                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14822         ELEVENTH CIRCUIT
                                        Non-Argument Calendar      AUGUST 23, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                                           Agency No. A087-026-989


RAHUL BERI,

llllllllllllllllllllllllllllllllllllllll                                      Petitioner,


                                                   versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                    Respondent.


                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                              (August 23, 2011)

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:
       Rahul Beri petitions for review of the Board of Immigration Appeals’s

(BIA) affirmance of the Immigration Judge’s (IJ) denial of his motion for

adjustment of status. The BIA concluded that because Beri had served aboard a

vessel in the capacity of a crewman, and had sought and gained admission to the

United States because of his occupation, Beri qualified as a crewman and thus was

ineligible for adjustment of status. In his petition, Beri argues that the BIA

reached this decision in error.1 After a thorough review of the record, we deny the

petition in part and dismiss it in part.

       In 2000, Beri, a native and citizen of India, obtained a crewman visa and

began working as a crewman on a sailing ship. Between October 2000 and

January 2001, Beri entered the United States six times as a crewman and was

granted a crewman’s landing permit, Form I-95. The I-95 visa gave Beri

authorization to remain in the country until his ship left port. On Beri’s last entry

into the United States under the I-95 permit, Beri remained here longer than

authorized. According to the record, on January 31, 2001, Beri and several other




       1
         Beri also argues that he should have been charged with fraud, which would have made
him eligible for a waiver. We lack jurisdiction to hear any cause or claim by an alien arising
from the decision or action by the Attorney General to commence proceedings against an alien,
and therefore, will not address this issue. 8 U.S.C. § 1252(g); see also Reno v. American-Arab
Anti-Discrimination Comm., 525 U.S. 471, 484-87 (1999). We dismiss the petition in part on
this ground.

                                               2
crew members left the ship and did not return. The ship’s crew alerted the

Immigration and Naturalization Service that those crew members had deserted.

      In 2002, Beri married a U.S. citizen, and his wife filed an immigrant visa

petition, Form I-130, which was denied. In 2005, Beri married his second wife

and filed a second Form I-130, which was approved. Beri then moved to adjust

his status to that of a legal permanent resident. In March 2008, the Citizen and

Immigration Service determined that Beri was not eligible for adjustment of status

because he entered the country as a crewman and thus was statutorily ineligible for

the requested relief. The Department of Homeland Security (DHS) then issued a

notice to appear, charging Beri as removable under 8 U.S.C. § 1227(a)(1)(B)

      At the removal hearing, Beri admitted the allegations in the notice to appear,

including that he had entered the United States as a crewman. Nevertheless, he

argued that he was not a crewman because he had committed fraud and

misrepresentation upon entry in January 2001 when he presented his I-95 petition

and stated his intent to depart with his ship. He explained that he never intended

to depart. He then argued that the DHS should have charged him as inadmissible

due to this fraud, which would have made him eligible for a waiver of

inadmissibility under 8 U.S.C. § 1182(i).




                                            3
      The IJ determined that Beri had entered the United States as a crewman and

thus was ineligible to adjust his status. The IJ further found that Beri was not

eligible for any waiver because he had not been charged with fraud.2

      Beri appealed to the BIA, which concluded that Beri qualified as a crewman

because he served aboard the ship in that capacity and he had sought and gained

admission to the United States because of his occupation. The BIA also noted that

Beri had obtained a Form I-95 petition allowing him to enter the country as a

crewman, and that his wife had listed him as a crewman in the I-130 petition. The

BIA rejected Beri’s argument that it should consider his subjective intent because

to do so would undermine Congress’s intent in limiting access to adjustment of

status by those who enter the country easily as a result of their occupation. The

BIA also found that it lacked jurisdiction to review the discretionary decision

whether to charge Beri with fraud. Beri now seeks review in this court.

      We review only the BIA’s decision, except to the extent that it expressly

adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). Here, because the BIA issued its own decision, we review the BIA’s

decision. We review the decision of the BIA to determine whether it is supported

by reasonable, substantial, and probative evidence on the record considered as a


      2
          The IJ granted Beri’s request for voluntary departure.

                                                 4
whole. Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010) (quoting

Al Najjar v. Ashcroft, 257 F.3d 1262, 1283–84 (11th Cir. 2001)). We review

questions of law, including the BIA’s statutory interpretations, de novo. De

Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1278 (11th Cir. 2006).

      When we review the BIA’s construction of a statute that it administers, we

apply Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)

and will defer to the BIA’s interpretation of the 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). Under Chevron, the first step of our analysis is to

determine “whether Congress has directly spoken to the precise question at issue.

If the intent of Congress is clear, that is the end of the matter; for the court, as well

as the agency, must give effect to the unambiguously expressed intent of

Congress.” Chevron, U.S.A., Inc., 467 U.S. at 842-43. But “when . . . the statute

is silent or ambiguous with respect to a specific issue, the question for the court is

whether the agency’s answer is based on a permissible construction of the statute.”

Quinchia, 552 F.3d at 1258 (quotation and alterations omitted).

      Under 8 U.S.C. § 1255, an alien may adjust status to that of permanent

resident if: (1) the alien makes an application for such adjustment; (2) the alien is

eligible to receive an immigrant visa and is admissible to the United States for

                                            5
permanent residence; and, (3) an immigrant visa is immediately available to him at

the time his application is filed. 8 U.S.C. § 1255(a). An alien crewman is not

eligible to adjust his status. 8 U.S.C. § 1255(c)(1). The term “crewman” means “a

person serving in any capacity on board a vessel.” 8 U.S.C. § 1101(a)(10).

      The BIA has found that two elements are required for an alien to constitute

a crewman: (1) the alien must be serving aboard a vessel in a capacity required for

its normal operation; and, (2) the alien must be seeking and gain admission to the

United States because of his occupation in that role. Matter of Campton, 13 I&N

Dec. 535, 537 (BIA 1970). The BIA has consistently examined the type of visa an

alien possessed, as well as the nature of his admission, to determine whether he

should be considered a crewman. Matter of G-D-M-, 25 I&N Dec. 82, 85 (BIA

2009). By choosing to seek entry to the United States as a crewman, an alien

agrees to the limitations associated with that status and cannot avoid the

consequences of those restrictions in removal proceedings by claiming not to be a

crewman. Id. at 84-85. If it is apparent that the alien was issued a visa as a

crewman and entered the United States in pursuit of his occupation as a seaman,

then he is to be regarded as an alien crewman. Id. at 85. The dispositive issue is

whether the alien entered the United States in pursuit of his calling as a seaman.

Parzagonis v. I.N.S., 747 F.2d 1389, 1390 (11th Cir. 1984).

                                          6
       In this case, the BIA properly concluded that Beri qualified as a crewman.3

Beri obtained a crewman visa and entered the United States on this visa numerous

times. He also obtained a crewman’s landing permit, which he used on each of his

stays here. Moreover, when his wife applied for an immigrant visas on Beri’s

behalf, she indicated that he was a crewman. Thus, the BIA’s conclusion is proper

and Beri was ineligible for adjustment of status.

       PETITION DENIED IN PART, DISMISSED IN PART.




       3
          Beri also argues that he was not a crewman because he did not serve in good faith. See
8 U.S.C. § 1101(a)(15)(D). Congress has not directly spoken on the issue of subjective and
objective intent with respect to an alien’s classification as a crewman. 8 U.S.C.
§ 1101(a)(15)(D)(i). Because the statute is silent, the question is whether the BIA’s
interpretation is based on a permissible construction of the statute. Quinchia, 552 F.3d at 1258.
Here, we conclude that the BIA’s interpretation is reasonable. Based on the language in
§ 1255(c), it was unlikely that Congress intended for an alien to obtain entry into the United
States as a crewman, but not be subject to the limitations on adjustment of status merely because
of his subjective intent. 8 U.S.C. § 1255(c). Thus, the BIA’s interpretation is entitled to
Chevron deference. See Quinchia, 552 F.3d at 1258.


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