          United States Court of Appeals
                      For the First Circuit

No. 12-2018

                         JHONNY GUERRERO,

                           Petitioner,

                                v.

                       ERIC H. HOLDER, JR.,
              ATTORNEY GENERAL OF THE UNITED STATES,

                           Respondent.



                PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                              Before

                  Torruella, Lipez and Thompson,
                          Circuit Judges.


     Eduardo A. Masferrer and Masferrer & Associates, P.C., on
brief for petitioner.
     Jennifer Paisner Williams, Senior Litigation Counsel, Office
of Immigration Litigation, Civil Division, U.S. Department of
Justice, Stuart F. Delery, Principal Deputy Assistant Attorney
General, Civil Division, and David V. Bernal, Assistant Director,
on brief for respondent.



                         August 21, 2013
            TORRUELLA, Circuit Judge.              Petitioner Jhonny Guerrero

("Guerrero"), a native and citizen of the Dominican Republic,

petitions for review of the Board of Immigration Appeals' ("BIA")

order denying his application for cancellation of removal.                       On

appeal, Guerrero raises two challenges to the BIA's finding that he

was   a   crewman   upon   entry    into     the    United   States,   and     thus,

statutorily    ineligible      for     discretionary         relief    under     the

Immigration and Nationality Act ("INA").                First, Guerrero argues

that he does not fit within the "crewman" classification because he

was admitted into the United States as a C-1 nonimmigrant in

transit.      Second,      Guerrero    contends       that   the   circumstances

surrounding his entry indicate that he was not intending to pursue

a calling as a crewman and, consequently, should not have been

classified as such. After carefully considering Guerrero's claims,

we deny the petition for review.

                               I.     Background

            On September 1, 1998, the United States issued Guerrero

a C-1/D visa.1      The annotation on the visa reads: "as 2-engineer



1
   A C-1/D visa is a dual visa. The "C-1" visa classification is
given to a nonimmigrant "in immediate and continuous transit
through the United States."      The "D" visa classification is
accorded to a nonimmigrant "alien crewman" who is "serving in good
faith as such in a capacity required for normal operation and
service on board a vessel . . . [and] who intends to land
temporarily and solely in pursuit of his calling as a crewman and
to depart from the United States with the vessel or aircraft on
which he arrived or some other vessel or aircraft."      8 U.S.C.
§ 1101(a)(15)(C), (D).

                                       -2-
aboard Poseidon." Guerrero entered the United States on October 5,

1998, following his arrival at Miami International Airport. At the

airport, Guerrero was admitted as a "C-1 nonimmigrant in transit,"

and was authorized to remain in the United States until November 4,

1998.

            According to Guerrero, after leaving the airport he

checked in with Rigel Ships Agency, a shipping agency he had worked

with in the past.      But due to adverse weather conditions, the ship

that Guerrero was scheduled to work on, the Sea Mist, had departed

Miami earlier than planned. Guerrero remained in the United States

and eventually married a United States citizen.             In 2006, Guerrero

applied for an adjustment of status, which was denied, and was

subsequently placed in removal proceedings. In 2009, he was served

with a Notice to Appear, which charged that he was removable for

remaining in the United States for a time longer than permitted.

See 8 U.S.C. § 1227(a)(1)(B).

            Guerrero     conceded     removability,     but     applied    for

cancellation of removal under INA § 240B before an Immigration

Judge ("IJ").     See 8 U.S.C. § 1229b(b)(1).         As an alternative to

cancellation of removal, Guerrero requested voluntary departure.

In his application, Guerrero indicated that he had been employed as

a manual laborer painting, remodeling, providing maintenance, and

cleaning.

            In   support   of   his   application     for   cancellation    of


                                      -3-
removal, Guerrero submitted a written declaration, dated May 9,

2011. In that declaration, Guerrero swore that, prior to his entry

into the United States, he worked with Rigel Ships Agency aboard

various vessels.2   Furthermore, Guerrero conceded that, as part of

his application to renew his visa, he submitted "a letter from when

he worked aboard the Poseidon" knowing "that upon arrival [he]

would not be boarding the Poseidon."3      Moreover, he asserted that,

on the day of his arrival, when he checked in with Rigel Ships and

learned he "could not depart on the Sea Mist or the Poseidon as

they were not in Miami . . . [he] had no intention of leaving on

any other vessel as a crewman."

          On   March   9,   2011,    an   IJ   pretermitted   Guerrero's

application. On May 19, 2011, the IJ entered an oral decision

finding Guerrero ineligible for cancellation of removal because he

had last entered the United States as a crewman.         Explaining her

reasoning, the IJ stated: "when [Guerrero] entered on the C-1 visa,

his intent was to pursue his calling as a crewman and whether he

intended to do that directly or indirectly by reporting to his

employing agency is really irrelevant in these proceedings."


2
  A certification letter from an employee of Rigel Ships Agency in
Florida, submitted upon request from Guerrero as additional support
for his application for cancellation of removal, indicates that
Guerrero was an "old crewmember" who had worked on several vessels
for the agency as a Second Engineer since 1996.
3
  Although Guerrero states that he renewed his visa, the record is
unclear as to whether an old visa was renewed or a new visa was
issued.

                                    -4-
However, the IJ granted Guerrero voluntary departure.               Guerrero

appealed the denial of his application for cancellation of removal

to the BIA.

            On July 23, 2012, the BIA affirmed the IJ's decision and

dismissed Guerrero's appeal.         After reviewing the evidence of

record,4 based on its previous decisions in Matter of G-D-M-, 25 I.

& N. Dec. 82 (BIA 2009) and Matter of Goncalves, 10 I. & N. Dec.

277 (BIA 1963), the BIA found that Guerrero was a crewman.           The BIA

asserted that, even though Guerrero's visa was annotated "C-1," and

he had not been employed as a crewman since his arrival, the

following     facts   were   dispositive    of   his   classification     as   a

crewman: "[he] secured a visa as a crewman; entered the United

States on that visa; arrived in this country with the intention of

working as a seaman; and was pursuing employment as a crewman, even

though he was unable . . . due to adverse weather conditions."

Thus,   the    BIA    concluded   that     Guerrero    was   ineligible    for

cancellation of removal pursuant to section 240A(c)(1).                   This

petition for review followed.




4
  The record included a copy of the visa, the certification letter
from the employee of Rigel Ships Agency, and Guerrero's written
declaration.

                                    -5-
                               II. Discussion

           Guerrero's appeal presents a question of law over which

we have jurisdiction.        See 8 U.S.C. § 1252(a)(1).5         In cases like

this, where the Board has affirmed an IJ's decision "but opts to

offer a glimpse into its considerations, we review both the

decision of the BIA and the IJ."         Restrepo v. Holder, 676 F.3d 10,

15 (1st Cir. 2012). This court reviews "the BIA's [and the IJ's]

legal   conclusions    de    novo,    giving   deference   to    the   agency's

reasonable interpretation of the statutes and regulations within

its purview." González v. Holder, 673 F.3d 35, 38 (1st Cir. 2012).

           As relevant here, the INA grants the Attorney General

power to cancel the removal of an alien if the alien meets certain

requirements.    See 8 U.S.C. § 1229b(c)(1).           Nevertheless, section

240A(c)(1) of the INA establishes that an individual "who entered

the United States as a crewman subsequent to June 30, 1964" is

ineligible for cancellation of removal.               8 U.S.C. § 1255(c);

Matter of Rebelo, 13 I. & N. Dec. 84, 86 (BIA 1968)("Congress

intended   to   bar   from   relief    only    such   aliens    as   had   gained

relatively easy access to the United States by reason of their

occupation as crewmen.").



5
  Generally, "[c]ancellation of removal is a form of discretionary
relief over which we[] have no appellate jurisdiction." Elysee v.
Gonzales, 437 F.3d 221, 223 (1st Cir. 2006). However, "appellate
jurisdiction exists when a petition for judicial review raises
claims premised on either constitutional questions or questions of
law." Ayeni v. Holder, 617 F.3d 67, 70 (1st Cir. 2010).

                                       -6-
              The INA provides two definitions for "crewman" to be

"read in conjunction when construing the crewman provision."

Matter of Loo, 15 I. & N. Dec. 601, 602-03 (BIA 1976).                    The first

definition defines a "crewman" as "a person serving in any capacity

on board a vessel or aircraft."               8 U.S.C. § 1101(a)(10).            The

second provides that an "alien crewman" is an individual "serving

. . . on board a vessel . . . intend[ing] to land temporarily and

solely in pursuit of his calling as a crewman and to depart from

the United States with the vessel or aircraft on which he arrived

or some other vessel or aircraft."             8 U.S.C. § 1101(a)(15)(D)(I).

              In determining whether an alien is a crewman, we examine

both   the    type   of   visa   the   alien    possessed    as    well    as   "the

circumstances surrounding an [alien]'s entry . . . ."                     González,

673 F.3d at 39.      "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."      Matter of G-D-M-, 25 I. & N. Dec. at 85.

              Guerrero    challenges    the     assignment    of    a     "crewman"

classification to him, arguing that he was admitted as a C-1

nonimmigrant in transit. This argument fails. First, we find that

the    type    of    visa   Guerrero     possessed     supports         the     BIA's

determination that Guerrero was properly classified as an alien

crewman.      The record clearly demonstrates that the United States

issued Guerrero a C-1/D visa to serve as an engineer aboard the


                                       -7-
Poseidon.    The "D" on the visa accorded Guerrero alien crewman

status. Furthermore, Guerrero's admission as a C-1 nonimmigrant in

transit, while holding a C-1/D visa, is consistent with "crewman"

classification.    See Chica-Román v. Attorney Gen. of U.S., 462 F.

App'x 221, 223-24 (3d Cir. 2012) (finding that petitioner, who was

issued a C-1/D visa, and admitted to the United States under a C-1

classification, was properly classified as an alien crewman);

Petitson v. U.S. Atty. Gen., 482 F. App'x 442, 446 (11th Cir. 2012)

(same).

            Recently, this court determined that "the particular type

of visa with which a person enters is [not] outcome determinative."

González, 673 F.3d at 39. In González, we held that the BIA

properly classified petitioner as an alien crewman, despite the

fact that it was unclear whether he had entered the United States

on a C-1 visa or a D-1 crewman's visa.     Id.   Moreover, pursuant to

BIA precedent, an individual who enters as a C-1 nonimmigrant in

transit may nevertheless qualify as a crewman.          See Matter of

G-D-M-, 25 I. & N. Dec. at 85-96;      Matter of Goncalves, 10 I. & N.

Dec. at 278-79;   see also Chica-Román, 462 F. App'x at 224 ("[T]he

pertinent inquiry in determining whether [a petitioner] is a

crewman is not the entry document the United States immigration

authority issued [] him ... but whether [the petitioner] was issued

a visa as an alien crewman and entered the United States as a

crewman."). Since Guerrero's classification as a "C-1 nonimmigrant"


                                 -8-
is not dispositive of his crewman classification, and the visa he

was issued clearly indicated he was accorded alien crewman status,

we agree with the IJ and BIA's determination.

            Second, the circumstances surrounding Guerrero's entry

indicate that he arrived in the United States with the intention of

working as a seaman.    Guerrero admits that he submitted a letter

from his previous employment aboard the Poseidon when applying for

his visa.     The annotation on the visa – "as 2-engineer aboard

Poseidon" - suggests that Guerrero demonstrated an intent to work

as a crewman.   It is undisputed that, on the day of his arrival in

the United States, Guerrero checked in with Rigel Ships Agency to

verify the whereabouts of the ship he intended to board.       The

record also reflects that Guerrero did not board the Sea Mist

because the ship had departed prior to his arrival due to adverse

weather conditions.    The fact that Guerrero, after entering the

United States, did not work as a crewman is irrelevant, provided he

"entered the United States in pursuit of his occupation as a

seaman."    See González, 637 F.3d at 39 (quoting Matter of G-D-M-,

25 I. & N. Dec. at 85); see also Petitson, 482 F. App'x at 446

(stating "that the focal issue in determining whether an alien

qualifies as a crewman is whether the petitioner entered the United

States in pursuit of her calling as a seaman") (quotation marks




                                 -9-
omitted) (brackets omitted).6     We need not look beyond Guerrero's

own statements in his declaration to ascertain his subjective

intent to work as a crewman upon entering the United States.

          Guerrero, nevertheless, urges us to reach a different

conclusion. Specifically, Guerrero argues that, like the respondent

in Matter of Rebelo, 13 I. & N. Dec. 84 (BIA 1968), his last entry

into the United States was not as a crewman, even though he had

worked as a crewman preceding his entry.        We find this argument

unpersuasive and the case distinguishable.        In Rebelo, the BIA

found that, even though the petitioner was working as a crewman on

the vessel he arrived in, he was not a crewman for purposes of

discretionary relief.   Id. at 85.       The BIA reasoned that at the

time of his last entry, the petitioner possessed a B-2 visa,

authorizing him to remain in the United States as a nonimmigrant

temporary visitor for pleasure.    Id.    Moreover, the BIA found that

he did not enter pursuant to his employment as a crewman or with

the intention of pursuing such a calling.       Id. at 86.   Here, in

contrast, the record indicates that Guerrero entered, not as a

temporary visitor for pleasure, but as a nonimmigrant in transit,

and that he was accorded a visa as a C-1/D alien crewman.

          Similarly, Guerrero posits that, unlike the petitioner in


6
   In Petitson, the Eleventh Circuit reaffirmed its holding in
Parzagonis v. I.N.S., 747 F.2d 1389 (11th Cir. 1984), where it
stated that an immigrant who never served as a crewman was
nonetheless ineligible for discretionary relief because he had
entered the United States in pursuit of that calling.

                                -10-
Lewis v. U.S. Atty. Gen., 482 Fed. App'x. 469, 471 (11th Cir.

2012), who testified that she intended to work as a crewman, and

the petitioner in González, 673 F.3d at 39, who testified that he

last entered the United States as a crewman, his declaration

demonstrates that he did not intend to pursue a calling as a

crewman.     We disagree.   Guerrero's declaration states that on the

day he arrived in the United States, he checked in with Rigel Ships

Agency, "according to procedure."             At the agency, he learned that

the ship he was destined to board had departed, and declared he had

"no   intention    of   leaving   on    any    other   vessel."     Guerrero's

declaration suggests that he intended to work as a crewman, but did

not do so because the ship he was going to board left early.

             All the same, Guerrero's intentions after he arrived and

found the Sea Mist had departed are, as stated above, irrelevant,

as    the   pertinent   inquiry   revolves        around   the    circumstances

surrounding the individual's expressed intentions at the time of

entry.      See Rodríguez v. U.S. Atty. Gen., 455 F. App'x 940, 942

(11th Cir. 2012) (finding that petitioner was a crewman "despite

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

club" because she was issued a C-1/D alien crewman's visa and

entered the United States in pursuit of that occupation).                It is

undisputed that, at entry, Guerrero believed he would be boarding

a ship as a crewman, and entered the country intending to do just

that.


                                       -11-
               Lastly, Guerrero argues that, unlike the respondent in

Matter of G-D-M-, who identified himself as a "crewman" on his

asylum application and possessed a seaman's service record book, he

has not once identified his occupation as a crewman, nor has he

possessed a seaman's service record book.                We agree with Guerrero

that the above stated factors may be taken into consideration when

analyzing the circumstances surrounding his entry.                   See Mendoza v.

Att.    Gen.    of    U.S.,   451   F.   App'x    181,    183   (3d    Cir.   2011)

(considering that petitioner carried a seaman's service record book

and listed himself as a "crewman" in his application for asylum).

However, these factors are simply considerations left to the

discretion of the BIA and the IJ, and are by no means dispositive

in determining whether an alien is a crewman. See Beri v. U.S.

Atty.   Gen.,     438    F.   App'x   841,      844   (11th   Cir.    2011)   ("The

dispositive issue is whether the alien entered the United States in

pursuit of his calling as a seaman.").                 The record supports the

BIA's finding that the circumstances surrounding Guerrero's entry

indicate that he entered the United States intending to work as a

crewman, and pursuing employment as such.

               In sum, "[b]y choosing to seek entry to the United States

as a crewman, [Guerrero] agreed to the limitations associated with

that status.         Therefore, he cannot now avoid the consequences of

those restrictions in removal proceedings by claiming not to be a

crewman."       Matter of G-D-M-, 25 I. & N. Dec. at 84-85.


                                         -12-
                         III. Conclusion

          For the foregoing reasons, Guerrero's petition for review

is denied.




                               -13-
