporary period of his admission without authority.

The foregoing establishes the. respondent's depo4ability un they

above stated charge, and it is uncontested. This aspect of the eases

therefore, requires no further comment.

The special inquiry officer has found the respondent eligible for

voluntary departure and granted such relief. The record supports

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Interim Decision #1516

said official in this respect. Accordingly, no further discussion of

this phase of the case is required.

Denial of adjustment of status to this respondent is based on the

fact that, although he arrived in the United States in possession of

a nonimmigrant visa and was admitted by an immigration officer as

a temporary visitor for pleasure, he made the trip to this country

aboard a freighter (which ordinarily carries no"passengers) by paying a half-fare passage to the Master and working out the other

half of his passage by serving meals to the crew and washing dishes

after meals. The special inquiry officer's opinion reflects that he

did not think that section 245 of the Immigration and Nationality

Act was intended to apply, in a case such as this. However, he felt

constrained to deny the application for -adjustment of status thereunder because of the provisions of 8 CFR 245.1. The former 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 to that of

an alien lawfully admitted for permanent residence • • •. (Emphasis

supplied.)

The latter states that:

An alien who on arrival in the United States was serving in any capacity on

board a •oessel • * • is not eligible for the benefits of section 245 of the Act

• • *. (Emphasis supplied.)

Reduced to its essence, the issue here is whether the exception contained in section 245 applies only to persons who are occupationally

crewmen, or includes a person whose only service as a crewman• was

in connection with the trip which brought him to the United States.

In other words, the question to be answered here is whether the Congress intended to hold ineligible for adjustment of status under section 245 an alien who, by happenstance, arrived as a crewman but

was properly documented for admission as a nonimmigrant visitor

and was so admitted: Our answer to this question is in the negative,

for the reasons hereinafter stated.

According to the record, the respondent's high school education

was interrupted by a call to military service.. He served in the Colombian Navy from about August of 1957 to about May of 1958, but

was never on a boat. Alter his release from military service, the

respondent completed his high school education by taking correspondence courses. Then, commencing in about 1959 and continuing

for a period of approximately two years, he worked in his father's

place of. business, selling automobile accessories, helping with the

bookkeeping, and performing similar other duties. This was the

only employment he had after completing his schooling.

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Interim Decision. #151:6'

Eventually, he decided to come to the United States for a via'it

and applied for a visitor's visa at the American Consulate in.Bogota,

Colombia. He pUrchased a round-trip airplane ticket between.

Colombia and the United States, and exhibited same to the American

Consul pursuant to the latter's request. The records of said official

indicate that the Vice Consul required. a latter from the subject's

father, a letter from the father'S - bank, and the round-trip plane

ticket before issuing the alien a tourist visa on February 6, 1962.

After the alien received his visa, a female friend connected with

a shipping company suggested that he might be able to save money

on his passage by going to the United States by boat rather than by

plane. Apparently, she thereafter referred him to the captain of the

ship on which he arrived in this country. Their meeting resulted in

an agreement whereby the respondent paid the Master $100 (alleged

to be half fare, although the ship never had taken passengers) and

was to work out the remainder of his pasiage money by performing

duties aboard the ship. They consisted of serving the crewmen during meal and coffee times, and cleaning up afterwards and washing

the dishes.

The alien did not sign the articles of the vessel. He

not sleep

in the crew's quarters but in the state room normally assigned to the

pilot who would come aboard in connection with the entry or clearance of the vessel at any given port. He did not associate with the

crew members of the vessel when off duty. He saw no other passen:gers and indicated that the ship carried none.

Ito testified that his reason for redeeming his round trip air ticket

and coming by boat in the manner he did was to economize on expenses because he felt he might like to stay in the United States

somewhat longer than his father expected and did not want to ask

his father for additional money. He also testified that after he had

been in this country six months he decided he would like to remain

here and was informed by friends that he could apply for adjustment of status to that of a permanent resident.

The manifest of the vessel on which this alien arrived in the

United States indicates that he was employed as a workaway. His

name was originally listed on the crew list of the vessel as a workaway. However, the manifest further shows that, pursuant to the

action of the inspecting immigration, officer, his name was transferred from the immigration crew list to a. separate passenger manifest. He was then admitted for a period of two months as a. tera •

porary visitor for pleasure.

The foregoing facts reveal that the respondent had no history of

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being occupationally a crewman. He obviously was not a; stranded

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or repatriated individual and concededly had not signed the vessel's

articles, so that he was not properly classifiable as -a "workaway."

He clearly was not hired or accepted as a member of the crew and

had no permanent connection with the -vessel, so that he was not

classifiabld as a "seaman." 2 Therefore, he had to be either a business invitee, a visitor or a passenger. 3

It seems only logical to conclude that the Master handled the case

of this alien's passage as he did so that; in the light of the foregoing

considerations, neither he (the Master), the vessel, nor the parties

responsible for its operation would be subjected to liability under

the Jones Act,' The inspecting immigration efficer also presumably

took these same factors into consideration, together with the facts

specifically relating to the respondent's passage, in finding the latter

a passenger. That being the case, his admission of the respondent,

who was in possession of a valid unexpired nonimmigrant visa of

the B--2- type (temporary victor for pleasure), was proper. In our

opinion, it was also highly significant since he was the officer in the

position toinake the best judgment in the matter_ Furthermore, his

evaluation of the situation was accorded Service approval, in the

course of the deportation proceedings which.'were based throughout

on the ground that - the respondent was a temporary visitor for

pleasure -who had remained'longer.

On the basis of the foregoing factors, the special inquiry officer

was of the opinion- that the respondent was not the type of alien

that Congress intended to exclude from eligibility for adjustment of

status under section 245, Immigration and Nationality Act.. In

forming this opinion, said official gave consideration to a prior precedent decision of this Board wherein, in resolving a somewhat related problem, we explored the Congressional intent in enacting this

legislation.5 We therein expressed the belief that it was the intent

of the Congress to bar all aliens who are -occupationally crewmen

and who entered by reason of their occupation. We pointed out that

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's 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 allowed to believe that they

Norris, Who Law of Seamen,

• Id., see. 4.

Vol. 1, 2d ed., see. 5.

.

'Id., sec. 3.

`46 II.S.C. 888, covering hospitalization, damages, penalty, double wages, etc.

Matter of

A-9948279, 6/4/63; Int. Dec. No. 1285, with citations of

legislative history.

'

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Interim Decision #1516

could obtain legal residence by deserting and hiding out. We indicated that in the light of this problem, the statute would bar from

eligibility for relief any alien who was occupationally - a crewman

and was brought to the United States as a passenger or workaway

on one vessel to reship as a, seaman on another. This, of course,

would be true because such an alien would be entering this country

in pursuit of his calling as a seaman (which is not the situation involved here).

Despite the foregoing,.however, the speeial inquiry officer felt constrained to deny relief to this alien because of the wording of 8 CFR

245.1 which, again provides:

An alien who on arrival in the United States was serving in any capacity on

board a vessel * * • is not eligible for the benefits of section 245 of the

Act. • *

'

We, however, do not agree that the regulation has such a limiting

effect.

Section 245, being a remedial statute, is to be liberally construed

to suppress the evil and advance the remedy .° The regulation, which

cannot exceed the scope of the statute on which it depends, 7 must

likewise receive liberal construction. And contrary to the old rule

which required strict interpretation of exceptions, the existing rule

is that exceptions are to be interpreted principally in view of the

legislative intents Accordingly, and in view of the intent of the

Congress spelled out in Matter of G—. ( 5 ante), as well as the following considerations:

(1) the alien had no backgr,ound. as a seaman :

(2) he was not classifiable as such under maritime law;

,

(8) he did not sign the chip's articles;

(4) the immigration officer required that he be manifested as

a passenger;

(5) he was in possession of a visitor's visa and was admitted

as such; and

(6) the deportation proceedings against him were conducted

on the basis of his being a temporary visitor for pleasure who

had remained longer;

it is our conviction that the respondent does not fall within the

statutory exception and that he is eligible to have his status adjusted.

The special inquiry officer has pointed. out in his opinion that he is

otherwise eligible.°

° Sutherland, Statutory Construction, 3d ed., Vol. 2, sec. 3302.

United States v. Entuil, 236 U.S. 405.

Staley' aand, Statutory Oottatruotion,3d on., Vol.

'p. 7,

"

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2, 4e3e.

Interim Decision #1516

Our strong persuasion to this 'viewpoint is, we believe, strengthened when we apply the foregoing rules of statutory (and regula-

tory) construction to 8 CPR 245.1 in its entirety. That is, the phrase

therein reading " * * * or was destined to join a vessel or aircraft in

the United States to "serve in any capacity thereon * * * " is 'indicative of Congressional intent to have the alien's occupation control

rather than the particular manner of his arrival. This, of course, is

in keeping with section 101(a) (15) (D) of the Act (8 U.S.C. 1101)

which defines as an immigrant every alien except an alien within

one of the nonimmigrant classes, to wit:

4n alien serving in good faith as such in any capacity required for normal

operation and service on board a vessel • • * 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.

Finally, we do not think it can be seriously contended that our

rulin • in this case will create an enforcement problem of the nature

the Congress was intending to cure. In the first place, were convenience of enforcement cannot justify a straine • construction. in the

language used." Secondly, our decision will nor result in a spate of

aliens coming into the United. States in. the manner this one did, for

the same reasons which led the Muster of the vessel involved in this

case to handle the alien as he did. That is, Masters would be extremely reluctant to subject themselves, their vessel, or the parties

responsible for its operation to the possibility of liability under the

Jones Act ( 4, ante)

and if they did the owners and agents would

certainly not tolerate such a practice.

ORDER: It is ordered that the appeal be sustained.

It is further ordered that the special inquiry officer's decision be

withdrawn.

It is further ordered that the respondent's application for adjustment of status to permanent resident under section 245 of the Immigration and Nationality Act be granted.

Allen It. Cozier, Member, -Dissenting:

I am unable to agree with the views of the majority of the Board

in this case. I reach this conclusion on the strength of the express,

unambiguous terms of both the applicable statute and the regulation

promulgated thereunder.

The statute (section 215(a), immigration and Nationality Act)

states in clear language: "The status of an alien, other than an

10

United States v. J. H. Winchester 4i Co.,

348

Inc., 40 F.2d 472.

Interim Decision #1516

alien crewman * * * may be adjusted * * 41 (Emphasis supplied.)

."

It is my view that the respondent was a "crewman" during the entire voyage. In the language of the majority the name of this alien

was originally placed on the crew list of the vessel, where it remained

until after arrival in the United States. It was not until after arrival in the United States that, because of some act of the inspecting

immigration ace; the alien's name was taken. from the crew list

and placed :on a passenger list, presumably as an expedient to facilitate his admission as a temporary visitor.

The original placing of the alien's name on the crew list, the assignment to him of the normal duties of a member of the crew and

the fact that he was compensated (in kind) for the services performed by him during the voyage, indicate quite clearly that the

Master regarded him as a crewman and are strong evidence of his

real status as such.

The language of the applicable regulation (8 CPR 245.1) makes

it even more certain that respondent is statutorily ineligible for section 245 relief. It states; "An alien. who on. arrival in the United

States Was serving in any capacity on board a vessel * * is not

eligible for the benefits of section 245 of the Act * * s." (Emphasis"

supplied.) Nothing is clearer to me than that the alien here was

serving in some capacity on board a vessel on arrival in the United

States.

Robert E. Ludwig, Member, Dissenting:

I disagree with the decision. of the majority finding the

eligible for relief under section 245 of the . Immigration and Nationality Act [8 U.S.C. 1255] and granting relief thereunder. Even

were the respondent found to be eligible for relief under the section

cited, I would also doubt whether the facts merit such action.

The facts are simple. The pertinent part of the section. is clarified

by the regulations in Title 8, section. 245 )1, under eligibility as

follows:

245.1 Eligibility. 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 . .." (Emphasis supplied.)

The respondent was employed aboard the vessel. He admits this.

He stated that he worked from approximately 7 a.m. until 6 p.m:

serving meals, washing dishes, etc., and that he served- the crevi)

(Tr..-p. 14) He also stated. that by taking this employment the Mtis:

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Interim Decision #1516

ter was able to assign the regular on that job to other tasks, specifically stating at page 12:

Q. In any event, this so-called subordinate assigned you to serving certain

naval personnel and other officers of the vessel_ is that so?

.a. Well yes. He told me to serve the crew of the ship as there had beeu another man who was doing this work and they assigned him to do something

'else and they gave me his work to serve breakfast, lunch and the other meals

to the crew.

The respondent stated that he paid $100 plus the work that he did

for his passage and that the understanding was that he was to pay

approximately half of his passage. Since the voyage from Colombia

to the United States was only six or seven days, payment of $100 in

United States currency for this amount of work was substantial and

in all probability equalled if not exceeded the normal rate of pay.

This is not the case of a Captain who out of sympathy or generosity assisted an alien wishing tosome to the United States. It was

a legitimate ftill-time employment at substantial wages, relieving a

regular member of the crew who was thereby able to take another

assignment. It may be true that the respondent was only interested

in passage to the United States. However, from the standpoint of

the Captain there was no question but that he was a regular member

of the crew and he was so manifested at the time he was employed •

in Colombia. It is true that the immigrant inspector upon arrival .

conludethaRwsimprolynfetdas,mbroh

craw, but this does not change the basic thought in the Captain's

mind at the time he employed the respondent.

It may be true as stated by the majority decision that Congress

did not intend to •preclude workaways from the benefit of the provisions of section 245, supra. However, the regulation which has the

full force of law definitely •and unequivocally states otherwise:

It

may be that it is a bad regulation. However, if this be true the way

to remedy it is by amendment under the regular procidure provided

therefor and not by erroneous interpretation. Many persons applying for admission to the United States for permanent residence arrive as workaways, It is a large group and this is not an isolated

case not likely to occur again. If the interpretation given by the

majority is to be the guide for the future it should be made so by an

amendment to the regulations, so stating. •

Even were the respondent to be found eligible for section 245 relief, I seriously doubt whether he should be given the benefit thereof.

He is single, has no ties in the United States and came here for a

few days as a temporary visitor. He is a noninnnigrant alien and

in my opinion should be required to comply with the law and secure

a nonquotu immigration visa in his native country.

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