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sought to correct this inequity by giving this class of Cuban refugees an opportunity for the same retroactive benefits under section 2 as they could have obtained under section 1 had they not acquired lawful admission for permanent residence prior to the effective date of the Act.

We therefore reaffirm our decision in the Matter of Benguria y Rodriguez, 12 I. & N. Dec. 143, that an applicant cannot be eligible for the benefits of section 2 if he does not first come within the purview of section 1 of the Act. We find that the intent of Congress was to place aliens under section 2 on a par with those under section 1 and that the physical presence requirements of section 1 apply equally to section 2. In furtherance of this concept of parity, we affirm the District Director's finding that an applicant under section 2 of the Act may complete the two years physical presence in the United States subsequent to his lawful admission for permanent residence.

The clear intent of Congress in providing the retroactive features of both section 1 and section 2 of the Act of November 2, 1966 was to provide some credit for residence toward naturalization to those Cuban aliens who had established themselves and actually resided in the United States for some time as refugees and had not abandoned their residence here. We must distinguish between visits to the United States and residence. There is no indication that Congress intended to provide credit toward naturalization for brief visits to the United States nor for other periods of time when the alien was neither in fact nor in law an actual resident of the United States.

In establishing the effective date of the alien's record of admission for permanent residence, section 1 provides “***a date thirty months prior to the filing of such application or the date of his last arrival into the United States, whichever date is later." Section 2 provides “***the date the alien originally arrived in the United States as a nonimmigrant or as a parolee, or a date thirty months prior to the date of enactment of this Act, whichever date is later.” (Emphasis supplied.)

It was found in Matter of Riva, 12 I. & N. Dec. 56, that the term "last arrival" as used in section 1 and the term "originally arrived" as used in section 2 both refer to the same arrival in point of time, namely the alien's first arrival after January 1, 1959, on which occasion he was inspected and admitted or paroled into the United States. It was further found that a subsequent arrival after a temporary absence from the United States with no intention to abandon residence in the United States does not con

stitute the “last arrival" within the contemplation of section 1 of the Act.

Our applicant, in effect, asks that we adjust the date of his lawful admission to the United States for permanent residence from his actual date of admission for permanent residence (December 21, 1965) to May 2, 1964 (30 months prior to the date of enactment of the Act) on the basis of his entry as a visitor on December 11, 1960. If we could consider that he had resided in the United States continuously since December 11, 1960, we would have no problem. However, the record reflects that after the 1960 entry he remained in the United States as a bona fide visitor for about three months. He then departed and remained outside the country for over four years. He again visited the United States from April 27, 1965 to June 21, 1965 and from September 11 to 20, 1965. He is, therefore, in an entirely different posture from a refugee who, after initial arrival, actually resided in the United States but made brief visits abroad. Our applicant is actually asking that we credit him for time as a permanent resident toward naturalization during which he was not a resident of the United States and had been absent from the country for over four years. This was clearly not the intent of Congress.

As stated previously, we agree with the District Director that the two years of physical presence in the United States may be completed subsequent to admission as a lawful permanent resident. However, only physical presence completed subsequent to commencement of "residence" as that term is defined in section 101 (a) (33) of the Immigration and Nationality Act may be recognized. That section states in pertinent part: "The term 'residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” Thus, “residence” may be estab lished after admission in a temporary status. However, we find from the circumstances in this case that the applicant did not establish a residence prior to December 21, 1965, on which date he was admitted as an immigrant. In any event the applicant does not have two years of physical presence in the United States. Consequently, he is not eligible to have the record of his admission for permanent residence adjusted under section 2 of the Act of November 2, 1966. The application will be denied.

ORDER: The decision of the District Director, Miami, Florida is affirmed and the application is denied.

MATTER OF REBELO

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 temporary visitor for pleasure upon presentation of a valid nonimmigrant visa.

CHARGE:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251]—Nonimmigrant (temporary visitor for

pleasure)—remained longer.

ON BEHALF OF RESPONDENT:

Bertrand D. Gerber, Esquire
119 West 57th Street
New York, New York 10019

ON BEHALF OF SERVICE:

Robert A. Vielhaber
Appellate Trial Attorney

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 nonimmigrant 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

rary 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

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. 1255) 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, reveals that two ele

1 In re Public National Bank of New York, 278 U.S. 555.

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 respondent 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 intent. 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. 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, hd that ineligibility for discretionary relief (voluntary departure) must be based on a sustained charge of deportability.

3 Sutherland, Statutory Construction, 3rd ed., Vol. 2, secs. 3302 and 4936.

4 Matter of Goncalves, 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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