BURCIAGA-SALCEDO

11 I. & N. Dec. 665

• Court: Board of Immigration Appeals
• Decided: July 1, 1966
• Docket: 1601
• Status: Published

Opinion

Interim..Decisioti #1601.

• Manx& o>= Bunoraof.-SALonno In Exclusion Proceedings A-12699434• Rea/46d by Board May 81, 20619 The absence from the United States of applicant (a returning resident "com- muter") for more than 6 months to care for her seriously-ill child, which may be egualea with absence as a result or inoaPacitation by her own Ill- ness, did not result in loss of "commuter" status; although her job was fMed by another worker 'during her absence, since she-resumed employment in this country within a short time after abatement of the circumstances causing her absence, she is admissible as a returning resident alien "com- muter" to continue her employment • Brotrinairx: Act of 1052—Section P 212(a) (20) ES U.B.C. 1182(a) (20)3—Im- , migrant without, a visa.

The special inquiry officer certified to the Board his order requir- ing -applicant's' eidusion 'upon the ground that she was an immigrant without a visa. The applicant will be ordered admitted. ,An alien lawfully admitted for permanent residence and who is regularly employed in the United States but-resides in foreign con- tiguous territory is known as a. commuter (Matter of Bailey, Int. Dec. No. 1546). " Some background for the commuter stews" will help determine the caie'before us. For generations 'prior to the Immigration. Act of 1924, native and foreign-born citizens of foreign contiguous territory living there came daily to work in the United States and then returned to their homes. Immediately 'before the passage of the Immigration Act of 1924, they hid been admitted as visitors on the basis of visitor's visas which were valid fora year and were good for Successive appli- cations for temporary admission. Passage of thee• 1924 Act raised a question as to whether a commuter was an immigrant rather than a visitor. The Aet termed an alien an immigrant unless lie proved he was a nonimmigrant. (An immigrant needed: an immigrant visa it was good for one entry only and could be issued only under re- strictions not applicable to the issuance of .nonimmigrant visas.) 665' Interim Decision #1601 The nonimmigrant category pertinent to this discussion was that of the alien coming as a temporary visitor for "business". In this cate- gory the commuter was administratively first placed; permitting him to follow his regular employment in the United States and reside in foreign contiguous territory. Reluctance to disturb a long-standing custom, and reluctance to affect the delicate balance which existed between the United States and the contiguous countries dictated the decision. However, the pressure of other factors soon brought a change—there was a lack of specific law authorizing the_ entry of commuters as nonimmigrants, foreign-born citizens of contiguous territories who because of quota limitations could not obtain immi- grant visas to enter the United. States were, nevertheless, entering daily to work as commuters, and, there was rising unemployment in the United States—these factors gave rise to an administrative ruling that made the entry of commuters more difficult. In 1927, it was administratively decided that under the 1021 Act an alien coming to work in the United States must be considered as an immigrant. (He could be admitted only if he had an immigrant visa and applied for admission' for permanent residence.) Strict enforcement of this ruling would have seriously affected the liveli- hood of many on both sides of the border, the functioning of border cities, and the existence of friendly relations with the border nations. A compromise arose which followed the form of the law yet permit- ted a limited continuance of the commuter status.• It was to treat the commuter who obtained an immigrant visa as if lie lived in the Unitrid States although he continued to live in the contiguous ter- ritory. An alien lawfully admitted for permanent residence and domiciled in the United States.could be issued a border crossing card which' authdrizad'him to mike a temporary visit to foreign contiguous ter- ritory and to return to his home in the United States without pre- senting a_ new visa or other immigration document; therefore, why not require the commuter to obtain an immigrant visa, admit him for permanent residence, issue him a border crossing card, and then per- mit bim,.i.f.he did not desire to live in the United States, to return to his home in foreign contiguous territory and to enter the United States daily on his border crossing card on the theory that he was returning from a •temporary visit to contiguous territory) This arrangement 'was adopted in 1927. There. *ere difficulties in treating a commuter as if he was a dom- iciled alien.. The alien- actually domiciled in the United States at- tempting to enter as a returning resident with a border crossing card after a temporary visit outside the United States lost his right to 666 Interim Decision #1601 reenter unless he established that he at allAimes maintained the intention 4 returning to his domicile in the 'United States. The commuter did not have a domicile in tharnited States and in many cases had no intention of moving here, was he therefore to be unre- stricted in his right to reenter/ The administrative solution was to equate employment with domicile. Then whether the commuter was entitled to enter with his border crossing card as a returning resident turned nn whether he was employed in the United States and whether he had ever abandoned the intention- of working in the United States. This equality of treatment of the commuter and domiciled alien resulted in the ruling that since the domiciled alien lost his right to reenter the United States on a border crossing

of the following month the child seemed to recover and the applicant went back to work. A few days later the child became seriously The applicant stopped working to care for the child, there being no one else available. Her job was filled by another worker. The child, afflicted, with bronchitis and later with hepatitis, was not free from her afflictions until 'September 1965. In the following month, feel- - ing that the child could be left in the care of others, the applicant sought employment in the United States.. On DeceMber 14 1 1965 she staffed working with Mrs. Allen ana thereafter came in daily to employment as a doinestic. On December 22, 1965, she applied to enter to work for Mrs. Allen, but was refused ,permission, by the Service. On December 28, 1965, the special inquiry officer ruled in an exclusion hearing that the applicant had lost her status as a com- muter because she had been unemployed for more than six months.- He held that the exception which saved the commuter status of an alien unemployed because of illness did not .apply to the applicant because, one, it had not been her own illness that incapacitated her for:employment and, two, her employment had not been held open' for her during the entire period that she had been unemployed. The earliest published discussion touching the problem is. found in an editor's note to Matter of 1)—C- 8 I. & N. Dec. 519, 526 7 -

(1949). The pertinent portion of the. note follows: In Matter of 4-6778564, 0 0., Dec. 21, 1949, the Central Office stated: "It is and has been the holding of this Service that an alien of the im- migrant commuter ahem who has been out nf.employment in the United States for 6 'months shall, notwithstanding temporary entries in the interim for other than employment purposes, be deemed-, to have abandoned his status of resi- dence in the United States (C. I. 110.6). It has been held, however, that 'In-' tention'shall govern in such cases to the same extent that it governs in the case of aliens who deiSart fiom the United States for other countries after once havhig,been lawfully admitted' (O. 0. letter Nov. 16, 1927, 55470/637-A). 1 latile circumstances as serious ill- Thus,interpofwkd•uta.nciol ness (Matter of B—, A-4089813 (0. a. June 26, 1946)), or because of preg- nancy (-Matter of Mal—, 4-7687230 (0. 0. Sept 8,1948)), have been held•not, to result in akandonment of" commuter's status. " ."In the• case nndei consideration, the appellant was not employed in the United States since September 27, 1948, when he broke his arm, until August ,4, 1849, when be took up temporary employment In the United States with -his ' • • •, • . 'The L (Operation Instruction or antra Service memorandum) and the O. 0. (Central Ofilde Of the Service). letter cited contain na additional perti- nent information.

668 Interim Decision #1601 brother. He has, however, presented corroborative evidence that he was in- capacitated during this period until march 0, 1949. Actually, thetefore, he was employable only for a period subsequent to that date and the 6-month period should begin to toll [sic] thereafter. Since be effected his admission to the United States on September 4, 1949, .a period less than 6 months, it is concluded that he liar not thereby lost or abandoned his commuter% status. As be is in possession of a valid border-crossing identification card his appeal will be sustained." Matter of B , suprci, concerned a Canadian citizen who commuted —

from 1920 to September 24, 1945 when he became ill; he was bed-. ridden for about six months. Over seven months later (May 12, 1946) he applied for admission. as a commuter for the purpose of resuming his employment. The Service relying on the two rules gov- erning the cases of commuters (that a commuter out of employment for six months, shall be deemed to have abandoned his status of resi- dence in the United States and that intention governs to the same ex- tent that it .governs in the case of domiciled aliens who depart for other countries) held: ' * • * It is apparent, then, that when the appellant took ill in September 1045, nu did not lose his job with the Pere Marquette Railroad Company. Having been granted."sick leave" [for the entire period of his illness], be has remained in the employment of his company And can' return to active em- ployment at any time within the limits of his leave of absence. Nor is there anything in the record to show that it was the appellant's intention to abandon ,

his employment or his status as a commuter. Having been employed by the same company for over 25 years, it is not' likely that he intended M make a change. In fact, he testified that he•was kept from his employmept solely be- cause of his illness. Upon a review of all the evidence in this case, -it may be fairly • concluded that, despite his physical absence from his emploment, the appellant did not lose his _ commuter's statute and that he is eligible to resume the same. Matter of MoM—, supra, concerned a Canadian citizen who was a commuter from April 5, 1946 to about November 7, 1947 when she stopped wailing because she was expecting the birth of a child. The alien applied for admission on May 20, 1948 as a returning resident to work; she was excluded on the ground she had.lost her commuter status and required a new visa to enter the United States. On appeal, the Service ordered her admitted as a returning resident if she ob- tained a 'waiver of docunientary requirements. The Service stated: The facts presented establish that the appellant has not worked in the United States since November. 7, 1947, a period of more then six months, dur- ing which time she has lived in Canada. However, the facts show that she gave birth to a child on December 14, 1947 and has been receiving medical attention for herself and child and could not resume employment although, at all times, it appears she intended to return to the United States and resume employment. In the situation; it is found-that the appellant did not abandon hey legal residence in the -United States by her absence of more than six 669 Interim Decision #1601 months in Canada from November 1947 to about April or May 1949, as her absences were due to her illness and the care of her infant child. Matter of Williams, A-4235728 (C.O. 1947) ; Matter of lames, A-6388053 (BIA, 1947).' . The next published decision touching upon the issues is Matter of 1—, 4 I. & IC. Dec. 454 (C. 0. 1951). 1, —, 'working for one em- ployer, commuted from 1927 to June 19, 1950 when he became ill;' he recovered on December 7, 1950 and when he applied for admission on December 26, 1950 to resume 'his employment was excluded as having lost his commuter status by being out of work for more than six months. On appeal the Service stated : * * • 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 nionths from this country and interruption of his work here for that long, if his employmentt job, or position has not been lost and if the ,

interruption 'was due to such =controllable circumstances as serious ill-. ness. * * * His position of employment has not been lost and according to evi- dence 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 stet* 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 aban- doned such status. His absence was due to uncontrollable circumstances and he is seeking to enter the United States as a returning resident to resume the employment which is available to him. The latest published decision is Matter of M—D—S- & 8 I. .h N. Dec. 200 (1958). 311 —D — S, a native and national of Canada, whose case was considered with two`other un- related cases, entering for permanent residence on November-26, 1957, returned to 'Cinada and for two weeks commuted daily to employ- ment in Detroit, Michigan. She stopped' working to be with her husband who was seriously ill; he passed away a few days later. She did not enter for the next nine months 'because she had lost the serv- ices of the housekeeper ,who cared for her child and was unable to

'Both opinions are very brief; neither discusses the law. In. Matter of Williams, the alien commuted to his work from 1923'to October 1046 when a heart attack confined him to his home in Canada. Be sought to reenter to resume employment on June 1•, 1947. During the entire period of his illness he was carried on sick leave. The Service without stating a reason found him to be a returning resident. In Matter of James, the alien •ommuted to employ- ment for live months to May 1040 then stopped for a reason not , 0110V711 but -

perhaps dim to her pregnancy since the *order authorizing admission in January 1947 as a returning resident states, "It appears that her husband - has now succeeded in finding living quarters in the United States. and the appellant intended to join him during January IAA after the -birth of her child."

670 - Interim Decision #1001 find another. A month, 'alter securing a housekeeper, she applied for admission to take employment with either her former employer or another individual, both having solicited her services. The clues- - tion then arose as to whether she was still a cominiiter. Making a. creneral review of the commuter situation, the Board citing Matter *of D—C—, supekpointed out (at pp. 212-3) that there is a tolling of the six-month period during the disablement of a commuter who had not lost his job. The Board distinguished the cases before it from Matter of L—, swpra,loy'pointing out that L— had not last his job and the aliens had. However, the Board did.not treat the aliens as disabled commuters biit in each case ordered the aliens ex- cluded on the ground that they had lost commuter statue beep,use they had been unemployed for more than six months. We answer in the affirmative the question as to whether the illness - of the applicant's child should excuse her absence from the United. States. In the one case discussing the situation it is shown that the illness of a child is an important factor. , In Matter of McM =,, supra, the applicant who had given birth in December but had not applied for admission until the followine, May was ordered admitted • as a commuter, although absent more than six months, on the finding that she had "been receiving medical attention for herself and child" and that her absence was "due to her illness and the care cf her in- fant child." (Emphasis supplied.) Indeed it is clear here that the long and dangerous illnesses of the applicant's child, her duty, and. her natural affection created a. situation which has effectively inca- pacitated her for employment as would have either a broken member in her own body or the carrying of the child in pregnancy .(see Mendelsohn v. Dulles., 207 F.2d 37 (D.C. Cir. 1953) ; Maher of M—, 5 I. & N. Dec. 598). The applicant should therefore be consideed as though she were an alien incapacitated by her own illness. We have seen that the rule as to the disabled commuter iithat in- tention governs to the same extent it does in the ease of a domiciled alien (Matter of F— footnote at pp. 526-7,,3 I. & N. Dec.). Since the test for the domiciled alien is.whether he intended to abandon domicile, the test for the employed commuter who becomes disabled is whether he intended to abandon his employment. Applicant's admission should be ordered. Within a, short time after the disabling•circumstances'which prevented her from continu- ing her employment were removed, she resumed employment in the °Ikea States. She now desires to enter to continue with her em- ployment. ORDER: It is ordered that the admission of the applicant as a commuter be authorized. .