(1946). It would be abusive of the administrative process to permit plaintiff, who was represented by counsel, to file a request for affirmative relief with an official of an agency and then, when denied that relief on substantive grounds, to avoid that decision, claiming that he never should have made the request, only to reapply for the same relief with the agency in another forum.
Plaintiff alternatively argues that even if the defendant has jurisdiction to decide his application for adjustment of status, his decision was premature in light of his asylum request which was made in his deportation proceedings. Plaintiff has no support for the novel argument that an asylum request pursuant to the Protocol, a treaty, preempts an application for adjustment of status under the Immigration and Nationality Act. These separate and distinct provisions would appear to have at least equal force of law and are based on different criteria. More importantly, however, it has been held that the Protocol "was neither intended to nor had the effect of substantively altering the statutory immigration scheme." Pierre v. United States, 547 F.2d 1281, 1288 (5th Cir. 1977). Cf. Kan Kam Lin v. Rinaldi, 361 F. Supp. 177, 185 n. 7 (D.N.J.1973), Aff'd, 493 F.2d 1229 (3d Cir.), Cert. denied, 419 U.S. 874, 95 S. Ct. 136, 42 L. Ed. 2d 113 (1974). I reject, therefore, the contention that an asylum request under the Protocol alters the operation of § 203(a)(7) in any manner.
II. DENIAL OF PLAINTIFF'S APPLICATION FOR CLASSIFICATION AS A REFUGEE UNDER SECTION 203(a)(7):
The defendant relied on two determinations in denying plaintiff's application under § 203(a)(7): (1) plaintiff was an "alien crewman" and therefore excluded from eligibility by the operation of 8 C.F.R. § 245.4(a) and § 245 of the Act and (2) he was not from the "general area of the Middle East" and therefore ineligible for § 203(a)(7) relief. Either determination would be sufficient to deny the application. I find that there are no material issues of fact as to the first conclusion and that as a matter of law plaintiff was not eligible for refugee classification.
Plaintiff's attack on the defendant's conclusion on the "alien crewman" issue is threefold: (1) plaintiff did not enter the country as a "crewman"; (2) assuming he is a crewman, he is not barred from adjustment of status under § 203(a)(7) and (3) even if plaintiff is barred from adjustment of status, he is not barred from classification as a refugee which, he argues, should be determined independent from the applicant's basis of entry into the United States.
Plaintiff's first argument appears to be an attack on the factual conclusion that plaintiff entered as a crewman. However, plaintiff stipulated to the fact that on August 13, 1971, when he first arrived in the United States, he "applied for and was admitted to the United States as (a crewman)" pursuant to 8 U.S.C. § 1101(a)(15)(D). There can be no question that he entered this country as an "alien crewman" and the administrative record amply supports this conclusion.
Plaintiff's second argument is based upon the contention that he is a "refugee crewman" who by the enforcement of the Protocol should not be barred from adjustment of status under § 203(a)(7) because Article 32 of the 1951 Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, incorporated in the 1967 Protocol by Article I provides that treaty countries "shall not expel a refugee lawfully in their territory save on grounds of national security or public order." The category of "refugee crewman" is an invention of plaintiff in an attempt to incorporate the Protocol into the operation of § 203(a)(7) and thereby circumvent the exclusion of alien crewmen. As I have previously stated, I conclude on the basis of analysis expressed in Pierre v. United States, 547 F.2d at 1287-88, that the Protocol does not amend or alter the existing statutory immigration scheme and thus I reject the notion that a finding that the plaintiff is a "refugee crewman" would affect his § 203(a)(7) application.
The Third Circuit clearly held in Wong Pak Yan v. Rinaldi, 429 F.2d 151 (3d Cir.), Cert. denied, 400 U.S. 902, 91 S. Ct. 140, 27 L. Ed. 2d 139 (1970), that the INS regulation 8 C.F.R. § 245.4, which requires that the restrictions contained in § 245 govern the adjustment of status provided for in the proviso to § 203(a)(7), was valid and consistent with the legislative history of § 203(a)(7). Since plaintiffs in Yan were alien crewmen the court concluded they could not have their status adjusted under § 203(a)(7). Plaintiff here suggests that he can be distinguished from the applicants in Yan because at the time of his application plaintiff was lawfully within the United States whereas the plaintiffs in Yan were not lawfully entitled to remain in this country. This factual distinction has no legal consequence, however, because it is plaintiff's status as an alien who Entered the country as a crewman, rather than the legality of the continued residence in the United States, which required the denial of his applications. The holding in Yan mandates the defendant to deny the application for adjustment of status once it was determined that the applicant entered the country as an alien crewman.
Plaintiff's final argument is that even if he is ineligible for adjustment of status, he should be granted the preference classification contained in the proviso to § 203(a)(7). Yan also requires that this argument be rejected. The court in Yan stated:
"We think it is apparent from the language of section 203(a)(7) that its purposes are solely two (1) to make conditional entries available to refugees who apply for them in certain foreign countries, and (2) to authorize the issuance of immigration visas "in lieu of conditional entries of a like number' to refugees who have previously been admitted to the United States on conditional entries, who have been continuously present here for two years and Whose status has been adjusted to that of an alien lawfully admitted for permanent residence. We must look elsewhere for the statutory authority to make such an adjustment of a refugee's status as will entitle him to an immigration visa under the proviso to section 203(a)(7) in lieu of his conditional entry. This authority is provided by section 245 of the Act." 429 F.2d at 154 (emphasis added).