interim Decision #2659 

MATTER OF DEJONG 

In Exclusion Proceedings 

A-22461648 

Decided by Board July 14, .1978 

(1) Under section 235(b) of the Immigration and Nationality Act, an immigration judge did 

not have jurisdiction to consider the admissibility of the "alien crew members" of 111/V 

Dosina, an oil tanker which operated as a lightering vessel, off the coast of California, 

'who had applied for temporary permission to land as "alien crewmen." 

(2) When the immigration inspector found that the alien crew members did not qualify as 

"bona fide crewmen," the proper procedure was to refuse them conditional landing 

permits. See 8 C.F.R. 2521(g). 

In re: JOLLE DeJONG, Master of the Motor Tanker "DOSINA" and other crew members. 

EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrants—not 

in puab.esalun of immigrant visas 

ON BEHALF OF APPLICANTS: 

Edward D. Ransom, Esquire 

Lillick, McHouse & Charles 

Two Embarcadero Center 

San Francisco, California 94111 

AlVEOUS CURIAE: 

Richard H. Markowitz, Esquire 

Markowitz & Glanstein 

50 Broadway 

New York, New York 10004 

Eoward Schulman, Esquire 

Schulman, Abarbanel, & Schlesinger 

350 Fifth Avenue 

New York. New York 10001 

L. G. Smith, Esquire 

Smith & Striekfaden 

168 Santa Clara Avenue 

Oakland, California 94610 

ON BEHALF OF SERVICE: 

George Indelicato 

Appellate Trial Attorney 

Brian H. Simpson 

Trial Attorney 

AMICUS CURIAE: 

Pak Hoy Wong, Esquire 

870 Market Street 

San Francisco, California 94102 

David L. Hopmann, Esquire 

Pillsbury, Madison, & Sutro 

No Chevron Shipping Co. 

555 Market Street 

San Francisco, California 94105 

Carl C. Davis, Esquire 

Alvord & Alvord 

348 West 17th Street 

New York, New York 10011 

EitY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members. Board 

Member Farb abstained from consideration of this ease. 

In a decision dated July 11, 1977, an immigration judge found the 

applicants inadmissible to the United States under section 212(a)(20) of 

552 
Interim Decision #ZfibU 

the Immigration and Nationality Act, 8 U.S.C. 1182(a)(20), as immigrants who were not in possession of immigrant visas, and ordered them 

excluded and deported from the United States. He then certified his 

decision to this Board. The decision of the immigration judge will be 

reversed, and the proceedings will be terminated. 

The applicants are the master and crew of the Motor Tanker 

"Dosina," a Dutch flagship. The M/T "Dosina" is an oil tanker which 

originally brought a load of 70,000 tons of crude oil to the United States 

in December, 1976. After delivering its cargo, it began to work off the 

coast of California as a lightering vessel, bringing crude oil from "supertankers," located in international waters off the coast of California, 

which were too large to enter any of the California ports. On each trip, 

the M/T "Dosina" would return to the "supertanker" with a load of fuel 

oil. The M/T "Dosina" would then repeat its round trip until the "supertanker" had been completely unloaded, a task which normally took 14 

days. 

In January, 1977, approximately 29 days after it first arrived in this 

country, the M/T "Dosina" went to Mexico where the ship's master 

obtained a new crew visa list. The ship then returned to California and 

began to again "lighter supertankers." At the beginning of February, 

1977, the M/T "Dosina" returned to Ensenada, Mexico, and obtained 

another crew visa list. When the ship attempted to land in the United 

States for this third time, the immigration inspector who boarded the 

ship to inspect the crew determined that the crew members might not 

be "alien crewmen" as described in section 101(a)(15)(D) of the Act, 8 

U.S.C. 1101(a)(15)(D), deferred their inspection and ordered them to 

appear at an exclusion hearing before an immigration judge to determine if they were inadmissible to the United States under section 

212(a)(20) of the Act as immigrants not in possession of valid immigrant 

visas. 

Following the continuance of the hearing on February 14, 1977, a 

reconvened exclusion hearing was held on March 1, 1977. At that hearing, the immigration judge found that he had jurisdiction to consider the 

case, even though both the applicants and the Immigration and Natural ization Service trial attorney argued to the immigration judge that he 

did not have jurisdiction to consider the admissibility of the crewmen in 

exclusion proceedings held pursuant to section 235(b) of the Act, 8 

U. S.C. 1225(b). At the hearing, the immigration judge reserved his 

decision and allowed both the applicants' counsel and the Service an 

opportunity to submit briefs, and allowed the National Maritime Union 

to submit an amicus curiae brief as well. On July 11, 1977, the immigration judge rendered his decision finding the applicants inadmissible 

un der section 212(a)(20) of the Act and then certified his decision to the 

Board. 

553 
interim 1JeC1611J11 IFLOUV 

In addition to briefs submitted by the applicants and by the Service, 

we have also received a number of amicus curiae briefs, including an 

untimely brief filed by the National Maritime Union of America. We 

have accepted all the amicus curiae briefs for consideration. 

At oral argument before this Board, held on November 21, 1977, 

counsel for the applicants stated that the M/T "Dosina" has continued to 

operate as a lightering vessel off the coast of California, and that, 

beginning several months prior to the date on which oral argument was 

held, the ship had once again begun to return every 29 days to Mexico to 

obtain a new crew visa list. The transcript of the hearing below indicates 

that the immigration judge told the applicants at the hearing that they 

could continue in "status quo" and "to carry on" while the case was 

pending (Tr. p- 35). 

At oral argument counsel also stated that the members of the crew of 

the M/T "Dosina" have continued to be replaced after spending five 

months on the ship, as is the normal policy of the shipping line. He also 

stated that six of the original crewmen were on board the ship at that 

time. There is no indication in the record as to which basis the crewmen 

on board the M/T "Dosina" have been allowed to land temporarily in the 

United States since the immigration judge rendered his derision_ We, 

therefore, do not know if they have been allowed to land temporarily in 

the United States as "alien crewmen" within the meaning of the Aet, 

thereby making the present ease moot. However, since we do not know 

on what basis they have been entering this country, we shall consider 

the case still to be pending. 

The applicants all applied for permission to land in the United States 

as nonimmigrant alien crewmen as defined in section 101(a)(15)(D) of the 

Act, which reads: 

(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 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 Immigration and Nationality Act of 1952, as amended, devotes a 

specific section of the Act to the regulation of "alien crewmen," who are 

permitted to land temporarily in the United States pursuant to these 

sections. Section 252(a) of the Act, 8 U.S.C. 1282(a), which sets forth 

the procedures for admitting such crewmen reads: 

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 

554 
Interim Decision #2659 

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; or 

(2) twenty-nine days, if the immigration officer is satisfied that the crewman 

Intends to depart, within the period for which he is permitted to land, on a vessel or 

aircraft other than the one on which he arrived. 

This section clearly sets forth the conditions under which eligible 

crewmen are to be granted permission to land temporarily in the United 

States. It is these procedures that apply to alien crewmen rather than 

the procedures set forth in the Act relating to the adinission of immigrants and other classes of noninunigrants. Only when an alien serving 

as a crewman aboard a ship presents either an immigrant visa or 

another type of nonimmigrant visa do the general admission procedures 

apply. See 8 C.F.R. 252.1(b). See also Matter of Rebelo, 13 I. & N. Dec. 

84 (BIA 1968). 

Section 235(b) of the Act, pursuant to which the present exclusion 

hearing was held, provides in part that: 

Every alien (other than an alien crewman), and wreept as otherwise provided in 

subsection (c) of this section and in section 273(d), who may not appear to the examining 

immigration officer at the port of arrival to be clearly and beyond a doubt entitled to 

land shall be detained for further inquiry to be conducted by a special inquiry officer. 

(Emphasis supplied.) 

It specifically and clearly excludes "alien crewmen," as a class, from its 

coverage. 

The immigration judge, however, found in his decision of July 11, 1977, 

that he had jurisdiction to consider the admissibility of the present 

crewman, because this Board's decision in Matter of Rebelo, supra, held 

that in order for an "alien crewman" to be treated as such, he must be 

acting in "pursuit of his calling." The immigration judge stated that for 

an alien crewman to be considered to be in pursuit of his calling he must 

be entering "on a foreign vessel engaged in international trade which 

comes to the United States with a cargo which it has picked up abroad, 

discharges it at one or more ports in this country, loads cargo destined 

to be delivered in foreign countries, and then departs from the United 

States." (Immigration judge's decision, p. 6.) 

As stated by the applicants on appeal, this definition of an "alien 

crewman in pursuit of his calling" has no support or authority in either 

the Act or in any decision of this Board or of any court. The term "alien 

crewman" is defined in section 101(a)(15)(D), and we further stated in 

our decision in Matter of Rebelo, supra, that the two elements required 

for an alien to be classified as an "alien crewman" under the Act are: 

(1) he must be serving aboard a vessel in a capacity required for its normal operation; 

and 

555 
Interim Decision #2659 

(2) he must be seeking (and gain) admission to this country because of his occupation in 

that role. 

The applicants in the present case are all aliens serving aboard a 

foreign vessel. They all were listed on the crew visa list each time the 

ship's master requested such a list for its crew from the American 

consul in Mexico. The ship, on which the applicants were serving, went 

to a foreign port each 29 days, as required, to obtain a new crew visa 

list. None of the crewmen sought to enter for a longer period than their 

ship was in port, or in any other status, or under any other conditions 

than those of an "alien crewman." The applicants therefore clearly come 

within all the accepted definitions of a "bona fide crewman." 

However, even if the immigration inspector had decided that the 

applicants, though seeking to enter as crewmen, were not "bona fide" 

alien crewmen within the meaning of the Act, the exclusionary procedures set forth in section 235(b) of the Act, which call for an exclusion 

hearing before an immigration judge, do not apply by the very words of 

the statute. Here, when the immigrant inspector found that the aliens 

seeking permission to land temporarily as crewmen did not qualify as 

"bona fide crewmen," the proper procedure was to refuse them conditional landing permits, not to place them in exclusion proceedings. See 8 

C.F.R. 252.1(g); cf. INS v. Stanisic, 395 U.S. 62 (1969), reh. denied, 395 

U. S. 987. 

In Matter af Rebelo, supra, cited as support by the immigration judge 

in his decision, we found that the respondent did not qualify as an alien 

crewman because he had not been admitted because of his employment 

as an alien crewman, but rather, as a nonimmigrant visitor for pleasure_ 

We, therefore, held that he was eligible for adjustment of status, 

although he would not have been if he had entered as an alien crewman_ 

All the applicants in the present case requested temporary permission 

to land as alien crewmen. There is no evidence in the record to indicate 

that they did not intend to comply with the conditions of the status of 

alien crewmen, or that they were seeking admission on any other basis_ 

We, therefore, do not believe that our holding in Matter of Rebel° 

supra, is applicable to this case. 

We believe that both under the Act and under the regulations set 

forth in the Code of Federal Regulations, an immigration judge does not 

have jurisdiction to consider under section 235(b) of the Act the admissibility of an "alien crewman" who has applied for temporary permission 

to land. We, therefore, will reverse the decision of the immigration 

3 edge and order the proceedings against the applicants under section 

235(b) of the Act terminated. 

Since we have determined that the applicants were improperly placed 

jai exclusion proceedings under section 235(b) of the Act, and that 

neither the immigration judge nor this Board has jurisdiction to con556 
Interim Decision fZeOV 

sider their admissibility, we do not believe that it is necessary for this 

Board to discuss any of the other issues raised by the applicants. 

ORDER: The decision of the immigration judge is reversed and the 

proceedings are terminated. 

557