Matter of Tzimas

• Citation: 10 I&N Dec. 101
• Decision Date: 10 September 1962
• Docket Number: A-15817430,Interim Decision Number 1251
• Parties: MATTER OF TZIMAS In DEPORTATION Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

10 I&N Dec. 101

MATTER OF TZIMAS

In DEPORTATION Proceedings

Interim Decision Number 1251

A-15817430

Board of Immigration Appeals

Decided by Board September 10, 1962

Respondent, who upon arrival in the United States was destined to join a vessel as a crewman, is ineligible for adjustment of his status under section 245 of the Immigration and Nationality Act, as amended (8 CFR 245.1), despite his admission as an alien in transit under section 101(a) (15) (C) of that Act.

CHARGE:

Order: Act of 1952 — Section 241 (a) (2) [8 U.S.C. 1251(a) (2)] — Remained longer.

This is an appeal from the order of the special inquiry officer finding respondent deportable on the ground stated above and denying his application for adjustment of status under section 245 of the Immigration and Nationality Act. Voluntary departure was granted. The appeal will be dismissed.

No issue is taken with the finding of deportability. The special inquiry officer found respondent ineligible for adjustment of status because of his belief that respondent came within the terms of a regulation which states that an alien crewman or an alien coming to the United States to serve on a vessel cannot qualify for the relief. Counsel contends that the regulation is invalid for it enlarges the classes of persons who cannot obtain relief under the express terms of the statute; and he contends that the regulation does not apply in any event because respondent was not admitted to the United States as a crewman or alien destined to join a vessel, but was admitted in transit.

The respondent is a 25-year-old married male, a native and citizen of Greece, who was admitted to the United States on July 12, 1961, upon presentation of a C-1 visa (alien in transit, section 101 (a) (15) (C) of the Act, 8 U.S.C. 1101 (a) (15) (C)).¹ Respondent was injured; he was permitted to remain in the United States until August 10, 1961. Before the date of his departure, he obtained a divorce from his wife in Greece; in February 1962 he married a United States citizen. A visa petition filed by respondent's wife was approved on April 12, 1962. Respondent filed an application for adjustment of status under section 245 (a) of the Act at his deportation hearing on July 2, 1962.

The agents of the steamship line to which respondent was destined when he entered the United States have furnished the information that respondent's entry was for the purpose of employment as a seaman on a vessel (Ex. 7). The respondent admits that when he came to the United States he had a seaman's book to ship as a crewman and that he came here to reship on a vessel of the line on which he had arrived (pp. 13, 14).

In arriving at the finding of ineligibility, the special inquiry officer relied upon section 245.1 of Title 8 of the Code of Federal Regulations (Supp. 1962) which provides in pertinent part as follows:

An alien who on arrival in the United States was serving in any capacity on board a vessel or aircraft, or was destined to join a vessel or aircraft in the United States to serve in any capacity thereon, or was not admitted or paroled following inspection by an immigration officer is not eligible for the benefits of ...