[DO NOT PUBLISH]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).
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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
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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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