                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________
                                                                  FILED
                               No. 11-12634       U.S. COURT OF APPEALS
                           Non-Argument Calendar    ELEVENTH CIRCUIT
                         ________________________        FEB 6, 2012
                                                                JOHN LEY
                           Agency No. A086-966-478               CLERK



GRACELYN RODRIGUEZ,



                                                                     Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                         ________________________

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

                               (February 6, 2012)

Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.

PER CURIAM:

     Petitioner Gracelyn Rodriguez, a native and citizen of the Philippines, seeks
review of the Board of Immigration Appeals’s (“BIA”) order affirming the

Immigration Judge’s (“IJ”) final order of removal. While in the Philippines,

Rodriguez obtained a C1/D visa after representing on her application to the United

States Department of State that she was a “seafarer,” and subsequently gained

admission to the United States on that visa. Rodriguez now argues that the BIA

erred when it pretermitted her application for adjustment of status to that of an

alien lawfully admitted for permanent residence after concluding that she was

statutorily ineligible for such relief because she was a crewman. She asserts that

she was not a crewman because she came to the United States intending to work at

a country club, and never intended to work on a ship.

      As an initial matter, we review only the BIA’s judgment because the BIA

did not expressly adopt the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001).

                                  I. Jurisdiction

      We review de novo whether we have subject matter jurisdiction. Arias v.

U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007) (per curiam). We do not

retain jurisdiction to review a BIA judgment regarding the granting of adjustment

of status. INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), cross referencing

INA § 245, 8 U.S.C. § 1255. Nonetheless, we do have jurisdiction to review a

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question of law or constitutional claim raised in a petition for review. INA

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). We have jurisdiction to review

non-discretionary legal

determinations as to statutory eligibility for discretionary relief. Alvarado v. U.S.

Att’y Gen., 610 F.3d 1311, 1314 (11th Cir. 2010).

          We conclude from the record that we have jurisdiction over Rodriguez’s

claim because she challenges the BIA’s non-discretionary legal determination that

she was statutorily ineligible for adjustment of status.

                                       II. Alien Crewman

          We review questions of law de novo, including the BIA’s statutory

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

2006). We give Chevron1 deference, where appropriate, to single-judge,

non-precedential BIA decisions where the BIA relied upon its own precedential

opinion. See Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008)

(distinguishing cases where the agency relied on a federal court’s or the BIA’s

precedential opinion, and concluding that a single-judge, non-precedential BIA

opinion is not entitled to Chevron deference where it does not rely on existing BIA

or federal court precedent). We must defer to the BIA’s construction of a statute

1
    Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984).

                                                  3
that it administers if it is reasonable and does not contradict the clear intent of

Congress. Id. The first step in Chevron analysis is to determine whether Congress

has directly spoken to the precise question at issue. Chevron, U.S.A., Inc., 467

U.S. at 842-43, 104 S. Ct. at 2781. We, as well as the BIA, must give effect to the

unambiguously expressed intent of Congress. Id. Where a statute is silent or

ambiguous with respect to the precise issue at hand, however, the question for us

is whether the BIA’s answer is based upon a permissible construction of the

statute. Id. at 843, 104 S. Ct. at 2782. In such a case, we may not substitute our

own construction of a statutory provision for a reasonable interpretation made by

the BIA. Quinchia, 552 F.3d at 1258.

      The Attorney General, at his discretion, may adjust the status of an alien to

that of an alien lawfully admitted for permanent residence if the alien meets

certain requirements. INA § 245(a), 8 U.S.C. § 1255(a). An alien bears the

burden of proving her eligibility for adjustment of status. INA § 240(c)(4),

8 U.S.C. § 1229a(c)(4). Alien crewmen, however, are statutorily ineligible for

adjustment of status. INA § 245(c), 8 U.S.C. § 1255(c). The INA defines a

“crewman” as a person serving in any capacity on board a vessel or aircraft. INA

§ 101(a)(10), 8 U.S.C. § 1101(a)(10).

      When determining whether an alien qualifies as a crewman, the BIA

                                           4
examines the alien’s visa and the circumstances surrounding her entry into the

United States. Matter of G-D-M-, 25 I. & N. Dec. 82, 85 (BIA 2009). An alien is

a crewman if it is apparent that she was issued a visa as a crewman and entered the

United States in pursuit of her occupation as a seaman, and, upon entry as a

crewman, the alien cannot avoid the limitations associated with that status. Id. at

84-85. The focal issue in determining whether an alien qualifies as a crewman is

whether she entered the United States in pursuit of her calling as a seaman.

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

      We conclude that the BIA’s finding that Rodriguez was a crewman despite

her subjective intention to work in the United States at a country club was a

reasonable construction of the Immigration and Nationality Act to which we must

defer. Because Rodriguez was a crewman, she was statutorily ineligible for

adjustment of status.

      After a careful and thorough review of the administrative record and the

parties’ briefs, we deny Rodriguez’s petition for review.

      PETITION DENIED.




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