MATTER OF LOO
A-11407844
Board of Immigration Appeals
March 3, 1976
Interim Decision #2478; 15 I. & N. Dec. 601
In Deportation Proceedings
CHARGE:
Order:
ON BEHALF OF RESPONDENT: Robert S. Bixby, Esquire
Fallon, Hargreaves, Bixby & McVey
30 Hotaling Place
San Francisco, California 94111
The respondent is a native and citizen of China who has been found deportable under
The record indicates that the respondent first arrived in the United States on July 21, 1951, and then sought admission as a United States citizen. He was initially ordered excluded. However, he obtained a court decree, dated January 29, 1954, declaring him to be a citizen of the
The record indicates that the respondent came to the United States in 1951 on board the SS “President Wilson.” It is not clear whether he came as a passenger or as a crewman. A resolution of this point, however, is not necessary because the respondent‘s 1951 entry cannot be used to deny him suspension of deportation under the present wording of
At the time of his arrival in 1951, the respondent formally applied for admission as a United States citizen and not as an alien. Thereafter, the respondent appears to have worked in numerous jobs, such as waiter, busboy, or cashier, until 1963 when he began to work as a seaman. Between 1963 and 1966, the respondent made approximately twelve voyages abroad as a United States citizen seaman. He last entered the United States on February 2, 1966, as a citizen, but after returning from a voyage as a seaman. The respondent evidently terminated his occupation as a seaman on February 4, 1966, two days after his last entry. As indicated, he shortly thereafter confessed his alienage.
(f) No provision of this section shall be applicable to an alien who (1) entered the United States as a crewman subsequent to June 30, 1964 . . . .
The question before us is whether the respondent‘s entries after June 30, 1964 make him ineligible for suspension of deportation.
The term “crewman” is defined in
(10) The term “crewman” means a person serving in any capacity on board a vessel or aircraft.
The Act also allows a qualified “crewman” to be admitted to the United States in the status of a “nonimmigrant crewman.” The requirements for this status are set forth in
(15) The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens—
. . . .
(D) an 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.
The cases indicate that
The basic purpose behind the crewmen provisions of
The problems in construing these preclusions from relief for crewmen have generally arisen when the alien in question obtained admission to the United States in a status other than that of a
However, in Matter of Quintero-Correa, supra, we found that an alien who was admitted with a nonimmigrant visitor‘s visa was not statutorily precluded from receiving adjustment of status as a crewman, even though he arrived on board a vessel on which he had worked regular hours serving meals to the crew. The alien apparently came within the
In Matter of Rebelo, supra, we dealt with an alien who was admitted to the United States as a nonimmigrant visitor. The alien, however, had served as a crewman for a 25-year period immediately preceding his admission, had served as the ship‘s engineer on the vessel which brought him to the United States, and had been listed on the ship‘s manifest as a crewman. We nevertheless found that he was not statutorily precluded from receiving adjustment of status, primarily because he
In Matter of Campton, supra, however, we took a somewhat different approach to the crewman question. In Campton, the alien had last entered the United States by automobile with a nonimmigrant visitor‘s visa evidently after a three months’ visit to Canada. The alien, however, had been a crewman for the prior twelve years and was coming to the United States for the purpose of continuing his crewman‘s occupation. We held that the alien was not eligible for adjustment of status, and we distinguished Matter of Rebelo, supra, on the ground that in Rebelo there had been a showing that the alien was not entering in pursuit of his calling as a seaman.
These cases are not entirely consistent, and, as the immigration judge correctly notes, some of the discussion in Rebelo can be seriously questioned. However, all of these cases deal with aliens who were admitted to the United States in some nonimmigrant status. The respondent, on the other hand, was admitted in each instance as a United States citizen. Although his claim to citizenship was false, it was virtually unassailable at the time because it was supported by the final judgment of a court. The respondent therefore was not in the same position as either an alien seeking admission in a nonimmigrant status or an alien making a simple false claim to United States citizenship.
We need not now attempt to resolve all the issues presented by the statutory exclusion of crewmen from the forms of relief of adjustment of status and suspension of deportation. We merely hold that the preclusion of suspension of deportation for a crewman contained in
The respondent did not use the crewman‘s route to gain access to the United States from 1963 to 1966. He was at that time a person who had been declared to be a citizen of the United States, and it was mere happenstance that he took up the calling of the sea. See Matter of Quintero-Correa, supra. The respondent‘s entries after June 30, 1964 were accomplished by virtue of his status as a United States citizen, not by virtue of his occupation. Our decision in Matter of Goncalves, supra, indicates that his admission in that status may not necessarily be controlling; however, it is a factor for consideration as indicated by Matter of Quintero-Correa, supra, and Matter of Rebelo, supra. We hold that this respondent is not precluded from receiving suspension of deportation by virtue of the “crewman” provision in
When this case was last before the immigration judge, an updated
The respondent is presently 53 years old. The record indicates that he fled mainland China in 1949 or 1950, that he resided briefly in Hong Kong, and that he has made his home in the United States since 1951. He has not left the United States since 1966. The respondent testified that he has a daughter who is a lawful permanent resident, and that he has made a small investment in the United States business in which he is employed.
The Service investigation has revealed no recent derogatory information, except for an arrest in 1971, which resulted in the charges being dismissed. We find that the respondent satisfies the physical presence and good moral character requirements of
The decision of the immigration judge will be reversed, and the respondent‘s application for suspension of deportation under
ORDER:
The decision of the immigration judge is reversed.
Further order: The respondent‘s deportation is suspended under
Further order: If Congress takes no action adverse to the order granting suspension of deportation, the proceedings shall be cancelled, and appropriate action shall be taken pursuant to
Further order: In the event Congress takes action adverse to the order granting suspension of deportation, these proceedings shall be reopened upon notice to the respondent.