MATTER OF QUINTERO-CORREA
A-12774443
In Deportation Proceedings
January 14, 1964
Interim Decision #1516 | 11 I. & N. Dec. 343
CHARGES:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant (temporary visitor for pleasure)—remained longer.
The special inquiry officer, in a decision dated September 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 adjustment of status, ante.
The record relates to a 21-year-old single male alien, a native 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 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 deportability on the above-stated charge, and it is uncontested. This aspect of the case, therefore, requires no further comment.
The special inquiry officer has found the respondent eligible for voluntary departure and granted such relief. The record supports
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
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 vessel * * * 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
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. After 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.
Eventually, he decided to come to the United States for a visit 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 letter 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 passage 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 did 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 passengers and indicated that the ship carried none.
He 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 temporary visitor for pleasure.
The foregoing facts reveal that the respondent had no history of being occupationally a crewman. He obviously was not a stranded
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
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
Despite the foregoing, however, the special 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.6 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 intent.8 Accordingly, and in view of the intent of the Congress spelled out in Matter of G— (5, ante), as well as the following considerations:
- the alien had no background as a seaman;
- he was not classifiable as such under maritime law;
- he did not sign the ship‘s articles;
- the immigration officer required that he be manifested as a passenger;
- he was in possession of a visitor‘s visa and was admitted as such; and
- 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.9
An 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 ruling in this case will create an enforcement problem of the nature the Congress was intending to cure. In the first place, mere convenience of enforcement cannot justify a strained construction in the language used.10 Secondly, our decision will not result in a spate of aliens coming into the United States in the manner this one did, for the same reasons which led the Master 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
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 R. 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 245(a), Immigration and Nationality Act) states in clear language: “The status of an alien, other than an
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 CFR 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 * * *.” (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 respondent 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 crew (Tr. p. 14). He also stated that by taking this employment the Mas-
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 been 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 to come to the United States. It was a legitimate full-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 concluded that he was improperly manifested as a member of the crew, 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
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 nonimmigrant alien and in my opinion should be required to comply with the law and secure a nonquota immigration visa in his native country.