In MIA’s last article, we discussed the important effect of a crewmember visa designation: the inability to apply for Adjustment of Status (“AOS”) or Cancellation of Removal (“COR”). Because those aliens who are qualified as crewmembers are likely barred from AOS and COR, the Courts have spent a significant amount of time debating what legal test or standard should be used to define a “crewman.”
MIA urged that if you, the reader, took anything from the first article, it should be this two-prong inquiry in determining whether an alien was admitted as a crewman: the Court MUST examine both (1) the alien’s visa, as well as (2) the circumstances surrounding his entry into the U.S., to ascertain whether they entered in pursuit of their occupation as a seaman. This plainly ambiguous test leaves lots of room for factual differentiation on a case-by-case basis. Thus, to help flesh out the circumstances that have led to a ruling of eligibility or ineligibility, we have examined 19 key cases from the annals of crewmember case law.
Timeline of Cases:
The following are several cases that have constructed the law determining whether an alien is a crewman, and therefore ineligible for Adjustment of Status:
1. Matter of Tzimas, 10 I. & N. Dec. 101 (BIA 1962).
2. Matter of Goncalves, 10 I. & N. Dec. 277 (BIA 1963).
3. Matter of Quintero-Correa, 11 I. & N. Dec. 343 (BIA 1964).
4. Matter of Rebelo, 13 I. & N. Dec. 84 (BIA 1968).
5. Matter of Campton, 13 I. & N. Dec. 535 (BIA 1970).
6. Matter of Loo, 15 I. & N. Dec. 601 (BIA 1976).
7. Matter of M/T “Rajendra Prasad”, 16 I. & N. Dec. 705 (BIA 1979).
8. Parzagonis v. I.N.S., 747 F. 2d 1389, 1390 (11th Cir. 1984).
9. In Re: Rehman Saidur, 2005 WL 649059 (2005).
10. Matter of G-D-M-, 25 I. & N. Dec. 82 (BIA 2009)
11. Rodriguez v. U.S. Atty. Gen, 355 Fed. Appx. 372 (11th Cir. 2009).
12. Sarup v. Attorney General of U.S., 423 Fed. Appx. 231 (3d Cir. 2011). [3/6/11]
13. In Re: Everton Dane Henry, 2011 WL 1373664 (2011).
14. Beri v. U.S. Atty. Gen., 438 Fed. Appx. 841 (11th Cir. 2011) [8/23/11]
15. Lewis v. U.S. Atty. Gen., 2012 WL 2946062 (2012)
16. Gonzalez v. Holder, 673 F. 3d 35 (1st Cir. 2012).
17. In Re: Andrius Urvakis, 2012 WL 1495515 (2012).
18. Petitson v. U.S. Atty. Gen, 2012 WL 2890568 (11th Cir. 2012).
19. Chica-Roman v. Attorney General of U.S., 462 Fed. Appx. 221 (3d Cir. 2012).
THE FIRST TEN CASES – TZIMAS TO G-D-M-
1. Matter of Tzimas, (1962) – THE BIG FIRST CASE – C-1 VISAHOLDER DENIED AS “CREWMAN” DESPITE NO D VISA
Mr. Tzimas’ background and entry into the U.S.:
In this 1962 case, the Court found that an alien who was admitted in transit by virtue of Section 101(a)(15)(C) (a.k.a. the C-1 visa) was ineligible for Section 245 relief as a crewman, because he was destined for employment as a seaman.
The alien, Tzimas, was a 25-year old married male, native and citizen of Greece, who was admitted to the U.S. in 1961, upon his presentation of a C-1 visa, alien in transit, bound for a steamship line for employment as a seaman on a vessel. When he arrived, Tzimas had a seaman’s book to ship as a crewman. Because Tzimas was injured, he was allowed to remain in the U.S. for a month. Rather than leave, Tzimas divorced his wife in Greece and remarried to a U.S. citizen in 1962. His new wife filed a visa petition, which was approved, but then Tzimas applied for an Adjustment of Status (“AOS”). Tzimas later admitted that when he came to the U.S., he came to reship on a vessel of the line on which he arrived.
The decision on Mr. Tzimas’ entry: NO ELIGIBILITY FOR ADJUSTMENT OF STATUS
The BIA held affirmed the decision that Tzimas was not eligible for AOS under these circumstances because he fell into the definition of a “crewman.” The Court further held that an alien, who on arrival in the U.S. was serving in any capacity on board a vessel or aircraft, or was destined to join a vessel or aircraft in the U.S. to serve in any capacity thereon, or was not admitted or paroled following inspection by an immigration officer, is not eligible for AOS.
This case set the stage for denying eligibility to adjust status if an alien entered as a crewmember.
Next Case: The Matter of Goncalves (1963).