MATTER OF M—D—S— & L—G— & W—D—C—
In EXCLUSION Proceedings
A-11135619 A-11132260 A-10367389
Decided by Board December 12, 1958
Regulation authorizing use of Form I-151 as reentry document for resident alien who has been absent from United States for period not exceeding one year does not cause any change in long-standing rule relating to commuters. Loss of commuter status occurs, as before, when the alien has been out of employment in the United States for more than 6 months. (Cf. Matter of L—, 4 I. & N. Dec. 454, and Matter of H—O—, 5 I. & N. Dec. 716.)
EXCLUDABLE:
BEFORE THE BOARD
Discussion: The cases come forward on appeal from the District Directors at Detroit, Michigan, and at Buffalo, New York, from decisions rendered by two special inquiry officers on September 12, 1958, September 29, 1958, and October 6, 1958, directing that the applicants be admitted as Canadian resident commuters. The cases have been combined inasmuch as they involve a common set of facts and point of law.
The first case involves a native and national of Canada, 51 years old, widow, female, who was admitted to the United States for permanent residence at Detroit, Michigan, on November 26, 1957, upon presentation of a nonquota immigrant visa. Her status was adjusted on the date of her admission to that of the Canadian resident commuter and she has always maintained her residence in Riverside, Ontario, Canada. She commuted daily to Detroit, Michigan, where she was employed as a saleswoman by a jewelry firm until December 10, 1957, but has not been employed since that date. She testified that she stopped working on December 10, 1957, in order to be with her husband, then seriously ill, who passed away a
The second case concerns a native and national of Canada, 26 years old, married, male, who was admitted to the United States for permanent residence on November 18, 1957, upon presentation of a nonquota immigrant visa. His status was adjusted immediately after admission to that of a Canadian resident commuter upon a showing that he was returning to his residence in Windsor, Ontario, Canada, and was destined to employment as a salesman for a department store in Detroit, Michigan. He was laid off on December 28, 1957, and since that date has made constant and almost continuous efforts to find other employment in the United States without success. This appears to have been due to the widespread unemployment in Detroit since the spring of 1958. In the meantime he did odd jobs in Canada and availed himself of unemployment benefits to support his family. He has found that an opening may be available again with his former employer in the United States and seeks to reenter as a commuter despite the fact that he has not been employed for almost 9 months. He is in possession of an Alien Registration Receipt Card, Form I-151 (edition of September 11, 1956), which serves as a border-crossing identification card.
The third case relates to a native and national of Canada, 21 years old, married, male, who was admitted to the United States on September 10, 1957, as a nonquota immigrant. He retained residence in Canada and was employed in Buffalo, New York, from October 12, 1957, until March 14, 1958, as a production man for General Motors. At the time of his employment he obtained a Form I-151, Alien Registration Receipt Card, which serves as a resident alien‘s border-crossing card. During his employment he was recognized as a commuter. However, he was laid off on March 14, 1958, be-
The three cases have a common set of facts. In each case the alien was admitted for permanent residence upon presentation of a nonquota immigrant visa, their status was immediately adjusted to that of a commuter, they were employed in the United States while residing in Canada, and in each case the alien has been out of work for more than 6 months. It appears to be the Service contention that the so-called commuter category is available only if the person has not been unemployed in the United States for 6 months and that beyond that period they are no longer eligible for the commuter classification or for treatment as returning resident aliens. The special inquiry officer, however, has equated the status of the aliens with that of permanent resident aliens and in view of the extension of the period of validity of the Form I-151 to a period of one year, has concluded that the aliens are eligible to return in possession of Forms I-151 as returning residents.
The applicants belong to a class known as commuters, namely, aliens who are lawfully admitted for permanent residence but continue to retain their place of residence in foreign contiguous territory while commuting to their place of employment in this country. This anomalous class of immigrants known as “commuter” is fully treated in Matter of L—, 4 I. & N. Dec. 454. After the enactment of the
In numerous cities along the international boundary lines to the north and to the south of the United States live many aliens who each day journey to their jobs on the American side of the border and at the end of the same day usually return to their homes on the other side of the frontier. At the same time there exists a somewhat smaller daily movement of Americans to and from jobs in Canada and Mexico. This flow of aliens across the frontier posed no administrative difficulty until the passage of the Immigration Act of 1924 which laid down universal rules for documentation and classified all arriving aliens as immigrants unless they fell into
Thus, it has been held that an alien of the immigrant commuter class who has been out of employment in the United States for 6 months is, notwithstanding temporary entries in the meanwhile for other than employment purposes, deemed to have abandoned his status of a permanent resident in the United States and thereafter, if he seeks to reenter, is not admissible without again qualifying for admission as a permanent resident (Matter of L—, 4 I. & N. Dec. 456). The salient points to be considered in determining abandonment of commuter status are intention and loss of employment. It has been held that a commuter remains entitled to such classification, notwithstanding an absence of 6 months from this country and
A commuter who has been legally admitted as an immigrant is entitled to receive a border-crossing identification card so long as he continues in the status of a commuter (Matter of H—O—, 5 I. & N. Dec. 716). The commuter situation manifestly does not fit into any precise category found in the immigration statutes. The status is an artificial one, predicated upon good international relations maintained and cherished between friendly neighbors. As examples of the anomalous situation of the commuter, he cannot claim naturalization benefits since the naturalization statute by definition equates residence with domicile rather than an assimilated status (Petition of Wright, 42 F. Supp. 306; In re Barron, 26 F.2d 106 (1928); Petition of Correa, 79 F. Supp. 265 (1948)). It has also been held that a commuter is not a resident of the United States under the
However, as part and parcel of this policy has been the holding that the commuter who has been out of employment in the United States for 6 months is, notwithstanding temporary entries in the meanwhile for other than employment purposes, deemed to have abandoned his status of a permanent resident in the United States and thereafter, if he seeks to reenter, is not admissible without again qualifying for admission as a permanent resident. Thus, in Matter of D—C—, 3 I. & N. Dec. 519 (1949), the alien, a native and citizen of Canada, was admitted to the United States for permanent residence on May 23, 1948, and on the same date was issued a resident alien‘s border-crossing identification card, the validity of which expired on May 22, 1949. He returned to Canada on the same date of his admission and had no intention of residing here and never had employment here but merely made several temporary visits always with the intention of returning to his home in Canada. On December 13, 1948, during the period of validity of his resident alien‘s border-crossing identification card, he sought to enter for the purpose of seeking employment. His possession of the unexpired resident alien‘s border-crossing card did not avail him when seeking
In the instant cases, the applicants had been employed in the United States for periods of approximately 2 weeks, 5 weeks and 5 months, respectively. Their jobs were then terminated. Since that time all of the applicants have been employable for more than 6 months but have been unable to obtain work in the United States during that period. At least one has done odd jobs in Canada and two have no assurance of resuming their jobs.
The circumstances presented here differ from those in Matter of L—, 4 I. & N. Dec. 454. There the applicant had been steadily employed in the United States by one firm for 25 years, was disabled by illness for 5 months and sought entry into the United States 6 months and 1 week after he was absent from his job to resume his employment. In view of the fact that there was no evident intention to abandon commuter status, that he had never lost his job which was being held open and was available to him during the period of his absence, that the illness tolled the 6-month period until he was again employable, he was admitted as a returning resident. In the cases before us, it is evident that the previous employment in the United States had been lost and were not available during the 6 months or more of unemployment. Under the historical policy set out above, they are no longer to be regarded as possessing the status of commuters and the fact that their resident alien‘s border-crossing card or its substitute, the Alien Registration Receipt Card, Form I-151, may still be valid does not avail the applicants inasmuch as they are not eligible for the commuter status. The appeals of the district directors will be sustained and exclusion will be ordered.
Order: It is ordered that the appeals of the district directors from the decisions of the special inquiry officers be sustained and that the aliens be excluded on the documentary grounds set forth in the caption.