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MATTER OF QUINTERO-CORREA

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 under section 245, Immigration and Nationality Act, as amended, in the case of an alien who has no background as an occupational seaman, who was in possession of a valid unexpired nonimmigrant visa, and who was inspected and admitted as a temporary visitor for pleasure.

CHARGES:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant (temporary visitor for pleasure)-remained longer. 1.9..

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 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 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

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 * supplied.)

The latter states that:

(Emphasis

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 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. 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

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 supplied.)

The latter states that:

(Emphasis

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 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. 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