Matter of Tzimas

Interim Decision #1251

临时决定第1251号

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 Immigra- tion 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 regu- lation 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

这是对特别调查官命令的上诉，该命令认定答辩人基于上述理由可被驱逐出境，并驳回其根据《移民与国籍法》第245条提出的身份调整申请。自愿离境获准。上诉将被驳回。 对可驱逐出境的认定未提出异议。特别调查官认定答辩人无资格调整身份，因为他认为答辩人属于一项法规的适用范围，该法规规定，外国船员或来美国在船上服务的外国人不能获得该救济。 律师主张该法规无效，因为它扩大了根据法规明文规定不能获得救济的人员类别；他还主张该法规无论如何不适用，因为答辩人并非作为船员或目的地为登船的外国人获准入境美国，而是作为过境人员获准入境。 答辩人是一名25岁已婚男性，希腊本土出生和公民，于1961年7月12日出示C-1签证（过境外国人，该法第101(a)(15)(C)条，8 U.S.C. 1101(a)(15)(C)）后获准入境美国。1 答辩人受伤；他获准在美国停留至1961年8月10日。在离境日期之前，他与妻子离婚

Interim Decision #1251

临时决定第1251号

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 :

在希腊；1962年2月他与一名美国公民结婚。答辩人妻子提交的签证申请于1962年4月12日获批。答辩人于1962年7月2日在驱逐出境听证会上根据该法第245(a)条提交了身份调整申请。 答辩人入境美国时目的地所属轮船公司的代理人提供信息称，答辩人入境是为了在船上作为海员就业（证物7）。答辩人承认，他来美国时持有海员证以便作为船员上船，他来此是为了在其抵达时所乘航线的船上重新上船（第13、14页）。 在作出无资格认定时，特别调查官依据《联邦法规汇编》第8编第245.1条（1962年补充本），其相关部分规定如下：

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 section 245 of the Act. * * * 2 The Attorney General is given the power to prescribe the regulations for the enforcement of section 245(a) of the Act. His regulation is binding upon the Board. The regulation excludes from the benefits of section 245 (a) of the Act a person coming to the United States to join a vessel on which he is to serve as an alien crewman; respondent is such a person. The appeal must be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed.

抵达美国时正在船只或飞机上以任何身份服务的外国人，或目的地为在美国登上船只或飞机以在其上以任何身份服务的外国人，或未经移民官检查后获准入境或假释的外国人，无资格享受该法第245条的利益。* * * 2 司法部长被授予制定执行该法第245(a)条法规的权力。其法规对委员会具有约束力。该法规将前来美国登上船只作为外国船员服务的人员排除在该法第245(a)条利益之外；答辩人即为此类人员。上诉必须驳回。 命令：兹命令，上诉予以驳回，且特此驳回。