Guerrero v. Holder, Jr. ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2018
JHONNY GUERRERO,
Petitioner,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez and Thompson,
Circuit Judges.
Eduardo A. Masferrer and Masferrer & Associates, P.C., on
brief for petitioner.
Jennifer Paisner Williams, Senior Litigation Counsel, Office
of Immigration Litigation, Civil Division, U.S. Department of
Justice, Stuart F. Delery, Principal Deputy Assistant Attorney
General, Civil Division, and David V. Bernal, Assistant Director,
on brief for respondent.
August 21, 2013
TORRUELLA, Circuit Judge. Petitioner Jhonny Guerrero
("Guerrero"), a native and citizen of the Dominican Republic,
petitions for review of the Board of Immigration Appeals' ("BIA")
order denying his application for cancellation of removal. On
appeal, Guerrero raises two challenges to the BIA's finding that he
was a crewman upon entry into the United States, and thus,
statutorily ineligible for discretionary relief under the
Immigration and Nationality Act ("INA"). First, Guerrero argues
that he does not fit within the "crewman" classification because he
was admitted into the United States as a C-1 nonimmigrant in
transit. Second, Guerrero contends that the circumstances
surrounding his entry indicate that he was not intending to pursue
a calling as a crewman and, consequently, should not have been
classified as such. After carefully considering Guerrero's claims,
we deny the petition for review.
I. Background
On September 1, 1998, the United States issued Guerrero
a C-1/D visa.1 The annotation on the visa reads: "as 2-engineer
1
A C-1/D visa is a dual visa. The "C-1" visa classification is
given to a nonimmigrant "in immediate and continuous transit
through the United States." The "D" visa classification is
accorded to a nonimmigrant "alien crewman" who is "serving in good
faith as such in a capacity required for normal operation and
service on board a vessel . . . [and] 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." 8 U.S.C.
§ 1101(a)(15)(C), (D).
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aboard Poseidon." Guerrero entered the United States on October 5,
1998, following his arrival at Miami International Airport. At the
airport, Guerrero was admitted as a "C-1 nonimmigrant in transit,"
and was authorized to remain in the United States until November 4,
1998.
According to Guerrero, after leaving the airport he
checked in with Rigel Ships Agency, a shipping agency he had worked
with in the past. But due to adverse weather conditions, the ship
that Guerrero was scheduled to work on, the Sea Mist, had departed
Miami earlier than planned. Guerrero remained in the United States
and eventually married a United States citizen. In 2006, Guerrero
applied for an adjustment of status, which was denied, and was
subsequently placed in removal proceedings. In 2009, he was served
with a Notice to Appear, which charged that he was removable for
remaining in the United States for a time longer than permitted.
See 8 U.S.C. § 1227(a)(1)(B).
Guerrero conceded removability, but applied for
cancellation of removal under INA § 240B before an Immigration
Judge ("IJ"). See 8 U.S.C. § 1229b(b)(1). As an alternative to
cancellation of removal, Guerrero requested voluntary departure.
In his application, Guerrero indicated that he had been employed as
a manual laborer painting, remodeling, providing maintenance, and
cleaning.
In support of his application for cancellation of
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removal, Guerrero submitted a written declaration, dated May 9,
2011. In that declaration, Guerrero swore that, prior to his entry
into the United States, he worked with Rigel Ships Agency aboard
various vessels.2 Furthermore, Guerrero conceded that, as part of
his application to renew his visa, he submitted "a letter from when
he worked aboard the Poseidon" knowing "that upon arrival [he]
would not be boarding the Poseidon."3 Moreover, he asserted that,
on the day of his arrival, when he checked in with Rigel Ships and
learned he "could not depart on the Sea Mist or the Poseidon as
they were not in Miami . . . [he] had no intention of leaving on
any other vessel as a crewman."
On March 9, 2011, an IJ pretermitted Guerrero's
application. On May 19, 2011, the IJ entered an oral decision
finding Guerrero ineligible for cancellation of removal because he
had last entered the United States as a crewman. Explaining her
reasoning, the IJ stated: "when [Guerrero] entered on the C-1 visa,
his intent was to pursue his calling as a crewman and whether he
intended to do that directly or indirectly by reporting to his
employing agency is really irrelevant in these proceedings."
2
A certification letter from an employee of Rigel Ships Agency in
Florida, submitted upon request from Guerrero as additional support
for his application for cancellation of removal, indicates that
Guerrero was an "old crewmember" who had worked on several vessels
for the agency as a Second Engineer since 1996.
3
Although Guerrero states that he renewed his visa, the record is
unclear as to whether an old visa was renewed or a new visa was
issued.
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However, the IJ granted Guerrero voluntary departure. Guerrero
appealed the denial of his application for cancellation of removal
to the BIA.
On July 23, 2012, the BIA affirmed the IJ's decision and
dismissed Guerrero's appeal. After reviewing the evidence of
record,4 based on its previous decisions in Matter of G-D-M-, 25 I.
& N. Dec. 82 (BIA 2009) and Matter of Goncalves, 10 I. & N. Dec.
277 (BIA 1963), the BIA found that Guerrero was a crewman. The BIA
asserted that, even though Guerrero's visa was annotated "C-1," and
he had not been employed as a crewman since his arrival, the
following facts were dispositive of his classification as a
crewman: "[he] secured a visa as a crewman; entered the United
States on that visa; arrived in this country with the intention of
working as a seaman; and was pursuing employment as a crewman, even
though he was unable . . . due to adverse weather conditions."
Thus, the BIA concluded that Guerrero was ineligible for
cancellation of removal pursuant to section 240A(c)(1). This
petition for review followed.
4
The record included a copy of the visa, the certification letter
from the employee of Rigel Ships Agency, and Guerrero's written
declaration.
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II. Discussion
Guerrero's appeal presents a question of law over which
we have jurisdiction. See 8 U.S.C. § 1252(a)(1).5 In cases like
this, where the Board has affirmed an IJ's decision "but opts to
offer a glimpse into its considerations, we review both the
decision of the BIA and the IJ." Restrepo v. Holder, 676 F.3d 10,
15 (1st Cir. 2012). This court reviews "the BIA's [and the IJ's]
legal conclusions de novo, giving deference to the agency's
reasonable interpretation of the statutes and regulations within
its purview." González v. Holder, 673 F.3d 35, 38 (1st Cir. 2012).
As relevant here, the INA grants the Attorney General
power to cancel the removal of an alien if the alien meets certain
requirements. See 8 U.S.C. § 1229b(c)(1). Nevertheless, section
240A(c)(1) of the INA establishes that an individual "who entered
the United States as a crewman subsequent to June 30, 1964" is
ineligible for cancellation of removal. 8 U.S.C. § 1255(c);
Matter of Rebelo, 13 I. & N. Dec. 84, 86 (BIA 1968)("Congress
intended to bar from relief only such aliens as had gained
relatively easy access to the United States by reason of their
occupation as crewmen.").
5
Generally, "[c]ancellation of removal is a form of discretionary
relief over which we[] have no appellate jurisdiction." Elysee v.
Gonzales, 437 F.3d 221, 223 (1st Cir. 2006). However, "appellate
jurisdiction exists when a petition for judicial review raises
claims premised on either constitutional questions or questions of
law." Ayeni v. Holder, 617 F.3d 67, 70 (1st Cir. 2010).
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The INA provides two definitions for "crewman" to be
"read in conjunction when construing the crewman provision."
Matter of Loo, 15 I. & N. Dec. 601, 602-03 (BIA 1976). The first
definition defines a "crewman" as "a person serving in any capacity
on board a vessel or aircraft." 8 U.S.C. § 1101(a)(10). The
second provides that an "alien crewman" is an individual "serving
. . . on board a vessel . . . intend[ing] 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." 8 U.S.C. § 1101(a)(15)(D)(I).
In determining whether an alien is a crewman, we examine
both the type of visa the alien possessed as well as "the
circumstances surrounding an [alien]'s entry . . . ." González,
673 F.3d at 39. "If it is apparent . . . that the alien was issued
a visa as a crewman and entered the United States in pursuit of his
occupation as a seaman, then he is to be regarded as an alien
crewman." Matter of G-D-M-, 25 I. & N. Dec. at 85.
Guerrero challenges the assignment of a "crewman"
classification to him, arguing that he was admitted as a C-1
nonimmigrant in transit. This argument fails. First, we find that
the type of visa Guerrero possessed supports the BIA's
determination that Guerrero was properly classified as an alien
crewman. The record clearly demonstrates that the United States
issued Guerrero a C-1/D visa to serve as an engineer aboard the
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Poseidon. The "D" on the visa accorded Guerrero alien crewman
status. Furthermore, Guerrero's admission as a C-1 nonimmigrant in
transit, while holding a C-1/D visa, is consistent with "crewman"
classification. See Chica-Román v. Attorney Gen. of U.S., 462 F.
App'x 221, 223-24 (3d Cir. 2012) (finding that petitioner, who was
issued a C-1/D visa, and admitted to the United States under a C-1
classification, was properly classified as an alien crewman);
Petitson v. U.S. Atty. Gen., 482 F. App'x 442, 446 (11th Cir. 2012)
(same).
Recently, this court determined that "the particular type
of visa with which a person enters is [not] outcome determinative."
González, 673 F.3d at 39. In González, we held that the BIA
properly classified petitioner as an alien crewman, despite the
fact that it was unclear whether he had entered the United States
on a C-1 visa or a D-1 crewman's visa. Id. Moreover, pursuant to
BIA precedent, an individual who enters as a C-1 nonimmigrant in
transit may nevertheless qualify as a crewman. See Matter of
G-D-M-, 25 I. & N. Dec. at 85-96; Matter of Goncalves, 10 I. & N.
Dec. at 278-79; see also Chica-Román, 462 F. App'x at 224 ("[T]he
pertinent inquiry in determining whether [a petitioner] is a
crewman is not the entry document the United States immigration
authority issued [] him ... but whether [the petitioner] was issued
a visa as an alien crewman and entered the United States as a
crewman."). Since Guerrero's classification as a "C-1 nonimmigrant"
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is not dispositive of his crewman classification, and the visa he
was issued clearly indicated he was accorded alien crewman status,
we agree with the IJ and BIA's determination.
Second, the circumstances surrounding Guerrero's entry
indicate that he arrived in the United States with the intention of
working as a seaman. Guerrero admits that he submitted a letter
from his previous employment aboard the Poseidon when applying for
his visa. The annotation on the visa – "as 2-engineer aboard
Poseidon" - suggests that Guerrero demonstrated an intent to work
as a crewman. It is undisputed that, on the day of his arrival in
the United States, Guerrero checked in with Rigel Ships Agency to
verify the whereabouts of the ship he intended to board. The
record also reflects that Guerrero did not board the Sea Mist
because the ship had departed prior to his arrival due to adverse
weather conditions. The fact that Guerrero, after entering the
United States, did not work as a crewman is irrelevant, provided he
"entered the United States in pursuit of his occupation as a
seaman." See González, 637 F.3d at 39 (quoting Matter of G-D-M-,
25 I. & N. Dec. at 85); see also Petitson, 482 F. App'x at 446
(stating "that the focal issue in determining whether an alien
qualifies as a crewman is whether the petitioner entered the United
States in pursuit of her calling as a seaman") (quotation marks
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omitted) (brackets omitted).6 We need not look beyond Guerrero's
own statements in his declaration to ascertain his subjective
intent to work as a crewman upon entering the United States.
Guerrero, nevertheless, urges us to reach a different
conclusion. Specifically, Guerrero argues that, like the respondent
in Matter of Rebelo, 13 I. & N. Dec. 84 (BIA 1968), his last entry
into the United States was not as a crewman, even though he had
worked as a crewman preceding his entry. We find this argument
unpersuasive and the case distinguishable. In Rebelo, the BIA
found that, even though the petitioner was working as a crewman on
the vessel he arrived in, he was not a crewman for purposes of
discretionary relief. Id. at 85. The BIA reasoned that at the
time of his last entry, the petitioner possessed a B-2 visa,
authorizing him to remain in the United States as a nonimmigrant
temporary visitor for pleasure. Id. Moreover, the BIA found that
he did not enter pursuant to his employment as a crewman or with
the intention of pursuing such a calling. Id. at 86. Here, in
contrast, the record indicates that Guerrero entered, not as a
temporary visitor for pleasure, but as a nonimmigrant in transit,
and that he was accorded a visa as a C-1/D alien crewman.
Similarly, Guerrero posits that, unlike the petitioner in
6
In Petitson, the Eleventh Circuit reaffirmed its holding in
Parzagonis v. I.N.S., 747 F.2d 1389 (11th Cir. 1984), where it
stated that an immigrant who never served as a crewman was
nonetheless ineligible for discretionary relief because he had
entered the United States in pursuit of that calling.
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Lewis v. U.S. Atty. Gen., 482 Fed. App'x. 469, 471 (11th Cir.
2012), who testified that she intended to work as a crewman, and
the petitioner in González, 673 F.3d at 39, who testified that he
last entered the United States as a crewman, his declaration
demonstrates that he did not intend to pursue a calling as a
crewman. We disagree. Guerrero's declaration states that on the
day he arrived in the United States, he checked in with Rigel Ships
Agency, "according to procedure." At the agency, he learned that
the ship he was destined to board had departed, and declared he had
"no intention of leaving on any other vessel." Guerrero's
declaration suggests that he intended to work as a crewman, but did
not do so because the ship he was going to board left early.
All the same, Guerrero's intentions after he arrived and
found the Sea Mist had departed are, as stated above, irrelevant,
as the pertinent inquiry revolves around the circumstances
surrounding the individual's expressed intentions at the time of
entry. See Rodríguez v. U.S. Atty. Gen., 455 F. App'x 940, 942
(11th Cir. 2012) (finding that petitioner was a crewman "despite
her subjective intention to work in the United States at a country
club" because she was issued a C-1/D alien crewman's visa and
entered the United States in pursuit of that occupation). It is
undisputed that, at entry, Guerrero believed he would be boarding
a ship as a crewman, and entered the country intending to do just
that.
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Lastly, Guerrero argues that, unlike the respondent in
Matter of G-D-M-, who identified himself as a "crewman" on his
asylum application and possessed a seaman's service record book, he
has not once identified his occupation as a crewman, nor has he
possessed a seaman's service record book. We agree with Guerrero
that the above stated factors may be taken into consideration when
analyzing the circumstances surrounding his entry. See Mendoza v.
Att. Gen. of U.S., 451 F. App'x 181, 183 (3d Cir. 2011)
(considering that petitioner carried a seaman's service record book
and listed himself as a "crewman" in his application for asylum).
However, these factors are simply considerations left to the
discretion of the BIA and the IJ, and are by no means dispositive
in determining whether an alien is a crewman. See Beri v. U.S.
Atty. Gen., 438 F. App'x 841, 844 (11th Cir. 2011) ("The
dispositive issue is whether the alien entered the United States in
pursuit of his calling as a seaman."). The record supports the
BIA's finding that the circumstances surrounding Guerrero's entry
indicate that he entered the United States intending to work as a
crewman, and pursuing employment as such.
In sum, "[b]y choosing to seek entry to the United States
as a crewman, [Guerrero] agreed to the limitations associated with
that status. Therefore, he cannot now avoid the consequences of
those restrictions in removal proceedings by claiming not to be a
crewman." Matter of G-D-M-, 25 I. & N. Dec. at 84-85.
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III. Conclusion
For the foregoing reasons, Guerrero's petition for review
is denied.
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