Interim Decision #1285 

MATTER or GONCALVES 

In DEPORTATION Proceedings 

A-9948279 

Decided by Board June 4, 190 

Since respondent's entry in transit in pursuit of his calling as a seaman to reship foreign on another vessel constitutes entry as a crewman, he is statutorily 

ineligible for suspension of deportation and for adjustment of status under 

sections 244 and 245, respectively, of the Immigration- and Nationality Act, as 

amended. 

CHARGE: 

Act of 1824—Remained. longer—transit. 

On February 19, ,1963 the Board denied respondent's motion to reopen proceedings to enable him to apply for relief under sections 241 

and 245 of the Act. Reconsideration is requested of the order insofar 

as it relates to section 245 of the Act. The motion will be denied. 

Respondent, a 43-year-old married male alien, a native of the Cape 

Verde Islands and citizen of Portugal, last entered the United States 

on December 7, 1947. A seaman employed on an American vessel sold 

abroad, he was brought back to the United States in transit so that he 

-could ship foreign; he was admitted until January 4, 1948, for that 

purpose. Unable to obtain employment as a. seaman after several 

months of search, either because of a strike or because of the fact that 

he was an alien, he took a job in the United States. 

On March 26, 1952 a hearing officer found respondent deportable on 

the ground that he had remained longer than the time for which he 

had been admitted_ The hearing officer denied discretionary relief_ 

Upon appeal, the Board considering respondent's request for suspension of deportation and voluntary departure decided (April 14, 

1953) that suspension was not merited but did grant voluntary 

departure. 

The respondent did not depart. On July 31, 1954 he married a 

woman who believing herself to be a citizen of the United States, 

filed a petition to enable him to obtain a nonquota visa. The petition 

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was granted on June 13, 1962 after a delay which had been caused 

by an issue raised by the Service as to the wife's citizenship. Respondent then filed a motion for the reopening of deportation proceedings to enable him to apply for relief under sections 244 and 245 

of the Act. On February 19, 1963 the Board denied the application 

for reopening of proceedings on the ground that the respondent was 

ineligible for either of the reliefs. The Board held that since seamen 

are barred from the reliefs, and since respondent's entry in transit 

to ship on another vessel constituted an entry as a seaman, he was 

barred. 

The provision of law on which the Board based its ruling that 

respondent was ineligible for relief under section 244 of the Act 

(suspension of deportation) follows: 

No provision of this section [s/d) shall be applicable to an alien who (1) 

entered the United States as a crewman; or (2) was admitted to the United 

States pursuant to section 101(a) (15) (J) of this title or has acquired such 

status after admission to the United States; or (3) is a native of any country 

contiguous to the United States or of any adjacent island named in section 

101 (b) (5) of this title : (section 244(f) of the Act). 

Counsel contends that respondent was not admitted to the United 

States as a crewman but in transit, and is therefore not a crewman 

barred from relief. That admission to the United States must be 

made in the status of a crewman to bring about an alien's ineligibility 

for suspension of deportation, is deduced by counsel from a compari-

. son of sections 244 and 245 of the Act. That comparison indicates 

to him that alien crewmen as a class are barred from relief by section 

245 but that only alien crewmen who were formally admitted to the 

United States under the law relating to the admission of alien crewmen are barred from relief under section 244. Counsel draws this 

conclusion from the fact that section 241 of the Act grants relief to one 

"other than an alien crewman" whereas section 244 of the Act grants 

relief unless the alien "entered the United States as a crewman" 

(emphasis supplied). Counsel finds the difference in language of 

particular significance since in revising section 244 of the Act (1962) 

after the phrase concerning crewmen in section 245 of the Act had 

been in use since 1960, Congress did not make use of the language of 

section 245 of the Act. 

Let us examine the contention that the term "entered" in section 

244(f) of the Act was used to indicate that an alien had been formally 

authorized by the Service to enter the United States as a crewman. 

The word "entry" as applied to respondent who was not a returning 

resident means any physical passing from a foreign place to the United 

States whether legally or illegally made, except a passing wader the 

terms of a parole (Matter of Anastasopazdos, Int. Dec. No. 1154). 

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There is nothing in section 244(f) of the Act which requires that the 

term be given any but its well recognized meaning; the term thus 

cannot mean the formal admission of a crewman as such by a Service 

official. 

That a formal admission of a crewman by the Service was not contemplated, may be seen from the fact that the very section in question 

which makes crewmen who "entered" ineligible provides for the ineligibility of participants in a Department of State program who 

were "admitted to the United States pursuant to section 101(a) (15) 

(J)" of the Act (emphasis supplied). The use of the term "entered" 

for seamen and the use of the word "admitted" for a different class 

well disposes of the argument that Congress intended to bar only aliens 

who were "admitted" as crewmen. 

Another reason for rejecting counsel's contention that only aliens 

who were-legally admitted in the status of crewmen are barred from 

relief is the fact that such a law would favor the alien who entered 

illegally over the one who entered legally. If indeed only an alien 

who was "admitted" as a crewman is barred from relief, then the 

crewman who entered illegally, i.e. the one ordered detained on board 

his vessel who escaped into the United States, would not be barred 

from relief. It is hardly likely that Congress intended such a result. 

Rather, we believe it was the intent of Congress to bar all occupational 

seamen who entered by reasuu of their occupation. This result would 

best meet the problem which faced the Congress—the fact that seamen 

who have relatively easy access to the United States have used the 

seaman route to enter the United States for permanent residence—a 

problem which has engaged a good deal of the Service energies and 

which would be aggravated if persons having easy access to the United 

States were of the belief that they could obtain legal residence by 

,deserting and hiding out (Hearings, Subcommittee on Appropriations 

H.R. (Dept of Justice) 85th Cong., 2d Sess. pp. 13-14, 199 (1959) ; 

86th Cong., 1st Sess. pp. 25, 305 (1960) ; 86th Cong., 2d Sess. pp. 409-

411 (1961). In light of this problem it matters little 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 United States as a passenger or 

workaway to reship as a seaman on another vessel. 

We believe that the respondent is barred from relief because he 

entered in pursuit of his calling as a seaman. That he entered by 

reason of his occupation is clear from his testimony which shows he 

entered the United States to ship out as a seaman (pp. 2-3), by the 

record of his entry which shows that he entered as a crew member, that 

he was a seaman and was coming to the United States to reship 

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foreign (Ex. 4), and by the fact the same record shows that for head 

tax purposes, respondent was placed under 8 CFR 105.3 (k) which 

dealt with the nonresident occupational seaman who was entering the 

United States temporarily in pursuit of his occupation, or as a passenger or workaway and who was admitted solely for the purpose 

of reshipping foreign. 

ORDER: It is ordered that the motion be and the same is hereby 

denied. 

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