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Guerrero v. Holder

United States Court of Appeals, First Circuit

August 21, 2013

Jhonny GUERRERO, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Page 46

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.

Before TORRUELLA, LIPEZ and THOMPSON, Circuit Judges.

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

Page 47

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 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 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 ...


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