Interim Decision #2478 

MATTER OF Loo 

In Deportation Proceedings 

A-11407844 

Decided by Board March 3, 1976 

Respondent, who initiallygained admission to this country by virtue of a 1954 judgment of 

a court declaring him to be a citizen of the United States; who, many years after the 

court judgment, took up the occupation of seaman which he followed from 1963 until 

February of 1966, shortly after which he confessed alienage; and who effected all of his 

seaman entries as the citizen he had been adjudged to be, is not precluded by the 

"crewman" provision of section 244(f)(1) of the Immigration and Nationality Act, as 

amended, from establishing statutory eligibility for suspension of deportation under 

section 244(a) of the Act, as amended. 

CHARGE: 

Order: Act of 1952—,5ection 241(a)(2) [8 U.S.O. 1251(a)(2)) – In the United States in 

violation of law. 

ON BEHALF OF RESPONDENT: Robert S. Bixby, Esquire 

Fallon, Hargreaves, Bixby & McVey 

30 Hotaling Place 

San Francisco, California 94111 

The respondent is a native and citizen of China who has been found 

deportable under section 241(a)(2) of the Immigration and Nationality 

Act as an alien who is in the United States in violation of the Act. The 

only questions presently unresolved in this case relate to the respondent's application for suspension of deportation under section 244(a)(1). 

In a decision dated September 25, 1975, the immigration judge found 

that the respondent had entered the United States in 1966 as a crewman 

and that he was statutorily precluded from receiving suspension of 

deportation by virtue of section 244(f) of the Act. The immigration judge 

certified his decision to us for review. The decision of the immigration 

judge will be reversed;and the respondent's application for suspension 

of deportation will be granted. 

The record indicates that the respondent first arrived in the United 

States on July 21, 1951, and then sought admission as a United States 

citizen. He was initially ordered excluded. However, he obtained a court 

decree, dated January 29, 1954, declaring him to be a citizen of the 

601 
Interim Decision #2478 

United States. Later, in 1958, the respondent was also issued a certificate of citizenship. In February of 1966 the respondent confessed his 

alienage. The court decree was set aside in July of 1966, and the 

certificate of citizenship was cancelled in October of 1966. 

The record indicates that the respondent came to the United States in 

1951 on board the SS "President Wilson." It is not clear whether he 

came as a passenger or as a crewman. A resolution of this point, 

however, is not necessary because the respondent's 1951 entry cannot 

be used to deny him suspension of deportation under the present wording of section 244(f). See Siang Ken Wang v. INS, 413 F.2d 286 (C.A. 9, 

1969). 

At the time of his arrival in 1951, the respondent formally applied for 

admission as a United States citizen and not as an alien. Thereafter, the 

respondent appears to have worked in numerous jobs, such as waiter, 

busboy, or cashier, until 1963 when he began to work as a seaman. 

Between 1968 and 1966, the respondent made approximately twelve 

voyages abroad as a United States citizen seaman. He last entered the 

United States on February 2, 1966, as a citizen, but after returning from 

a voyage as a seaman. The respondent evidently terminated his occupation as a seaman on February 4, 1966, two days after his last entry. As 

indicated, he shortly thereafter confessed his alienage. 

Section 244 of the Act sets forth the requirements for suspension of 

deportation. Section 244(f) provides in relevant part: 

(f) No provision of this section shall be applicable to an alien who (1) entered the 

United States as a crewman subsequent to June 30, 1964 . . . . 

The question before us is whether the respondent's entries after June 

30, 1964 make him ineligible for suspension of deportation. 

The term "crewman" is defined in section 101(a) (10), which provides: 

(10) The tern. "crewman" means a person serving in any capacity on board a vessel or 

aircraft. 

The Act also allows a qualified "crewman" to be admitted to the United 

States in the status of a "nonimmigrant crewman." The requirements 

for this status are set forth in section 101(a)(15)(D), which -provides: 

(15) The tent "immigrant" means every alien except an alien who is within one of the 

following classes of nonimmigrant aliens— 

(D) an alien crewman serving in good faith as such in any capacity required for 

normal operation and service on board a vessel (other than a fishing vessel having its 

home port or an operating base in the United States) or aircraft, who intends to land 

temporarily and solely in pursuit of his miring as a crewman and to depart from the 

United State., with the vessel or aircraft on which ho arrived or come other vessel or 

aircraft. 

The cases indicate that section 101(0(10 and section 101(a)(15)(D) must 

602 
Interim Decision #2478 

be read in conjunction when construing the crewman provision of section 245, a provision which is analogous to the quoted portion of section 

244(f). Matter of Campton, 13 I. & N. Dec. 535 (BIA 1970); Matter of 

Rebelo, 13 I. & N. Dec. 84 (BIA 1968). If certain requirements are met, 

section 245 permits the adjustment of status of "an alien, other than an 

alien crewman . . . ." (Emphasis supplied.) 

The basic purpose behind the crewmen provisions of section 244(f) 

and section 245 is similar, although the wording of the provisions is not 

identical. Thus, we have noted in connection with both provisions that 

Congress was attempting to deal with the problem of the alien who uses 

the seaman's route to gain relatively easy access to the United States 

and to enter for the purpose of residing permanently. See Matter of 

Quintero-Correa, 11 I. & N. Dec. 343, 346-47 (BIA 1964); Matter of 

Goncalves, 10 I. & N. Dec. 277, 279 (BIA 1963). 

The problems in construing these preclusions from relief for crewmen 

have generally arisen when the alien in question obtained admission to 

the United States in a status other than that of a section 101(a)(15)(D) 

nonimmigrant crewman. In Matter of Tzimas, 10 I. & N. Dec. 101 (BIA 

1962), we found that an alien who was admitted in transit by virtue of 

section 101(a)(15)(C) was ineligible for section 245 relief as a crewman, 

because he was destined for employment as a seaman. Similarly, in 

Matter of Goncalves, supra, we indicated that an alien who was admitted to the United States as a nonimmigrant in transit was ineligible for 

suspension of deportation because he was occupationally a seaman who 

was entering in pursuit of his calling as a seaman. In Gmicalves, we 

rejected the argument that the status in which an alien was admitted 

governed whether or not he had entered as a crewman within the 

contemplation of section 244(f). 

However, in Matter of Quintero-Correa, supra, we found that an alien 

who was admitted with a nonimmigrant visitor's visa was not statutorily 

precluded from receiving adjustment of status as a crewman, even 

though he arrived on board a vessel on which he had worked regular 

hours serving meals to the crew. The alien apparently came within the 

section 101(a)(10) definition of a crewman; however, he was not a seaman by occupation, he had obtained admission as a properly documented 

nonimmigrant visitor, and it was mere happenstance that he arrived in 

the United States after serving on board a vessel. 

In Matter of Rebelo, supra, we dealt with an alien who was admitted 

to the United States as a nonimmigrant visitor. The alien, however, had 

served as a crewman for a 25-year period immediately preceding his 

admission, had served as the ship's engineer on the vessel which 

brought him to the United States, and had been listed on the ship's 

manifest as a crewman. We nevertheless found that he was not statutorily precluded from receiving adjustment of status, primarily because he 

603 
Interim Decision #2478 

had convinced a consular official that he was eligible for a visitor's visa, 

and because he was properly admitted as such. 

In Matter of Campton, supra, however, we took a somewhat different 

approach to the crewman question. In Campton, the alien had last 

entered the United States by automobile with a nonimmigrant visitor's 

visa evidently after a three months' visit to Canada. The alien, however, 

had been a crewman for the prior twelve years and was coming to the 

United States for the purpose of continuing his crewman's occupation. 

We held that the alien was not eligible for adjustment of status, and we 

distinguished Matter of Rebelo, supra, on the ground that in Rebelo 

there had been a showing that the alien was not entering in pursuit of 

his calling as a seaman. 

These cases are not entirely consistent, and, as the immigration judge 

correctly notes, some of the discussion in Rebelo can be seriously questioned. However, all of these cases deal with aliens who were admitted 

to the United States in some nonimmigrant status. The respondent, on 

the other hand, was admitted in each instance as a United States citizen. 

Although his claim to citizenship was false, it was virtually unassailable 

at the time because it was supported by the final judgment of a court. 

The respondent therefore was not in the same position'as either an alien 

seeking admission in a nonimmigrant status or an alien making a simple 

false claim to United States citizenship. 

We need not now attempt to resolve all the issues presented by the 

statutory exclusion of crewmen from the forms of relief of adjustment of 

status and suspension of deportation. We merely hold that the preclusion of suspension of deportation for a crewman contained in section 

244(f) does not apply to an individual who initially gains admission to the 

United States by virtue of a judgment of a court declaring him to be a 

citizen, who Many years after the court judgment takes up the occupation of seaman, and who effects all of his seaman entries as the citizen he 

has been adjudicated to be. 

The respondent did not use the crewman's route to gain access to the 

United States from 1963 to 1966. He was at that time a person who had 

been declareci to be a citizen of the United States, and it was mere 

happenstance that he took up the calling of the sea. See Matter of 

Quintero-Correa, supra. The respondent's entries after June 30, 1964 

were accomplished by virtue of his status as a United States citizen, not 

by virtue of h:s occupation. Our decision in Matter of Goncalves, supra, 

indicates that his admission in that status may not necessarily be controlling; however, it is a factor for consideration as indicated by Matter 

of Quintero-Correa, supra, and Matter of Rebelo, supra. We hold that 

this respondent Is not precluded from receiving suspension of deportation by virtue of the "crewman" provision in section 244(f) of the Act. 

When this ease was last before the immigration judge, an updated 

604 
Interim Decision #2478 

Service investigation was introduced into evidence, and additional testimony was taken with respect to the respondent's application for suspension of deportation. In view of this update of the record, we need not 

remand for an exercise of discretion by the immigration judge. 

The respondent is presently 53 years old. The record indicates that he 

fled mainland China in 1949 or 1950, that he resided briefly in Hong 

Kong, and that he has made his home in the United States since 1951. 

He has not left the United States since 1966. The respondent testified 

that he has a daughter who is a lawful permanent resident, and that he 

has made a small investment in the United States business in which he is 

employed. 

The Service investigation has revealed no recent derogatory information, except for an arrest in 1971, which resulted in the charges being 

dismissed. We find that the respondent satisfies the physical presence 

and good moral character requirements of section 244(a)(1), and that he 

would suffer extreme hardship if deported from the United States. 

Deportation of the respondent would not only cause him significant 

economic hardship, but it would also separate him from his home and the 

ties he has developed in this country over the last 25 years. Finally, we 

are of the opinion that the respondent should receive a favorable 

exercise of discretion on his application for suspension of deportation. 

The decision of the immigration judge will be reversed, and the 

respondent's application for suspension of deportation under section 

244(a)(1) will be granted. 

1ORDER: The decision of the immigration judge is reversed. 

Further order: The respondent's deportation is suspended under section 244(a)(1) of the Immigration and Nationality Act. 

Further order: If Congress takes no action adverse to the order 

granting suspension of deportation, the proceedings shall be cancelled, 

and appropriate action shall be taken pursuant to section 244(d) of the 

Immigration and Nationality Aet, as amended. 

Further order: In the event Congress takes action adverse to the 

order granting suspension of deportation, these proceedings shall be 

reopened upon notice to the respondent. 

1Chairman David L. Milhollan abstained from consideration of this case. 

605