« ÎnapoiContinuați »
certain designated groups described as nonimmigrants. Until April 1, 1927, they were permitted to enter as border crossers without having been admitted for permanent residence. However, on that date the policy was changed by the issuance of General Order No. 86, which provided that such aliens entering the United States subsequent to June 30, 1924, to engage in employment or to seek employment would not be considered as visitors for business or pleasure but as aliens of the immigrant class and granted them a reasonable period of time not to exceed 6 months from June 1, 1927, within which to obtain immigration visas if they had been enjoying the border-crossing privilege on April 1, 1927. The legality of General Order No. 86 was sustained in the case of Karnuth v. United States ex rel. Albro, 279 U.S. 231 (1929). Although General Order No. 86 was later cancelled, the rights accrued thereunder were not cancelled and subsequent regulations provided that alien commuters should be considered aliens of the immigrant class (former 8 CFR 110.6, previously paragraph 1, subdivision C of Rule 3, Immigration Laws and Rules of January 1, 1930). The adoption of the policy found in General Order No. 86 aroused controversy and apprehension along the Canadian and Mexican borders and fears that the means of livelihood of the commuter would be jeopardized if access to their jobs were shut. Representations on high diplomatic levels were made and out of these discussions there eventually emerged an amplification of our policy which permitted alien commuters to establish lawful admission into the United States for permanent residence, then furnished them with border-crossing identification cards and permitted them to cross international boundary en route to and from their employment (former 8 CFR 166). A memorandum from the Commissioner General (File 55499/537-A, November 16, 1927), in answer to questions raised by General Order No. 86, set forth the policy that an alien residing in foreign contiguous territory and enjoying the border-crossing privilege abandons such right when he discontinues his employment in the United States and does not renew same within a period of 6 months.
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, not withstanding 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
interruption of his work for that period, if his employment, job or position has not been lost and if the interruption was due to uncontrollable circumstances, such as serious illness, pregnancy, or a disabling injury, such as a broken arm, in which case the 6-month period tolls until the commuter is again employable.?
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-0
-0 5 I. & N. Dec. 718). 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 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 Selective Service regulations (32 CFR 611.13(a) (6), 611.13(b) (7), (1944)), because he did not reside in the United States for the required period of 3 months. On the other hand, an alien who has the status of a commuter must notify the Commissioner of his current address in compliance with section 35 of the Alien Registration Act of 1940, as amended, and regulations issued thereunder.
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
-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 25, 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 admission as an immigrant because he was not considered as a returning legal resident within the purview of section 4(b) of the Immigration Act of 1924. It is to be noted that in that case the applicant was not in fact a commuter because he had never been employed in this country and had not been employed for a period of more than 6 months prior to his application for admission with the border-crossing card. Thus, it would appear that a commuter is entitled to readmission as a returning resident, but that the primary consideration is that he maintain the status of a commuter. As a corollary requirement, he must also comply with the conditions controlling the use of border-crossing cards.
1 Matter of D-0
3 1. & N. Dec. 526, 527, Editor's note.
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 - 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.
MATTER OF D'0
In DEPORTATION Proceedings
Decided by Board December 17, 1958
Deportability-Exemption under section 7, Act of September 11, 1957—“Other
wise admissible” requirement not met where, apart from misrepresentation,
alien was not nonquota as specified in visa. Native of Italy who fraudulently obtained nonquota immigrant visa by posing
as native of Argentina is not entitled to exemption from deportability under first sentence of section 7, Act of September 11, 1957, since, apart from her misrepresentations, she was not "otherwise admissible" at time of entry in that she was not a nonquota immigrant as specified in her visa.
Warrant: Act of 1924—Visa invalid because procured by fraud.
Act of 1924—Quota immigrant, not in possession of quota im
migration visa. Act of 1917–Admits commission, prior to entry, of perjury and forgery.
BEFORE THE BOARD
Discussion: Respondent, a 50-year-old married female, is a native and national of Italy. Her only entry occurred in 1925 when she was admitted for permanent residence upon presentation of a nonquota immigrant visa. This visa was obtained upon the respondent's representation that she was one A—G-D—, a
-G -Dnative of Argentina. The history of the proceedings has been recited by the special inquiry officer and need not be repeated.
The special inquiry officer decided that the respondent's deportation could not be terminated under the provisions of the first sentence of section 7 of Public Law 85–316, Act of September 11, 1957. We agree with the special inquiry officer in this conclusion although our reasoning differs from his. If the existence of the misrepresentation is disregarded, the fact remains that respondent had been ineligible to enter the United States because she was not a nonquota immigrant as the law required her to be if she attempted to enter with a nonquota visa. Section 7 excuses the presence of fraud. It does not wipe out the existence of all other grounds of inadmissibility which may have been present. Section 7 also excuses the fact that an alien had been charged to the wrong quota. This was meant to take care of the refugees such as those who had stated that they were born elsewhere than in Russia in order to avoid repatriation to Russia, and had thus been charged to the quota of the country where they had falsely claimed birth. There is nothing in the history of the legislation which indicates that it was the intention of Congress to remove the careful protection which had been built into the immigration laws regarding quotas. To come within the provisions of that portion of section 7 relating to a charge to the wrong quota, such charge must be the very one involved in the alien's case.
It follows from what we have said that the first sentence of section 7 does not require termination of this proceeding.
Deportation proceedings cannot be terminated under the provisions of the first part of section 7 of Public Law 85-316. However, the respondent appears eligible for relief under the provisions of the last sentence of section 7 and under the provisions of section 5 of Public Law 85–316. The special inquiry officer is of the opinion that the respondent may prosecute an application for such relief outside the United States or in preexamination proceedings.
Order: It is ordered that the decision of the special inquiry officer be approved.