Raymond Alexander Clarke v. U.S. Attorney General ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 11-10210 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ SEPTEMBER 1, 2011
JOHN LEY
CLERK
Agency No. A096-576-252
RAYMOND ALEXANDER CLARKE,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 1, 2011)
Before BARKETT, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Raymond Alexander Clarke, a native and citizen of Jamaica, seeks review
of the Board of Immigration Appeals’s (“BIA”) order dismissing his appeal of the
Immigration Judge’s (“IJ”) decision pretermitting his application for adjustment of
status under Immigration and Nationality Act (“INA”) § 245(a), 8 U.S.C.
§ 1255(a), and granting him voluntary departure. On appeal, Clarke argues that
the BIA and IJ erred in concluding that he was an “alien crewman” and thus
statutorily ineligible for adjustment of status under INA § 245(c), 8 U.S.C.
§ 1255(c).1
The Attorney General may, in his discretion, adjust the status of an alien
admitted or paroled into the United States if the alien meets certain requirements.
INA § 245(a), 8 U.S.C. § 1255(a). When applying for adjustment of status, the
alien bears the burden of establishing that he meets the eligibility requirements.
INA § 240(c)(4), 8 U.S.C. § 1229a(c)(4) (as amended by the REAL ID Act of
2005, Pub. L. No. 109-13). However, adjustment of status under § 1255(a), is not
available to an “alien crewman.” INA § 245(c), 8 U.S.C. § 1255(c). The INA
defines a “crewman” as “a person serving in any capacity on board a vessel or
aircraft.” INA § 101(a)(10), 8 U.S.C. § 1101(a)(10).
Clarke argues that he does not meet the definition of a crewman because he
did not enter the United States while employed on a ship, nor did he have a
1
We have jurisdiction to review the legal question of whether Clarke was statutorily
ineligible for adjustment of status. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Alvarado v.
U.S. Att’y Gen., 610 F.3d 1311, 1314 (11th Cir. 2010). We review the BIA and IJ’s finding that
Clarke was a “crewman” for substantial evidence and will reverse the agency’s findings only if
the record compels reversal. Todorovic v. U.S. Att’y Gen., 621 F.3d 1318, 1323-24 (11th Cir.
2010).
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contract of employment as a crewman waiting for him in the United States at the
time of his entry. However, an alien need not be a crewman before he enters the
United States in order to meet the INA’s definition; it is sufficient that the alien
enter the United States “in pursuit of his calling as a seaman.” Parzagonis v.
I.N.S., 747 F.2d 1389, 1390 (11th Cir. 1984). Clarke entered the United States
with a nonimmigrant “C-1/D” visa. A “C-1” visa classification is given to
nonimmigrants in transit, and a “D” visa classification is given to someone
accorded “alien crewman” status. See Matter of G-D-M-, 25 I. & N. Dec. 82, 85-
86 (BIA 2009). The IJ found that Clarke’s visa type was a clear indication that
Clarke was a crewman, and requested that Clarke submit documentary evidence of
his visa application to establish that the C-1 visa was issued for some purpose
other than to join a ship as a crewman. Clarke declined to present any such
evidence. Rather, his counsel acknowledged at the hearing that Clarke’s visa
application would show that he represented to immigration officials that he was an
intending crewman in order to obtain his visa.2 Accordingly, we cannot say this
2
Clarke argues that under the BIA’s unpublished decision in In re: Saturnino Orocary
Baguis Jr., 2005 WL 1848389 (BIA May 6, 2005), he should be classified as a nonimmigrant in
transit, not an alien crewman, because he was issued a Form I-94 rather than a Form I-184 or
Form I-95 upon his entry into the United States. As an initial matter, this decision is unpublished
and does not control here. Moreover, we see no reversible error in the IJ’s determination that
Clarke’s case is distinguishable from In re: Saturnino because the record shows that Clarke
obtained his visa by representing that he intended to obtain work as a crewman in the United
States.
3
record compels reversal of the IJ’s conclusion that Clarke was an “alien crewman”
and thus failed to meet his burden of establishing that he was eligible for
adjustment of status.
PETITION DENIED.
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