Attorney General Review of Decision by Board of Immigration Appeals on Jurisdiction of Immigration Judge

September 5, 1979

79-64 MEMORANDUM OPINION FOR A DEPUTY ASSOCIATE ATTORNEY GENERAL

Immigration and Nationality Act—Alien Crewmen— Temporary Landing—Review by Attorney General of Decisions by Board of Immigration Appeals

This responds to a request o f your Office for our advice on the issue whether the Seafarers International Union (SIU) has stated a sufficient basis for the Attorney General to direct review pursuant to 8 CFR § 3.1(h)(i) of the Board o f Immigration Appeals’ (BLA’s) decision in this case.' After carefully considering the SIU’s submission, we do not believe that it has done so.*

I.

The present matter arose when, in February, 1977, the alien crew of the Dosina, a Dutch tanker performing lightering operations (which involve bringing to shore crude oil from supertankers in international waters) ap­ plied for a conditional permit to land temporarily in the United States pur­ suant to § 252(a) o f the Immigration and Nationality Act (the Act), 8 U.S.C. § 1282(a). That provision authorizes an immigration inspector to grant such a permit in his discretion if he finds that the alien applicant is a nonimmigrant crewman. In this case, the immigration inspector questioned whether the crew was eligible for conditional landing permits. But instead of simply refusing the permits, the inspector ordered that they appear at exclu­ sion proceedings before an immigration judge for a determination whether they were excludable immigrants lacking valid immigrant visas.

'8 CFR § 3.1 (h)(i) provides that the Board shall refer to the Attorney General for review all cases which “ [t]he Attorney General directs the Board to refer to him .” The question here is whether the SIU has stated a legal basis on which the Attorney General should direct that the case be referred to him for review. This is not a case in which the Chairman o f the B1A or a majority o f the Board has referred the m atter to the Attorney General for his review. C f 8 CFR § 3.1(h)(ii). *The Attorney General subsequently declined to review the BIA’s decision.

In a hearing before an immigration judge, counsel for the crew and the trial attorney for the Immigration and Naturalization Service argued that the crew were bona fid e alien crewmen and that they were not subject to exclusion. Both contended that the immigration judge lacked jurisdiction under § 235(b) o f the Act, 8 U .S.C . § 1225(b), to consider the admissibility o f the crew. The judge rejected that contention. He held that the crew were immigrants lacking valid immigrant visas and thus were inadmissible. The judge certified his decision to the BIA for review. The BIA’s decision reached two conclusions: (1) that the crew o f the Dosina were “ alien crewmen” for purposes of the Act; and (2) that they were not subject to the jurisdiction of an immigration judge presiding over exclusion proceedings. The proper procedure, the BIA pointed out, would have been for the immigration inspector to refuse alien crewmen temporary landing permits, rather than to place them in exclusion proceedings. The definition o f an “ alien crewman” is as follows: [A]n alien crewman serving in good faith as such in any capacity required for normal operation and service on board a vessel * * * who intends to land temporarily and solely in pursuit o f his calling as a crewman and to depart from the United States with the vessel * * * on which he arrived * * * .2 Here, the crew, as found by the BIA, consisted o f aliens serving on a foreign vessel. In this connection the BIA found that the crew members were named on lists obtained from an American consul in Mexico each 29 days, as required, and that none o f the crew sought to enter for a longer period than that in which the vessel was to be in port, or under any condi­ tions other than those o f an alien crewman. Given these findings, the BIA concluded that the crew “ clearly” were within the accepted statutory definition o f alien crewmen. With this particular conclusion we find no error, and the SIU has presented no basis on which to question it. The BIA next turned to § 235(b) o f the Act, 8 U.S.C. § 1225(b), pur­ suant to which the exclusion proceedings in this case were held. That sub­ section states: Every alien (other than an alien crewman), and except as other­ wise provided in subsection (c) o f this section and in section 273(d), who may not appear to the examining immigration o f­ ficer at the port o f arrival to be clearly and beyond a doubt en­ titled to land shall be detailed for further inquiry to be conducted by a special inquiry officer * * * . [Emphasis added.] The foregoing provision explicitly excepts from further inquiry before an im­ migration judge,3 such as in exclusion proceedings, any “ alien crewman.” The BIA held that since the Dosina crew consisted of alien crewmen,

’Section l01(a)(15)(D) o f the Act, 8 U .S.C . § 1101(a)(15)(D). ‘8 CFR § 1.1(1) provides: “ The term ‘immigration judge’ means special inquiry officer and may be used interchangeably with the term special inquiry officer wherever it appears in ihis chapter.”

the judge lacked jurisdiction to consider whether they were excludable as immigrants. This result would appear to follow directly from the plain language o f the statute. Accordingly, we cannot say that the BIA’s substantive analysis o f the precise legal issues here was incorrect. Nor can we conclude that the BIA chose to focus on the wrong questions, for it appears plain that if an im­ migration judge has no jurisdiction to conduct certain proceedings, it is the BIA’s responsibility in the first instance to address that matter.

n. The SIU urges the A ttorney General both to direct that this case be re­ ferred to him for review and to reverse the BIA’s decision, with the result that the immigration judge’s decision would be reinstated. The practical import o f this turns on the fact that if the immigration judge’s decision were to be reinstated, there would be a precedent for the proposition that aliens are excludable when they appear at a port seeking tem porary land­ ing permits as crewmen while performing lightering functions for super­ tankers in international waters. Underlying SIU ’s technical approach is the desire for a precedent favorable to SIU ’s interest o f furthering the job opportunities o f American seamen, who apparently believe that they ought to have exclusive rights to perform lightering operations that in the past have been perform ed, as in this case, by alien crews. Whatever the merits o f this as a policy m atter, it has no merit as a m atter o f law in the context o f this case. Two main legal arguments are raised by SIU: (1) that the BIA lacked jurisdiction to review the decision o f the immigration judge, and thus the judge’s decision should not have been disturbed; and (2) that the BIA committed reversible procedural error. In our view, neither contention is a sufficient basis for the A ttorney General to direct that the case be referred to him for review. The first argument rests on the SIU’s interpretation o f 8 CFR § 3.4, which provides, in pertinent part, that “ (d)eparture from the United States o f a person who is the subject to [s/c] deportation proceedings subsequent to the taking o f an appeal but prior to a decision thereon shall constitute a withdrawal o f the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.” The SIU notes that prior to the BIA’s decision, the crew excluded by the immigra­ tion judge had returned to their hom e country. However, at the time o f oral argument before the Board, several o f them had once again returned to the Dosina, which was then continuing in operation and evidently re­ ceiving permission for its alien crew to land temporarily in the United States.4 Nevertheless, the SIU takes the position that since the BIA knew

‘Execution o f an immigration judge’s order o f exclusion is stayed while the case is before the BIA by means o f certification. See 8 CFR § 3.6. The BIA noted in its decision that it was not certain on what particular basis the crew o f the Dosina had been perm itted to land subse­ quent to the immigration judge’s decision in this case.

that the crew members had voluntarily left the United States for some time prior to its final decision, 8 CFR § 3.4. required the BIA to rule that “ the appeal” should be considered as withdraw n.9 A main difficulty with this position is that 8 CFR § 3.4, on its face, speaks o f “ deportation proceedings” (emphasis added), not exclusion proceedings such as occurred in this case, and we have been told infor­ mally by the BIA Chairman that in practice the provision has been con­ fined to the deportation context.6 In addition, the provision refers to “ the taking o f an appear’ (emphasis added). In this case, the immigration judge certified his decision to the BIA for review; the m atter did not reach the BIA by means o f an appeal by an applicant or a district director.7 Thus, the regulation on its face is not applicable. The SIU’s second basic argument is that the BIA improperly and un­ fairly denied its motion o f November 7, 1977, when, on February 13, 1978, it allowed the SIU to act as an amicus curiae in the case. The core o f this suggestion is SIU ’s assertion that SIU’s economic interests in the out­ come o f the case were so great that its view should have been more fully considered by the BIA, such as in oral argument. The problem with this is that SIU’s motion was not denied. The m otion was entitled “ Seafarers In­ ternational Union o f N orth American Application for Intervention or Al­ ternatively as Amicus Curiae * * The alternative relief—participa­ tion as an amicus curiae—was granted, and so the contention that the BIA improperly failed to state the grounds for denial o f the motion as a whole seems to miss the m ark.' In the end, we are left with the fact that SIU has requested the A ttorney General to direct that the case be referred to him for review and to reverse the BIA decision which is not incorrect, and in procedural terms is not suc­ cessfully challenged by SIU. Further, im portant institutional interests are at stake here. It would appear that in a case certified to the BIA in which

’The SIU makes clear that its argum ent is distinct from a claim that the controversy was m oot. Rather, the SIU ’s position is that, as a m atter o f law, 8 CFR § 3.4 ousted the BIA o f jurisdiction over the case. ‘The distinction between exclusion proceedings, designed to determine whether an alien is admissible, and deportation proceedings that occur after an alien has entered the country is a fundamental one in the adm inistration o f the immigration laws. CF. 9 I&N Dec. 356, 360 (BIA 1961). Compare 8 CFR Part 236, dealing with exclusion, with 8 CFR Part 243, dealing with deportation. ’Pursuant to 8 CFR § 236.6, an immigration judge has authority to certify his decision to the BIA “ when it involves an unusually complex or novel question o f law or fa ct.” Appeals from orders arising in exclusion proceedings are covered by 8 CFR § 236.7. 'F urther, although the SIU appears mainly to be concerned that it did not participate in oral argument before the BIA, see M otion for Reconsideration at 2-3, 8 CFR § 3.1(e) pro­ vides plainly that oral argum ent will be heard by the BIA “ upon request.” T he S IU 's m otion o f November 7, 1977, did not request oral argum ent. A pparently the point was raised for the first time in the M otion for Reconsideration o f August 15, 1978—one m onth after the BIA rendered its decision in the case.

the primary issue is whether an immigration judge has jurisdiction to con­ duct certain exclusion proceedings, the BIA should have power to reach a decision, assuming no contrary law or regulation. Otherwise, an orderly administrative process regarding the resolution o f jurisdictional issues might well be jeopardized. For all o f these reasons, we consider that the SIU has not presented a valid basis for the Attorney General to direct that the case be referred to him for review.

L eon U lm an

D eputy Assistant A ttorney General Office o f Legal Counsel