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During this period, the applicant resided and worked in Tucson for five days of the week and visited his family in Agua Prieta, Sonora, Mexico on intermittent weekends. He testified that on a majority of the weekends, he had to work or help his brother who resides in Tucson, and would visit his family in Mexico biweekly. He further testified that he was always admitted as a returning resident alien on the occasion of his periodic returns from Agua Prieta, Mexico to Tucson, Arizona until his application for admission on March 2, 1970.

The applicant's excludability under section 212 (a) (9) as a criminal alien depends upon whether he was seeking to make an entry on March 2, 1970 within the purview of section 101 (a) (13) of the Immigration and Nationality Act when he returned from Mexico after visiting his family over the weekend. The question of whether the applicant was seeking to make an entry on this occasion depends in turn on whether, during the weekend prior to March 2, 1970, he made a "meaningful departure" to Mexico as contemplated by the Supreme Court's interpretation of the quoted term in the case of Rosenberg v. Fleuti, supra. If the applicant had acquired the status of a commuter alien, then his departure to his home in Mexico on the weekend preceding March 2, 1970 was a "meaningful departure" and, therefore, his return to the United States on March 2, 1970, when he applied for admission at Douglas, Arizona as a returning resident alien, would constitute an entry, Gooch v. Clark, supra footnote 1; Cermeno-Cerna v. Farrell, supra footnote 1 at p. 529; Matter of Estrada-Pena, supra footnote 1.

The special inquiry officer concludes that the applicant did not acquire the status of a "commuter" during the period of August 1969-March 1970 when he resided and worked in Tucson Arizona from Monday to Saturday of each week, usually departing to Mexico for biweekly visits with his family and occasionally departing for intervening weekends. The special inquiry officer in reaching this conclusion refers to a comment by the court in the case of Cermeno-Cerna v. Farrell, supra, footnote 1 at p. 529, which quotes counsel for the defendant Immigrant Service as stating that the "amiable fiction" of a commuter "is more re

2 Present statutory law requires commuter aliens residing abroad who have been admitted as immigrants for permanent residence to obtain reentry documents for every entry. The term "amiable fiction" refers to the fact that despite the statutory requirement they are now permitted to reenter upon presentation of their alien registration card (Form I-151) based upon the fiction that their presence in the United States while employed amounts to permanent residence in the United States.

cently being extended beyond border town employment to seasonal workers staying for longer periods of time." The special inquiry officer is of the opinion that this is a novel extension of the commuter concept which should be considered by the Board of Immigration Appeals. He certified the case for this purpose.

An immigrant alien who has been lawfully admitted for permanent residence may commence or continue to reside in foreign contiguous territory and commute to his United States place of employment. The authority for such an arrangement is derived from an administrative interpretation of section 211(b) of the Immigration and Nationality Act which provides in substance that returning resident immigrants may be readmitted without documentation in the discretion of the Attorney General and under such conditions as he may prescribe by regulations, Gooch v. Clark, supra footnote 1. There are two types of commuters, those who commute regularly, normally entering at least twice weekly, and those who enter to perform seasonal work for extended periods, but whose annual stay in the United States is for less than six months. The latter are referred to as "seasonal commuters" or "seasonal workers." The seasonal commuter must not be confused with the resident alien who has been physically present in the United States for more than six months in the aggregate during the past year. Such resident alien is not considered to be within the commuter category.

The applicant has been physically present in the United States for more than six months in the aggregate during the one year period immediately preceding his application for entry on March 2, 1970. He resided and was employed in the United States at Tucson, Arizona and Montebello, California from the time of his original entry for permanent residence on March 26, 1964 until he returned his family to Mexico in August of 1969. He returned to the United States within one week of this departure and has had continuous employment with a painting contractor in Tucson, Arizona up until he was detained for a hearing on March 2, 1970. During this period, he maintained a residence in Tucson, visiting his family intermittently on weekends (p. 2 of Ex. 5). Furthermore, there is no showing that the applicant was ever issued a commuter status card (Form 178). We affirm the conclusion reached by the special inquiry officer that the applicant did not acquire the status of a commuter prior to his departure from the United States on the weekend he visited his family in Mexico immediately preceding March 2, 1970.

We have reviewed the evidence relied upon by the special inquiry officer and affirm his conclusion that the applicant's departure on the weekend in question to visit his family in Mexico was an innocent, casual and brief excursion which was not disruptive of his resident alien status within the principle stated by the Supreme Court in Rosenberg v. Fleuti, supra. The applicant's marriage with his second wife, although bigamous on his part, has been a subsisting relationship since it was entered into on March 21, 1966. He has been supporting this wife, the child which is the issue of this marriage and a child born to his wife prior to her marriage to the applicant. The applicant's bigamous marriage did not break up a valid subsisting marriage as his former wife had left him to reside with another man.

The case is distinguishable from those cases 3 in which we have held that the departure of a lawful permanent resident alien amounts to a "meaningful departure" when the purpose of leaving the country was to accomplish some object which was itself contrary to some policy reflected in our immigration laws. The applicant testified that he was not aware that his second marriage, without prior divorce, amounted to bigamy under the laws of Mexico (p. 3 of Ex. 4).

Since the applicant was not making an entry on March 2, 1970, the issue of whether he is excludable as a criminal alien under section 212 (a) (9) of the Immigration and Nationality Act becomes moot. An appropriate order affirming the special inquiry officer's order will be entered.

ORDER: It is directed that the order entered by the special inquiry officer on July 6, 1970 providing for the alien's admisson as a returning resident alien be and the same is hereby affirmed.

3 Matter of Corral-Fragoso, 11 I. & N. Dec. 478 (BIA, 1966); Matter of Scherbank, 10 I. & N. Dec. 522 (BIA, 1964).

MATTER OF HERRERA

In Visa Petition Proceedings

A-19086022

Decided by Board September 13, 1971

(1) For the purpose of establishing U.S. citizenship in visa petition proceedings, petitioner's delayed Texas birth certificate, standing alone, does not amount to a "birth certificate" within the contemplation of 8 CFR 204.2(a)(1). Even though petitioner's delayed birth certificate may be treated as prima facie evidence of the facts it relates, those facts have been rebutted by contradictory documentary evidence in the form of the 1910 census record. Further, the delayed certificate was issued on the basis of affidavits of 2 persons, one of whom was only 3 years old at time of petitioner's alleged birth and therefore, unlikely to have personal knowledge of the facts of birth; the basis of knowledge of the other affiant is not reflected.

(2) Since the 2 baptismal records submitted by petitioner in support of his visa petition to accord his wife immediate relative status relate to a baptism which took place more than 2 months after birth, they do not satisfy the documentary requirement of 8 CFR 204.2(a) (1).

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The petitioner filed a petition to obtain immediate relative status for his spouse under section 201(b) of the Immigration and Nationality Act. The District Director denied the application in an order dated January 19, 1971 on the ground that the petitioner was not a United States citizen. The petitioner appealed from that order. This Board, in our order dated March 19, 1971, remanded the matter for the reception of additional evidence and to obtain translations of evidence already in the record.

After receiving additional evidence and securing the translations referred to, the District Director again denied the petition for the same reason as before. The District Director certified the matter to this Board pursuant to our order of March 19, 1971, in which we directed certification in the event the petition were denied, since we had made no ruling on the merits of the appeal. We will affirm the order of the District Director.

The petitioner, Mariano Herrera-Rendon, Jr., has submitted an immediate relative petition on behalf of his wife, whom he married on June 26, 1968. The validity of the marriage is not in issue. The beneficiary, a native and citizen of Mexico, is eligible for classification as an immediate relative, provided the petitioner is a citizen of the United States.

As evidence of United States citizenship the petitioner submitted a delayed Texas birth certificate. The main issue in this case is whether the delayed Texas birth certificate, along with the other evidence presented, supports the claim of birth in the United States.

The procedure for granting immediate relative status to a spouse is set forth in section 204 (a) of the Immigration and Nationality Act, which states: "The petition shall be in such form as the Attorney General may be regulations prescribe and shall contain such information and be supported by such documentary evidence as the Attorney General may require."

The implementing regulation, 8 CFR 204.2 (a), states that an immediate relative petition filed by a United States citizen whose citizenship is based upon birth in the United States must be accompanied by (a) his birth certificate, or (b) if his birth certificate is unobtainable, a copy of his baptismal certificate under seal of the church, showing his place of birth and a date of baptism occurring within two months after birth, or (c) if his birth or baptismal certificate cannot be obtained, affidavits of two United States citizens who have personal knowledge of his birth in the United States.

The petitioner submitted a delayed birth certificate showing birth in San Juan, Texas on June 8, 1910. This record of birth was filed February 21, 1955, 45 years after the birth. It was issued on the basis of affidavits executed by Guadalupe HerreraRendon and Maria de Jesus Cordova Garza. The record indicates that Guadalupe Herrera-Rendon, who is the older brother of the petitioner, was three years old at the time of petitioner's birth.

Contradicting the claim of birth in the United States is the record of the 1910 census for Cameron County, Texas, which lists the petitioner as six months old on April 15, 1910, and notes that he was born in Mexico.

The petitioner also submitted a baptismal certificate, apparently made from contemporaneous entries in the parochial archives of the Parish of Sanctuary, Matamoros, Mexico, showing his baptism on January 26, 1910. It indicated birth "in the ranch of 'San Juan' on the 8th day of November 1909..."

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