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General, in his discretion and under such regulations as he may prescribe to that of an alien lawfully admitted for permanent residence. ***. (Emphasis supplied.) The appeal from this latter decision, which brings the case before this Board for consideration, contains the basic contention that the respondent does not fall within the statutory proscription.
Solution to the question thus raised requires reference to section 101 (a) (10) of the Immigration and Nationality Act (8 U.S.C. 1101), which defines a "crewman" as "a person serving in any capacity on board a vessel or aircraft," and section 101(a) (15) (D) thereof, which further characterizes a "crewman" as one "*** required for normal operation and service on board a vessel *** who intends to land *** in pursuit of his calling as a crewman ***.” We must read these two provisions of the law together with section 245 so that the statute will produce a harmonious whole. We conclude that, for the purposes of this case, two elements are required to constitute an alien a "crewman": (1) He must be serving aboard a vessel in a capacity required for its nor
mal operation; and (2) He must be seeking (and gain) admission to this country because of his
occupation in that role. In our opinion, the following facts establish the existence of these two essential requirements in this case.
The respondent's modus vivendi since 1958, a period of 12 years, has primarily, if not exclusively, resulted in his presence and service aboard private vessels as skipper, mate, or cook and deckhand. Since 1962, except for a five months' vacation in Australia in 1964 and a three months' sojourn in Canada in 1968, supra, he has been connected with the yacht “Tatoosh,” a pleasure craft of American registry based in Seattle. He does the general maintenance work on the vessel when it is in port (p. 33), and does the deckhand work, takes care of the engines, etc., when it is at sea (p. 34). He is the only deckhand, and in addition, does the general cooking aboard (pp. 33, 34, 35). These factors convince us that the respondent is a crewman by occupation.
The respondent submitted in support of his visa petition, which was approved on July 31, 1968, a labor certification issued by a lawful representative of the United States Secretary of Labor.
3 We are unable to determine from this record why respondent did not simply go to Canada and obtain his immigrant visa at the United States Consulate in Vancouver, where his petition had been sent.
This document certified the respondent for employment aboard the "Tatoosh" as a "specialty cook—able bodied seaman." The respondent stated in support of that document that for the preceding five years he had managed the food buying for the "Tatoosh,” run its galley, and done the catering for parties aboard it (Supplementary Statement B). These factors lead us to conclude that the respondent's last entry on March 4, 1968, was sought and gained solely in pursuit of his occupation.
It is immaterial that the respondent was admitted as a nonimmigrant temporary visitor for pleasure (B–2). The reason is that a formal admission as a crewman is not required in finding that respondent, upon arrival, intended to pursue his calling as a crewman aboard the "Tatoosh." In other words, it is substance rather than form which controls, and the former is adverse to the respondent. All we can add, in this connection, is that this case is factually distinguishable from one where an alien crewman, serving and manifested as such, presents a B-2 visa and is admitted as a temporary visitor upon a showing that he is not entering in pursuit of his calling;' and that this respondent's ineligibility for relief stems from a specifically applicable statutory proscription rather than from an unsustained ground of deportability.
It is of no assistance to the respondent that he has been professionally trained as a cook and baker and has unchallenged credentials with respect to these occupations, or that his labor certification shows clearly that his admission will not constitute any infringement upon the job potential of any United States citizen. Even if he were employed only as the cook aboard the “Tatoosh,” he would still be a crewman. Also, an affidavit sworn to by the respondent on February 1, 1968, apparently in connection with his visa petition, to the effect that he intended to immigrate to the United States as a specialty cook, viewed in the light of the fact that his home has been in the United States for the last 12 years (p. 21) and the timing of his visa and labor certification applications in relation to his last entry, might well militate against favorable exercise of relief as to the respondent, as a matter of discretion.?
We reject the contention that the respondent is not a "crewman" within the contemplation of the law because he has never served in the capacity of a merchant seaman aboard commercial vessels. Legally speaking, for administrative fine purposes under the Immigration and Nationality Act, we have held that the statute applies to “any vessel,” including privately owned pleasure craft engaged in no commerce whatsoever, and we see no reason to hold otherwise here. This is particularly true in view of the fact that section 101 (a) (15) (D) of the statute specifically exempts from the term "a vessel" only a "fishing (commercial) vessel having its home port or operating base in the United States."
4 Matter of Rebelo, Interim Decision No. 1926 (BIA, 1968). 5 Cf. Matter of T-,5 I. & N. Dec. 459 (BIA, 1953). 6 Norris, The Law of Seamen, sec. 3. 7 Matter of Vega, 11 I. & N. Dec. 337 (BIA, 1965).
Finally, we are not impressed by the assertion that the respondent was merely a guest aboard the vessels on which he served, receiving only gifts, board and room, and no regular salary, until 1968 when, after his visa petition was approved, his employer started paying him wages of $500 a month. We agree with the special inquiry officer that this arrangement would be most unusual and unique, but would not affect the outcome of the respondent's case because, whatever he was getting, he was receiving some remuneration for the work he did. Our opinion in this respect is in no way altered by the respondent's testimony that for some time after he left Australia he received monthly payments from the sale of his business there for $4,000 (p. 32).
Accordingly, and in view of the foregoing, no change will be made in the special inquiry officer's order. All we need add is that, as we have pointed out in Matter of Aguirre, Interim Decision No. 1940 (BIA, 1969), the execution of the special inquiry officer's order has been stayed during the pendency of this appeal.
ORDER: It is ordered that the appeal be and the same is hereby dismissed.
It is further ordered that, pursuant to the special inquiry officer's order, the respondent be permitted to depart from the United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special inquiry officer's order.
8 See Matter of HMS “Bounty," 10 I. & N. Dec. 391 (BIA, 1966).
MATTER OF HARRISON
In Section 249 Proceedings
Decided by District Director March 11, 1970
Applicant, who has resided continuously in the United States since entry in
1915 except for an absence of 3 years and 5 months while serving in the Canadian Armed Forces during World War II, did not by such absence break the continuity of residence for the purpose of section 249, Immigration and Nationality Act, as amended, since there is no evidence he ever intended to abandon his residence in the United States, not having established a residence in another country during such absence, having maintained a mailing address in this country where he resided prior and subsequent to service in the Canadian Army, and having returned to the United
States immediately upon discharge from the Canadian Army. ON BEHALF OF APPLICANT: Ben C. Shapero, Esquire
Dr. Simon Harrison was born in Canada on October 5, 1912. He claims that he first entered the United States on August 16, 1915, in the company of his father, mother, two brothers and sister. (This is verified by form 1-404 on file, which also reflects that the children, including subject, were admitted as United States citizens.) The applicant claims that he has traveled to Canada on numerous occasions since entry, but has stayed no more than a few days on each visit, except for an extended absence while serving in the Canadian Armed Forces during the Second World War. He has apparently gained readmission on each occasion through claim to United States citizenship.
He advised that until recently he had presumed that he was a citizen of the United States through his father's naturalization on June 27, 1927. The file indicates that he would have derived citizenship through this act had he been lawfully admitted to the United States for permanent residence in 1915, rather than erroneously admitted as a United States citizen.
The applicant claims that at the start of United States involvement in the Second World War he applied for a commission in the United States Army based on his profession as a dentist. He allegedly was unsuccessful since in order for a dentist to qualify for a commission he had to first be approved by a three man Dental Association Board. At that time the association was active in supporting proposed legislation to outlaw the practices of persons known as "Advertising Dentists." Dr. Harrison claims that he had worked for such a dentist for a short period of time and was, therefore, looked on with disfavor by the board. He was advised by the Selective Service that lacking the board's approval he could not be accepted for a commission but instead likely would be drafted as a private at a later date. (He was classified A-3 at that time.)
Dr. Harrison stated that a short time later, while on a visit to London, Ontario, Canada, he decided to check on the possibility of securing a commission in the Canadian Army. After some consultation the Canadian authorities agreed to accept him as an officer. He claims that prior to receiving his commission he inquired of the Canadian officials if there was any chance of losing his United States citizenship through service in their army. He allegedly was assured that so long as he did not take an oath of allegiance to the British Crown he would retain his citizenship. His claim concerning this matter is supported by a letter from the Department of Veterans Affairs stating that they have no record of his taking the oath and a letter from the Canadian Department of National Defence certifying that he did not take the oath. A certified copy of Statement of Service in the Canadian Armed Forces on file reflects that Dr. Harrison was inducted into the Canadian Army at London, Ontario, Canada, on September 29, 1942. He served in the theatres of Canada, Britain, Central Mediterranean and Northwest Europe, and was honorably discharged with the rank of captain on February 23, 1946.
Since the applicant was not in fact a citizen of the United States at the time of his service in the Canadian Army, the above claims concerning the oath of allegiance were presented for whatever consideration warranted in support of his contention that he has had a continuous residence in the United States since prior to July 1, 1924, notwithstanding his absence of three years and five months during World War II.
The record reflects that the applicant has resided continuously in the United States since entry in 1915 except for the abovementioned period of time. There is no evidence that he established any residence in another country during this period. By contrast there is ample evidence that he intended to, and in fact did, return to the United States immediately upon discharge from