MATTER OF B— 

In SECTION 245 Proceedings 

A-11589013 

Decided by Regional Commissioner March YS, 1950 

Approved by Assistant Commissioner 

Adjustment of status—Section 245 of 1952 act—Not available to crewman whose 

actions indicate he was not bona fide nonimmigrant at time of admission. 

(1) .Section 245 applicant has not met burden of establishing that be was a 

bona .fide crewman at time of last admission when the record shows that 

he was refused permission for discharge by the master of his vessel; that 

be proceeded from New Orleans to New York to become better acquainted 

with a United States citizen whom he had met before and to whom be was 

actually married three days after his arrival there. 

(2) Applicant's testimony regarding his intentions at time of entry (to depart with his ship or secure a berth on another vessel) is not accepted when 

viewed against his actions before and after arrival and his admitted untruthfulness in sworn statement made to the Service. (Matter of M—, 

A-10256335, Int. Dec. No. 990, distinguished.) 

BEFORE THE REGIONAL COMMISSIONER 

Discussion This case is before me by certification under 8 CFR 

103.4. The district director has denied the application on the ground 

that the applicant was not a bona fide nonimmigrant at the time of 

his last admission into the United States. 

The applicant is a native and citizen of Greece, age 28, who was 

last admitted to the United States at Galveston, Texas, on February 

17, 1959, as a nonimmigrant crewman under section 252(a) (1) of the 

Immigrant and Nationality Act solely for the length of time his 

vessel was to remain in United States ports (not to exceed twentynine days). 

The SS. HELEN H. upon which the applicant arrived proceeded 

coastwise from Galveston to New Orleans, Louisiana, arriving there 

on February 24, 1959. On March 10, 1959, the SS. HELEN H. sailed 

foreign from New Orleans. The applicant• and 6 other crew members 

were reported by the master of the vessel as deserters. The applicant 

has remained in the United States continuously since his entry at 

Galveston on February 17, 1959. 

On April 23, 1959, the applicant walked into the New York office 

and filed the application which is now before us. At the time of 

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filing, he claimed nonquota status under section 101(a) (27) (A) of 

the Immigration and Nationality Act based on his marriage to a 

United States citizen. Subsequent to filing, the applicant has been 

interviewed under oath on two different occasions. 

The record shows the applicant was first interviewed by an immigrant inspector June 11, 1959, at which time he testified -, in essence, 

as follows: That he left the SS. HELEN H. on February 24, 1959, 

and flew to New York registering at the Hotel Rio. He then made 

inquiry at the Ocean Restaurant as to the location of a cousin whom 

he intended to visit for 3 days. While at the restaurant he was introduced for the first time to his present wife and on the following day 

proposed marriage. He had been informed by acquaintances 4 or 5 

th.:,nths before arriving that he could marry a United States citizen 

and remain in the United States. His second cousin, owner of the 

Ocean Restaurant, whose name he had forgotten, introduced him to 

the girl whom he married three clays later. He further testified that 

he had no intention o marrying at the time that he left the vessel 

on February 24, 1959, and, in fact, intended to return to the ship 

scheduled to sail between the end of February and the 5th of March. 

In reply to further questioning, he amended this statement to say 

that he planned to seek a new ship in New York or would have returned to the SS. HELEN H. if unable to obtain a new berth in 

New York. In support of his application, a marriage certificate 

was presented showing the marriage of the applicant to C 

on February 27, 1959, at New York. 

Because of the improbability and contradictions apparent in the 

applicant's testimony, arrangements were made for his wife to be 

interviewed. 

On July 28, 1959, the applicant and his wife were interviewed 

under oath by an investigator of this Service. He testified that many 

of the statements made in the prior interview were untrue and that 

he did not tell the truth because he was upset, nervous and confused. 

On this occasion he testified he first met his present wife in November of 1958 and corresponded with her until his return in February 

1959. The subject of marriage was a topic of correspondence, and 

in order to become better acquainted, he left the ship. on February 

24 for a short visit. To support the statements regarding the exchange of correspondence, he presented a radiogram dated November 

26, 1958, extending Thanksgiving greetings from "C ", and a 

letter in the Greek language dated January 2, 1959, from the applicant to his wife in which he stated the following: 

May my letter find you well, and the New Year give you everything you 

desire. I received your Christmas cable, and card and letter for the New 

Year. I was overjoyed, pleased, and touched by your noble expressions. I 

wanted to call you up upon arriving at port but had to wait in the outer 

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harbor until our turn came * * * felt overjoyed at the wonderful words in 

your letter and that you are looking forward to meeting each other. I felt 

indeed distressed leaving so soon after we first met, even though that meeting 

was enough to make me appreciate and like you and I felt I knew you for 

many years before. There is nothing left for me to do but bring myself Lear 

to you as soon as I leave the ship. I hope you form the right opinion about 

me for I am a very worthy person like you are. After unloading and sailing 

for America, I'll get you on the wire and talk about my leaving the ship. 

Give Mrs. T-- warmest regards. 

At the time of the above interview, the applicant's spouse was also 

questioned under oath regarding the circumstances of her marriage. 

She testified that she first met the applicant in November 1958, and 

that subsequent thereto corresponded with him; that on February 24, 

1959, the applicant telephoned her to advise that he was coming to 

New York and wanted to know her better. She stated that when he 

arrived in New York that she knew that she loved him because she 

had grown to love him by his letters and that when he proposed 

marriage, she immediately accepted. She testified that, it. was her 

true belief that the marriage was solely for love and that the applicant has been a good husband. 

Section 215 under which the applicant is applying for adjustment 

of status reads, in part, as follows: 

SEC. 245. (a) The status of an alien who was admitted to the United States 

as a bona fide nonimmigrant may be adjusted by the Attorney General, in his 

discretion and under such regulations as he may prescribe, to that of an alien 

lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant 

visa and is admissible to the United States for permanent residence, (3) an 

immigrant visa was immediately avaiime to him at the time of his application, and (4) an immigrant visa is immediately available to him at the time 

his application is approved. * * * 

Section 252(a) (1) under which the applicant was admitted as a 

nonimmigrant crewman reads as follows: 

SEC. 252. (a) No alien crewman shall be permitted to land temporarily in 

the United States except as provided in this section, section 212(d) (3), section 212(d) (5), and section 253. If an immigration officer finds upon examination that an alien crewman is a nonimmigrant under paragraph (15) (D) 

of section 101(a) and is otherwise admissible and has agreed to accept such 

permit, he may, in his discretion, grant the crewman a conditional permit to 

land temporarily pursuant to regulations prescribed by the Attorney General, 

subject to revocation in subsequent proceedings as provided in subsection (b), 

and for a period of time, in any event, not to exceed— 

(1) the period of time (not exceeding twenty-nine days) during which the 

vessel or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft 

on which he arrived. * * * 

The definition of a crewman is found in section 101(a) (15) (D), 

as follows: 

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SEC. 101. (a) As used in this Act— • • • 

(15) The term "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 heaving its home port or an operating base in the United States) or 

aircraft, who intends to land temporarily and solely in pursuit of his calling 

as a crewman and to depart from the United States with the vessel or aircraft 

on which he arrived or some other vessel or aircraft. • • • 

The wording of section 245 clearly demands an examination of all 

applicants for adjustment as to whether they were, in fact, bona, fide 

nonimmigrants at the time of their admission to the United States, 

particularly in cases of recent arrivals. The burden is upon the 

applicant, not the Government, to establish bona fides of nonimmigrant status at the time of admission. This burden is not met solely 

by the gratuitous or self-serving statements of the applicant as to 

his intent at the time of admission. The Government has the responsibility to weigh all evidential factors present in each case carefully 

and considerately. Such factors include the actions of the applicant 

prior and subsequent to arrival. 

In the instant case, we have carefully weighed the actions of the 

applicant in the light of the sworn testimony. He was admittedly 

untruthful in his initial testimony before an officer o= this Service 

regarding his intentions at the time of his admission to the United 

States and as to his reasons for leaving his vessel. In view of this, 

considerable doubt is cast upon his amended testimony regarding 

his intentions at the time of entry. Here we have an alien who 

admittedly planned to depart from his vessel to marry a woman 

whom he had met before if she would have him. He, in fact, asked 

permission from the master of his vessel to discharge from the vessel 

on which he arrived but the permission was refused. He actually 

carried out his preconceived plan by departing from his vessel from 

New Orleans to New York and married within three days after 

arriving there. He would have us believe that he intended to depart 

with the vessel on which he arrived or by securing a berth on another vessel. He did neither. He remained in the United States. 

Credibility cannot be accorded his testimony in light of his actions 

prior to and subsequent to his arrival. 

The facts in this case are distinguished from prior cases in which 

we have found a crewman to be a bona fide nonimmigrant. In 

Matter of M , A-10256535, Int. Dec. No. 990, for example, the 

applicant was last admitted as a crewman in 1948. Clearly his intention at time of entry was to reship foreign. However, because of 

unforeseen circumstances he was forced to remain in the United 

States a prolonged period of time during which a change occurred 

in his intention to resume his calling. 

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The instant case is not that of a crewman who, through unforeseen circumstances beyond his control, such as illness and/or hospitalization, was prevented from departing with his vessel and had to 

remain in the United States a prolonged period of time. We must 

conclude that the applicant failed to sustain the burden of establishing that he was a bona fide crewman at the time of his last admission. Accordingly, the application will be denied. 

Order: It is ordered the application be denied. 

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