NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-4232
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GENARDO DOMINGO MENDOZA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A073-577-601)
Immigration Judge: Honorable Annie Garcy
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Submitted Under Third Circuit LAR 34.1(a)
November 14, 2011
Before: RENDELL and AMBRO, Circuit Judges
and JONES, II,* District Judge.
(Opinion Filed: November 15, 2011 )
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OPINION OF THE COURT
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* The Honorable C. Darnell Jones, II, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge
Genaro Domingo Mendoza, a native and citizen of the Philippines, petitions
for review of the order of the Board of Immigration Appeals (“BIA” or “Board”)
affirming the Immigration Judge‟s decision that, because he was a crewman,
Mendoza was statutorily ineligible for cancellation of removal. For the reasons
discussed below, we will deny the petition.
I.
On June 17, 1994, Mendoza entered the United States at Los Angeles,
California on a “C-1/D” visa and was issued an I-94 entry document that
authorized him to remain in the country until July 16, 1994. At his time of entry,
Mendoza presented to U.S. immigration authorities a Seaman‟s Service Record
Book, issued to him by the Philippine Coast Guard. On August 16, 1994,
Mendoza filed an application for asylum, on which he listed his “current
immigration status” as “crewman.” The application for asylum was denied.
In 2004, Mendoza was placed in removal hearings for failure to depart the
United States. After conceding removability, Mendoza requested relief in the
form of cancellation of removal, asylum, withholding of removal, and, in the
alternative, voluntary departure. Mendoza eventually withdrew his asylum
application. In 2006, the IJ found Mendoza statutorily ineligible for cancellation
of removal under INA § 240A(c)(1), 8 U.S.C. § 1229b(c)(1), because he entered
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the United States as a crewman.1 Mendoza also filed a motion to terminate
proceedings due to incorrect details in the Notice to Appear. The IJ allowed the
Department of Homeland Security to amend the Notice to Appear to include the
correct details and then denied the motion to terminate because the amended
details did not significantly modify the reason Mendoza was removable.
The BIA affirmed the IJ‟s decision on appeal, rejecting Mendoza‟s
argument that he was not a crewman because at the time of his entry to the United
States he did not have current employment upon a ship. Regardless of whether he
had ever been employed as a crewman, had any prior training or experience as a
crewman, or had located future employment aboard a specific vessel, the Board
found Mendoza entered the United States as a crewman because he “secured a visa
as a crewman, entered the United States pursuant to that visa, arrived with the
intention of working as a seaman, and identified himself as a crewman on his
asylum application.” Mendoza filed this timely petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the question
whether Mendoza is statutorily ineligible for cancellation of removal under INA
§ 240A(c)(1), 8 U.S.C. § 1229b(c)(1), due to his status as a crewman. “We apply
substantial evidence review to agency findings of fact, departing from factual
findings only where a reasonable adjudicator would be compelled to arrive at a
1
Under section 240A(c)(1)of the Immigration and Nationality Act, “an alien who
entered the United States as a crewman subsequent to June 30, 1964” is ineligible
for cancellation of removal.
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contrary conclusion.” Mendez–Reyes v. Att'y Gen. of the U.S., 428 F.3d 187, 191
(3d Cir. 2005).
In his petition for review, Mendoza repeats the same argument he made to
the BIA: because he was not employed as a crewman prior to his arrival, he
cannot be considered a crewman for purposes of cancellation of removal.2 As the
Board correctly noted, however, at the time of his entry Mendoza had secured a
“C-1/D” visa (in its decision, the BIA explained: “The „D‟ on his visa indicated
that he had been accorded „alien crewman‟ status under section 101(a)(15(D) of
the Act.”); he possessed and presented to U.S. immigration authorities a document
issued by the Philippine Coast Guard called a “Seaman‟s Service Record Book”;
in a 1994 application for asylum, Mendoza listed his current immigration status as
“crewman”; and he testified before the IJ that, when he entered the U.S. in 1994,
he was planning on working on a ship. Regardless of his previous or subsequent
employment, substantial evidence supports the BIA‟s conclusion that Mendoza
knowingly secured entry into the United States as a crewman.
Accordingly, we will deny Mendoza's petition for review.
2
Mendoza also argues that he cannot be considered a crewman because he was
issued an I-94 entry document admitting him as a C-1 alien in transit, rather than
an I-95 entry document issued to alien crewman. We agree with the Board that the
pertinent inquiry is not the entry document U.S. immigration authorities issued to
Mendoza upon his arrival to the United States, but whether the respondent was
issued a visa as an alien crewman and entered the United States as a crewman.
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