Phillis Lewis v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10057
Non-Argument Calendar
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Agency No. A089-371-091
PHILLIS LEWIS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 19, 2012)
Before BARKETT, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Phillis Lewis, a native and citizen of Jamaica, has filed a petition for review
of the Board of Immigration Appeals’s (“BIA”) final order that denied her
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application for adjustment to status to permanent residency and ordered her
removed, after the BIA determined that Lewis was a crewman and thus statutorily
ineligible for adjustment of status. The Attorney General, at his discretion, may
adjust the status of an alien to that of an alien lawfully admitted for permanent
residence so long as the alien meets certain statutory requirements, including not
being an “alien crewman.” 8 U.S.C. § 1255(a) & (c). The Immigration and
Nationality Act (“INA”) defines “crewman” as “a person serving in any capacity
on board a vessel or aircraft.” 8 U.S.C. § 1101(a)(10). Lewis argues that the BIA
erred in determining that she was a crewman because although she intended to
work on a ship in the United States, she never actually did so.
At a hearing before an immigration judge (“IJ”), Lewis testified that,
although she had never worked on a ship before, she intended to work on a ship in
the United States. At the U.S. Embassy in Jamaica, she applied for and received a
combined C-1 and D visa, after presenting a letter from a shipping company in the
United States that she applied to work for. Class C visas apply to non-immigrant
aliens in transit and Class D visas apply to alien crewmen. See Matter of G-D-M-,
25 I. & N. Dec. 82, 83 (BIA 2009); 8 U.S.C. §§ 1101(a)(15)(C) & (D). She flew
into Miami and, upon entry, Lewis was provided with an I-94 entry form (an
“Arrival/Departure Record”) and was admitted on May 25, 2001 as a
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non-immigrant C-1, alien in transit, with authorization to remain in the United
States until June 24, 2001.
In Miami, the shipping company that she applied to informed her that no
jobs were available, but that they would call her. They never called her back and
she never worked on a ship. Lewis though remained in the United States beyond
June 24, 2001 and in 2002 married her husband, a U.S. citizen whom she met after
she entered. In 2006, Lewis filed an application to adjust her immigration status to
permanent residency and a year later, the U.S. Citizenship and Immigration
Services approved her husband’s alien relative visa petition for Lewis. In 2008,
though, the government began removal proceedings against Lewis, who does not
contest her removability.
At the IJ proceedings regarding her removal and application for adjustment,
the government argued that Lewis was a crewman under the INA and therefore
ineligible for adjustment. Lewis contended that her intent to work on a ship in the
United States was not sufficient to be a crewman under the INA. Additionally,
Lewis pointed out that (1) she was admitted under a Class C alien-in-transit visa
while most crewmen are issued a Class D visa; and (2) she was provided upon
entry with a Form I-94, while crewmen generally receive a Form I-184 (an “Alien
Crewman Landing Permit and Identification Card”) or a Form I-95 (a “Conditional
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Landing Permit”). See 8 C.F.R. § 252.1 (describing the immigration forms for
alien crewmen). The IJ granted Lewis’s application for adjustment of status,
determining that Lewis was not a crewman, that she was eligible for adjustment,
and that she had a bona fide marriage.
In 2011, the BIA reversed the IJ’s grant of adjustment and ordered Lewis
removed, after the BIA determined that Lewis was a crewman under the INA.
The BIA held that the record demonstrated that Lewis was admitted into the
United States for the purpose of joining a ship and “it was the intent of Congress
to bar all occupational seamen who entered by reason of their occupation.”
(quoting G-D-M-, 25 I. & N. Dec. at 83-84) (quotations omitted)). The BIA
rejected Lewis’s contention that she could not be a crewman because of the type of
visa she received and because she never ended up working on a ship. The BIA
cited G-D-M-, where the BIA held that the petitioner was an alien crewman
because he had entered the United States to work on a ship, despite the petitioner
similarly holding a C-1/D visa, not being employed on a ship when entering, and
the shipping job in the United States never materializing. 25 I. & N. Dec. at 83-
85; see also Matter of Tzimas, 10 I. & N. Dec. 101 (BIA 1962) (BIA held C-1 visa
holder was an alien crewman). Lewis timely petitioned this Court for review of
the BIA’s final order.
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Because we have subject-matter jurisdiction to review “non-discretionary
legal decisions as to statutory eligibility for discretionary relief”, we can review
the BIA’s determination that Lewis was a crewman under the INA and thus
ineligible for adjustment of status. See Alvarado v. U.S. Att’y Gen., 610 F.3d
1311, 1314 (11th Cir. 2010); 8 U.S.C. § 1252(a)(2)(D). “We review the BIA’s
statutory interpretation de novo, but will defer to the BIA’s interpretation of a
statute if it is reasonable and does not contradict the clear intent of Congress.”
Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008) (quotations and
citations omitted).
We emphasized in Parzagonis v. I.N.S. that when determining whether the
petitioner is a crewman under the INA, “the focal issue is whether petitioner
entered the United States in pursuit of his calling as a seaman.” 747 F.2d 1389(11th Cir. 1984) (holding that petitioner was a crewman under the INA even if he
never worked on a ship until after entering the United States). Lewis entered the
United States in pursuit of her occupation as a crewman: she testified that she
intended to work as a crewman in the United States and received a visa based on
this occupational basis, after submitting a letter from a shipping company to the
U.S. Embassy. Under our precedent, the BIA did not err in finding that Lewis was
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an alien crewman and therefore statutorily ineligible for adjustment of her
immigration status.
PETITION DENIED.
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