Marine. We have repeatedly held in cases arising under section 401 (j) of the Nationality Act of 1940 that this section should not operate to expatriate a citizen unless the evidence clearly shows that the citizen remained outside the United States for the primary purpose of escaping Military Service, (Matter of GM, A-6605457, May 15, 1947 (2, I. & N. Dec. 861); Matter of D- R- -, A-6489137, May 22, 1947; Matter of K- -S S- —, A-6661544, July 1, 1947). We are of the opinion that a similar interpretation should be followed in the case of an alien departing from the United States. The appellant testified that he had made inquiry about joining the American Merchant Marine but due to the fact that he was not an American citizen and had no experience, this service was closed to him. He further testified that his only hope was to join the Canadian Merchant Marine and to make that possible he would have to move to Canada. He further stated that since he was residing unlawfully in the United States and being a Canadian citizen his return to Canada was necessary in order to correct his status as otherwise he would be subject to deportation. He testified that he reached this decision "possibly a year and possibly a little more" prior to his departure in November 1951. Evidence of record establishes that the appellant informed his local draft board concerning his departure and forwarded his address in Canada to them. He was ordered on March 5, 1951, to report for examination on March 15, 1951. There is also a showing that the appellant discussed his case with the Canadian consul who advised him that under the circumstances he would be placed in an inactive category (4 (c) classification) in accordance with Selective Service regulations. Since the evidence established that persons in the age group of the appellant were not reached for call to service until March 1951, 4 months after the date of his departure it does not follow that the facts of the case reasonably give rise to the inference that the appellant was motivated by a desire to escape military service when he departed. We think a preponderance of the evidence shows that the appellant departed for Canada for the primary purpose of establishing his eligibility to join the Canadian Merchant Marine and to correct his immigration status in order that he may return to the United States on Canadian vessels as a seaman. The ground of inadmissibility is not sustained by the evidence of record. Order: It is directed that the appeal be and the same is hereby sustained. IN THE MATTER OF L In EXCLUSION Proceedings A-4274611 Decided by Central Office August 16, 1951 Commuters-Immigrants, working here (but not living here)-8 C. F. R. 110.6 and 8 C. F. R. 166.1-When immigrant status forfeited. An alien, who worked in the United States after lawful admission for permanent residence, but commuted to his home in Canada, enjoyed for immigration purposes all the privileges of one lawfully admitted for permanent residence; nor did he forfeit his status as a legal "resident" here by being out of employment for over 6 months, since the evidence establishes that his job here had not been lost, he intended to return to his job here, and his employment was interrupted by reason of circumstances beyond his control (here illness with hospital confinement for 5 months). EXCLUDED BY BOARD OF SPECIAL INQUIRY: Act of 1917-One or more attacks of insanity. Act of 1918-No passport. BEFORE THE CENTRAL OFFICE Discussion: The record relates to a 60-year-old male, native and citizen of Canada, who applied for admission into the United States at Detroit, Mich., on December 26, 1950, and was held for examination before a board of special inquiry which, at the conclusion of the hearing on March 13, 1951, held him to be inadmissible on the grounds shown above. He has appealed from such decision. The record discloses that applicant was lawfully admitted to the United States for permanent residence at Detroit, Mich., on October 5, 1927, and that he was in possession of an immigration visa issued pursuant to the provisions of section 4 (c) of the Immigration Act of 1924. He was admitted under General Order 86 to commute to work only. From the summer of 1925 the applicant was engaged in employment in the United States at Detroit, Mich., and was employed by one firm until June 19, 1950. He commuted daily to work in this country from his place of residence in Canada where he resides with his wife and two children and the last resident alien's border crossing identification card issued to him expired November 1, 1950. From June 19, 1950, he was absent from his employment because of illness. and was confined in a hospital in Canada for approximately 5 months from July 14, 1950, to December 7, 1950. His illness was diagnosed as involutional melancholia. A medical certificate issued by a physician of the Public Health Service on January 18, 1951, states that the term "involutional melancholia" is a form of insanity and that as of the date of the examination of applicant there was no sign of mental deficiency. Applicant now seeks entry into the United States to resume his employment. Applicant is an alien belonging to that class known as commuters; namely, persons who have their place of residence in foreign contiguous territory and commute daily to the United States to work. It has always been a policy of this Service to permit Canadian residents to enter the United States to work here. Prior to April 1, 1927, they were permitted to enter as border crossers without having been admitted for permanent residence. As of that date the policy changed by the issuance of General Order 86. In brief the General Order provided that aliens entering the United States subsequent to June 30, 1924, to engage in existing employment or to seek employment would not be considered as visitors for business or pleasure but as aliens of the "immigrant" class; but that if enjoying the border crossing privilege on April 1, 1927, they would be granted a reasonable period of time not to exceed 6 months from June 1, 1927, within which to obtain immigration visas. After being admitted with visas they were to be considered as residents of the United States for the purposes of the immigration laws. Exceptions to the requirement of obtaining immigration visas were made in favor of aliens who had enjoyed the border crossing privilege prior to July 1, 1924, and were still enjoying that privilege on April 1, 1927, provided that at the time they began crossing the border they could have been admitted under the first quota law for permanent residence or that their border crossing began before there were any quota restrictions, but that payment of head tax would be required in cases where at the time of the original admission as border crossers, head tax was assessable on aliens entering for permanent admission. Upon payment of head tax, aliens, within this exception, were regarded as having been admitted for permanent residence as of the date of their original admission. The legality of General Order 86 was challenged by some of the aliens involved, but the Supreme Court in the case of Karnuth et al. v. United States on petition of Albro for Cook et al. (1929) 279 U. S. 231 sustained the Government's contention that aliens coming to this country for employment cannot be considered visitors for business. The General Order, and its supplements are no longer in effect, inasmuch as General Order 86 was canceled on October 2, 1930, by General Order 164. However, the rights accrued thereunder were not canceled. The present regulations provide that alien commuters will be considered as aliens of the immigrant class (8 C. F. R. 110.6, formerly paragraph 1, subdivision C of rule 3, Immigration Laws and Rules of January 1, 1930). Alien commuters who are or have been admitted to the United States for permanent residence, enjoy for immigration purposes all the privileges of one lawfully admitted for permanent residence, including the issuance of Resident Alien's Border Crossing Card. (8 C. F. R. 166.1.)* However, 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 abandon 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. The salient points to be considered in determining abandonment of commuter's status are intention and loss of employment. Thus it has been held that a commuter remains entitled to such classification, notwithstanding an absence of 6 months from this country and interruption of his work here for that long, if his employment, job, or position has not been lost and if the interruption was due to such uncontrollable circumstances as serious illness. The record in the instant case establishes that applicant obtained the status of a permanent resident by his admission into the United States at Detroit, Mich., on October 5, 1927, in possession of an immigration visa issued pursuant to the provisions of section 4 (c) of the Immigration Act of 1924. From the time of that admission until sometime in June 1950, he commuted daily from Canada to his place of employment in the United States and thereafter was absent from this country because of his illness. His position of employment has not been lost and according to evidence submitted his job is still being held open for him. His absence from this country from June 1950 was due to his serious illness and there was no intention on his part to abandon his commuter's status. The record therefore establishes that applicant has had the status of a permanent resident of the United States for at least seven consecutive years and that he has not abandoned such status. His absence was due to uncontrollable cir *Editor's note.-In the unreported Matter of F, A-6300563, Board of Immigration Appeals, December 30, 1946, approved by Attorney General January 3, 1947, the Board of Immigration Appeals notes the following: "Our policy regarding Commuters may be considered part of reciprocal arrangements with Canada and Mexico." The Board of Immigration Appeals went on to cite some statistics as to United States citizens and legal residents here, commuting to work in Canada or Mexico, as well as those commuting to work here but living there. cumstances and he is seeking to enter the United States as a returning resident to resume the employment which is available to him. He does not appear to have any criminal record and witnesses have testified that he is a person of good moral character. Neighborhood investigation has been favorable. Inquiry has failed to disclose that he has had any connection with subversive groups. Applicant has therefore established that he has been a person of good moral character for at least the preceding 5 years. His eligibility for discretionary relief under the 7th proviso to section 3 of the Immigration Act of 1917 has been established. On the record he is entitled to such relief. It is therefore concluded that the discretion contained in the 7th proviso to section 3 of the Immigration Act of 1917 will be exercised to cover applicant's inadmissibility to the United States on the ground that he has had one or more prior attacks of insanity. Furthermore he will be readmitted to the United States as a legal returning resident alien pursuant to the provisions of section 13 (b) of the Immigration Act of 1924, conditioned on a waiver of documentary requirements by the Secretary of State. In view of the foregoing, his appeal will be sustained. Order: It is ordered that the appeal be sustained and the alien's admission authorized as a returning resident under the provisions of section 13 (b) of the Immigration Act of 1924, conditioned upon the Secretary of State granting a waiver of the documentary require ments. It is further ordered that the alien's readmission be authorized from time to time over a period of one year from the date of this order, pursuant to the authority contained in the 7th proviso to section 3 of the Immigration Act of 1917 notwithstanding his inadmissibility as one who has had one or more prior attacks of insanity, if otherwise admissible. |