//
you're reading...
Law & Forms, Work Visas

Matter of Goncalves, (1963) – THE SECOND BIG CASE – INFORMAL CIRCUMSTANCES OF ENTRY ARE ADDED TO FORMAL VISA CLASSIFICATION


In this series, MIA goes over the important cases that define the present legal atmosphere of the crewmember’s visa, the C1/D. In MIA’s last articles, we discussed the important effect of a crewmember visa designation: the inability to apply for Adjustment of Status (“AOS”) or Cancellation of Removal (“COR”).  Again, the 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.

Striking members of the Rockettes and Corps de...

Striking members of the Rockettes and Corps de Ballet picket outside Radio City Music Hall, October 1, 1967. (Photo credit: Kheel Center, Cornell University)

In this case, the Court decides that:

BECAUSE “ENTRY” IS NOT A FORMAL ADMISSION BUT PHYSICAL PASSING, THE COURTS MUST CONSIDER INFORMAL CIRCUMSTANCES TO DETERMINE WHETHER AN ALIEN IS A “CREWMAN,” AND THUS INELIGIBLE FOR AOS AND COR.

The Court indicated that an alien who was admitted to the U.S. as a “nonimmigrant-in-transit” is ineligible for COR because he was occupationally a seaman who was entering in pursuit of his calling as a seaman. The Court rejected the argument that the visa status in which an alien was admitted governed whether or not he had entered as a “crewman.”

GONCALVES’S BACKGROUND TO THE U.S.

Goncalves, the alien who brought this case, was a 43-year old married man, a native of the Cape Verde Islands, and a citizen of Portugal. He was a seaman employed on an American vessel, but while at sea, the owner of his ship sold the ship. Goncalves came back through the U.S. in-transit, so that he could ship back out on another ship. The U.S. admitted Goncalves in 1948 for that in-transit purpose. Goncalves searched for a ship to work on and ship out on, he searched for several months, but nobody was hiring. There was a strike. So Goncalves took a job in the U.S. doing other work.

In 1952, the U.S. found Goncalves deportable for overstaying his admission. Instead of departing, Goncalves married a woman in 1954. This woman mistakenly believed herself a U.S. citizen and filed for Goncalves’s visa. Unbeleivably, the U.S. granted this visa in 1962, not catching the mistake. Goncalves then petitioned for an AOS, which the U.S. rejected based on his entry as an informal seaman in transit to ship on another vessel. In other words, he never received a formal designation as a crewman, but the U.S. denied him as a crewman anyway.

IN TRANSIT, NOT AS CREWMAN, IS NOT AN ARGUMENT TO STAY

Ellis Island as seen from Liberty Island, New ...

Ellis Island as seen from Liberty Island, New York City (Photo credit: Wikipedia)

Goncalves argued that he was admitted in transit, rather than as a crewman, and therefore could not be a crewman barred from relief. His argument relied on the technical status of C-1 versus D visas, and that only alien crewmen who were formally admitted to the U.S. under the law barring crewmen from AOS. The Court rejects this argument. Formality does not govern the decision.

WHAT IS ENTRY, EXACTLY?

The Court first analyzed the meaning of “entered.” For Goncalves, the word “entry” meant any physical passing from a foreign place to the U.S. whether legally or illegally made, except a passing made under the terms of a parole. The Court disagreed, deciding that the INA law did not require the meaning of “entry” to be limited to these formal terms. “Entry,” the Court said, did not only mean the formal admission of a crewman as such by a Service official. If the law only included those that formally entered as a crewman, then nobody would ever enter formally as a crewman (they would want to keep their AOS options open, as those who illegally entered into the U.S. would not be barred from relief).

The Court held that the intent of Congress was to bar all occupational seamen who entered by reason of their occupation.Seamen have a very special access to the U.S. that can be abused. In light of this problem, it mattered little to the Court that an alien is admitted as a crewman and deserts his ship, or that he deserted the ship without being permitted to land as a crewman, or that he, as is common-place, was brought to the U.S. as a passenger or workaway to reship as a seaman on another vessel.

Immigrants just arrived from Foreign Countries...

Immigrants just arrived from Foreign Countries–Immigrant Building, Ellis Island, New York Harbor. (Half of a stereo card) (Photo credit: Wikipedia)

Accordingly, because Goncalves entered in pursuit of his calling as a seaman, he was ineligible for AOS.

This case set the stage for denying eligibility to adjust status if you enter as a formally designated crewmember, or if you enter simply under the circumstances of a crewmember.

Next Case: Matter of Quintero-Correa, (1964).

Until next time. Stay tuned.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

MIA

Miami International Attorneys, P.L.

Advertisements

About Miami International Attorneys, P.L.

Miami International Attorney

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Visas – Info on Each Visa Available

Andrew John Bernhard, Esq.

Welcome to MiamiVisaHelp.com’s Blog!

Welcome to MiamiVisaHelp.com’s law blog … discussing everything visa from the perspective of those that have a need, desire, or tendency to move from country to country for the purpose of work, survival, education, living, play, and everything in between. Please feel free to send Andrew John Bernhard, Esq. a message! We are always trying to enhance your experience, and help all of us movers, migrators, immigrants, ex-pats and travelers have an easier, happier, and more satisfying experience in the often confusing world of U.S. Immigration. Please feel free to visit our friends at USImmigrationMiami.wordpress.com and TheMitochondrialMigrator.wordpress.com to see more from similar minded people like yourself! Most of all…ENJOY! - Andrew John Bernhard, Esq.

Miami Visa Help by Miami International Attorneys focused on immigration law in Miami and South Florida, discussing visas, citizenship, green cards, and immigration law news

%d bloggers like this: