WEINDL

12 I. & N. Dec. 621

• Court: Board of Immigration Appeals
• Decided: July 1, 1968
• Docket: 1837
• Status: Published

Opinion

Interim Decision #1837

MATTER or Wurhmr. In Exclusion Proceedings A-14490989 Decided by Board February 10,1968 Applicant, (who was an alien in commuter status at the time of his departure from the United States to evade military service is upon application for admission subject to. and Inadmissible under, the provisions of section 212(a) (22) of the Immigration and Nationality Act. EzOLUDARtire. Ada 1852—Section 212(a) (22) [8 U.S.O. 1182(a) (22) ]—Departed from the United States to escape military service.

The special inquiry officer has certified his order excluding appli- cant on the ground stated in the caption. No change will be made in his order. The question is whether applicant left the United States to escape military service, and if so, whether the fact that he was then a com- muter takes him out of the provisions of section 212(a) (22) of the Act which make a draft evader inadmissible. We answer the first question in the affirmative, and the second in the negative. Applicant, a 26 year old single male, native and citizen of Austria., - -

admitted for permanent residence on March 22, 1965, took the status of a commuter on April 15, 1965. (He worked in the United. States but resided in Canada.) He registered for the draft in October 1965 and was classified I—A. The company by which the applicant was em- ployed as a lathe hand obtained a deferment for him as a skilled worker (H A). The deferment expired on December 81, 1966. An attempt by the employer, involving an appeal, to obtain a continua- tion of the deferment was unsuccessful. On June 20, 1967 applicant was returned to the I—A classification. On August 10, 1967, he obtained em- ployment in Canada and on the same day appeared before the Service and stated he was abandoning his commuter status. He had not been notified to report for induction before he left. On December 26, 1967, applicant asked to enter as a visitor for the day. Applicant's testimony is that although he had no objection to serv- ice, he did not wish to serve while the action in Vietnam was in prog- ress and that he left the United States both because he did not wish to

621 Interim Decision #1837 be drafted and because he desired to go to school. (He could not go to school in the United States because of his working hours and the amount of overtime he was required to work.) He also stated that he would like to return to the United States for permanent residence after the conflict in Vietnam is over. In the United States, applicant was making about WO a week; in Canada, doing the same work, he receives about half of this amount. He did not enter school in Canada. The special inquiry officer found that the applicant abandoned resi- dence in the United States priinarily because of his desire to avoid service in the armed forces. We believe the record amply supports this conclusion. The fact that applicant was in the commuter status when he de- parted does not make the provision of section 212(a) (22) of the Act inapplicable. The commuter status gives an alien the privilege of work- ing in the United States and residing in foreign contiguous territory. This is done by considering him a resident of the United States. We see no reason why an alien, admitted for permanent residence and given the privilege of commuting, should be in a better situation as far as his obligations under Federal laws are involved than the alien ac- tually residing in the United States. -

We also find the applicant was not of a nonimmigrant class at the time of his -departure. He was in the United States in a commuter statusand such a person is an immigrant. ORDER: at is ordered that no change be made in the order of the special inquiry officer.