                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________
                                                                 FILED
                                      No. 11-10210      U.S. COURT OF APPEALS
                                  Non-Argument Calendar   ELEVENTH CIRCUIT
                                ________________________ SEPTEMBER 1, 2011
                                                               JOHN LEY
                                                                CLERK
                                  Agency No. A096-576-252

RAYMOND ALEXANDER CLARKE,

lllllllllllllllllllll                                                      Petitioner,

                                            versus

U.S. ATTORNEY GENERAL,
lllllllllllllllllllll                                                    Respondent.
                      ________________________

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

                                     (September 1, 2011)

Before BARKETT, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

         Raymond Alexander Clarke, a native and citizen of Jamaica, seeks review

of the Board of Immigration Appeals’s (“BIA”) order dismissing his appeal of the

Immigration Judge’s (“IJ”) decision pretermitting his application for adjustment of
status under Immigration and Nationality Act (“INA”) § 245(a), 8 U.S.C.

§ 1255(a), and granting him voluntary departure. On appeal, Clarke argues that

the BIA and IJ erred in concluding that he was an “alien crewman” and thus

statutorily ineligible for adjustment of status under INA § 245(c), 8 U.S.C.

§ 1255(c).1

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

admitted or paroled into the United States if the alien meets certain requirements.

INA § 245(a), 8 U.S.C. § 1255(a). When applying for adjustment of status, the

alien bears the burden of establishing that he meets the eligibility requirements.

INA § 240(c)(4), 8 U.S.C. § 1229a(c)(4) (as amended by the REAL ID Act of

2005, Pub. L. No. 109-13). However, adjustment of status under § 1255(a), is not

available to an “alien crewman.” 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).

       Clarke argues that he does not meet the definition of a crewman because he

did not enter the United States while employed on a ship, nor did he have a

       1
          We have jurisdiction to review the legal question of whether Clarke was statutorily
ineligible for adjustment of status. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Alvarado v.
U.S. Att’y Gen., 610 F.3d 1311, 1314 (11th Cir. 2010). We review the BIA and IJ’s finding that
Clarke was a “crewman” for substantial evidence and will reverse the agency’s findings only if
the record compels reversal. Todorovic v. U.S. Att’y Gen., 621 F.3d 1318, 1323-24 (11th Cir.
2010).

                                               2
contract of employment as a crewman waiting for him in the United States at the

time of his entry. However, an alien need not be a crewman before he enters the

United States in order to meet the INA’s definition; it is sufficient that the alien

enter the United States “in pursuit of his calling as a seaman.” Parzagonis v.

I.N.S., 747 F.2d 1389, 1390 (11th Cir. 1984). Clarke entered the United States

with a nonimmigrant “C-1/D” visa. A “C-1” visa classification is given to

nonimmigrants in transit, and a “D” visa classification is given to someone

accorded “alien crewman” status. See Matter of G-D-M-, 25 I. & N. Dec. 82, 85-

86 (BIA 2009). The IJ found that Clarke’s visa type was a clear indication that

Clarke was a crewman, and requested that Clarke submit documentary evidence of

his visa application to establish that the C-1 visa was issued for some purpose

other than to join a ship as a crewman. Clarke declined to present any such

evidence. Rather, his counsel acknowledged at the hearing that Clarke’s visa

application would show that he represented to immigration officials that he was an

intending crewman in order to obtain his visa.2 Accordingly, we cannot say this

       2
           Clarke argues that under the BIA’s unpublished decision in In re: Saturnino Orocary
Baguis Jr., 2005 WL 1848389 (BIA May 6, 2005), he should be classified as a nonimmigrant in
transit, not an alien crewman, because he was issued a Form I-94 rather than a Form I-184 or
Form I-95 upon his entry into the United States. As an initial matter, this decision is unpublished
and does not control here. Moreover, we see no reversible error in the IJ’s determination that
Clarke’s case is distinguishable from In re: Saturnino because the record shows that Clarke
obtained his visa by representing that he intended to obtain work as a crewman in the United
States.

                                                3
record compels reversal of the IJ’s conclusion that Clarke was an “alien crewman”

and thus failed to meet his burden of establishing that he was eligible for

adjustment of status.

      PETITION DENIED.




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