Interim Decision #2078 

MATTER OF WIGHTON 

In Exclusion Proceedings 

A-11157823 

Decided by Board September 4, 1970 and March 19, 1971 

A native and citizen of Canada who was admitted to the United States for 

permanent residence in 1959 but who lived in Canada and commuted daily 

to the United States to work until he voluntarily terminated his employment in November 1968, after which he obtained a job in Canada for approximately a year, lost his commuter status because of a break in his 

United States employment of more than 6 months, notwithstanding entries 

into this country in the interim and his allegation that he had no intention of abandoning his pelmanent resident status in the United States. 

EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182 ( a) (20) ]—Immigrant without valid immigrant visa. 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

David I. Rosin, Esquire Adolph F. Angelilli 

2156 Penobscot Building Trial Attorney 

Detroit, Michigan 48226 (Brief filed) 

(Brief filed) R. A. Vielhaber 

Appellate Trial Attorney 

BEFORE THE BOARD 

(September 4, 1970) 

This is an appeal from the decision of the special inquiry 

officer who ordered that the applicant be excluded and deported 

from the United States. The applicant applied for admission to 

the United States at Detroit, Michigan on November 20, 1969 as 

a returning resident alien and presented an alien registration receipt card (Form 1-151) which had been issued to him when he 

first entered the United States as an immigrant on August 12, 

1959. He was excluded and deported pursuant to section 

212(a) (20) of the Immigration and Nationality Act, as an immigrant not in possession of a valid unexpired immigrant visa or 

other valid entry document as required by section 211 (a) of the 

Act. 

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Interim Decision #2078 

The applicant is a 37-year-old single male alien, a native and 

citizen of Canada. Shortly after entry as an immigrant in 1959 he 

obtained a job with the First Federal Savings and Loan Association of Detroit. He held this job until November 13, 1968, when 

he resigned. During that entire period of slightly more than nine 

years he actually resided in Canada and commuted to his job 

daily in Detroit. After leaving the United States in November of 

1968 he obtained a position with the Chrysler Corporation in 

Canada, in which job he stayed approximately a year. During 

that period of time he made several trips each month to the 

United States. On November 20, 1969, when he presented himself 

for admission to the United States as a returning resident alien, 

he was held for an exclusion hearing. The Service contended that 

he had abandoned his permanent resident status and thus he 

could not be admitted on the basis of his alien registration receipt 

card. The applicant's attempt to enter the United States as a returning resident alien occurred just two days less than one year 

from the time he went to Canada to work. 

It is not disputed that for the approximate nine years the applicant worked in the United States before going to Canada he 

was in a commuter status. He resided in Canada and not in the 

Jnited States. Counsel contends respondent did not lose his cornnuter status while living and working in Canada, and that he is 

!ntitled to return as a returning resident alien. The special inFuiry officer rejected this argument, and we will affirm his deciion. 

The special inquiry officer correctly held that after this resient commuter alien had not worked or lived in the United States 

Dr more than six months he was deemed to have abandoned his 

ermanent residence status, notwithstanding entries in the in-

!rim, as aforestated. 1Having forfeited his permanent residence 

atus he must now, pursuant to section 211 of the Immigration 

ld Nationality Act and 8 CFR 211.1 (a), present a valid unexred immigrant visa. Since he lost his resident status his alien 

gistration receipt card is not valid as an entry document and he 

n no longer be considered as a returning resident alien. 2 

The class of immigrant aliens known as commuters has been 

cognized since 1927. Their status has been fully treated in Mat1Matter of Bonanni, 11 I. & N. Dec. 791 (ETA, 1966); Matter of Bailey, 

I. & N. Dec. 466 (BIA, 1966); Matter of L—, 4 I. & N. Dec. 454 (MA, 

51) 

Matter of M—D—S-- & L—G— & W—D—C--, 8 I. & N. Dec. 209 

IA, 1958). 

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Interim Decision #2078 

ter of L—, supra, and Matter of M—D—S— & L—G— & WD—C—, supra. For the purpose of the immigration laws a commuter is considered as a resident of the United States and is entitled to readmission under section 211 (b) of the Act as a 

returning resident while he maintains this status. 3The immigration statutes make no mention of the commuter status; it is an 

administrative device originated on April 1, 1927 by the Commissioner General issuing General Order No. 86 to permit the continued entry of Canadian and Mexican nationals domiciled in their 

native lands who had for years been coming to the United States 

to work as nonimmigrants, but whose continued entry as nonimmigrants was made impossible by legislation which classed all 

persons coming to the United States to perform labor as immigrants. It is predicated upon good international relations maintained between friendly neighbors. Congressional approval of the 

commuter status is found in the fact that Congress has shown 

awareness of the status and has not criticized it, nor has it in immigration legislation (including the Immigration and Nationality 

Act of 1952) included commuters in its definition of nonimmigrants. 

To maintain the status of commuter, an alien must have regular employment in the United States, have a continued intention 

to come for such purpoese and have no break in employment in 

the United States for as long as six months.' An alien commuter 

who has been out of employment in the United States for six 

months is deemed to have abandoned his status of residence in 

the United States. 3 

An exception to the above rule occurs when the commuter's absence from the United States was due to illness, accident or pregnancy, in which event we have held that the six months conclusive presumption that residence has been abandoned is tolled 

until the alien is again employable. 6 

In the instant case the applicant voluntarily terminated his employment in the United States and immediately thereafter took 

another job with another corporation in Canada. He has testified 

that he had no intention of abandoning his permanent resident 

3Matter of H-0--, 5 I. & N. Dec. 716 (BIA, 1954). 

4 Matter of Bailey, supra; Matter of Bonamni, supra; Matter of L—, 8 I. 

& N. Dec. 643 (BIA, 1960) ; Matter of Gerhard, 12 I. & N. Dec. 556 (BIA, 

1967). 

5 Matter of Bailey, supra. 

6 Matter of Gerhard, supra; Matter of Burciaga-Salcedo, 11 I. & N. Dec. 

665 (BIA, 1966) ; Matter of M—D—S— & L—G-- & W—D—C—, supra; 

Matter of L—, 4 I. & N. Dec. 454 (BIA, 1951). 

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Interim Decision #2078 

status in the United States and that his taking the job in Canada 

was for the purpose of receiving further work experience ancl 

training with the hope that he could then transfer with the same 

corporation (the Chrysler Corporation) to a job in the United 

States, which, however, failed to materialize. His job with the 

savings and loan association in the United States was not held 

open for him, but they indicated that he would be subject to rehire if he should apply. To maintain the status of a commuter, 

the alien, previously admitted for permanent residence, must 

have regular employment in the United States, have a continuing 

intention to come for such purpose and have no break in employment for six months. Although the intent of the alien is one factor to be considered in determining whether he has retained his 

ommuter status, it is not the only criterion. In the instant case 

;he applicant has had a break in employment in the United States 

or almost one year, and we have consistently held that a break 

n employment for six months, with the several exceptions noted 

Lbove, constitutes an abandonment of permanent resident status.' 

L'ounsel's argument that intent alone is the factor which deternines this matter is not in accordance with our many previous 

ecisions. 

Counsel cites an unreported decision, Matter of Max Pilavin, 

,--11696184 (BIA, 1964), as upholding the applicant's position 

-tat he should be admitted to the United States as a returning 

?sident alien because of his intent. However, in Matter of Piyin, the alien, who had been in a commuter status, actually gave 

) his Canadian residence and moved to and lived in the United 

ates for a period of two weeks prior to taking a trip to Europe 

r approximately 11 months. In that case we held that he could 

admitted as a returning resident alien since he had given up 

3 commuter status and had established a residence in the 

cited States prior to going abroad. This distinguishes it from 

instant case. 

The applicant must now be regarded as a special immigrant 

thin the definition contained in section 101(a) (27) (A) of the 

migration and Nationality Act, and as such is required by seen 211 of the Act and 8 CFR 211.1 (a) to be in possession of a 

id unexpired immigrant visa. Since he has no such document 

is excludable under section 212(a) (20) of the Act. We affirm 

order of the special inquiry officer ordering that the applicant 

excluded and deported from the United States. 

Vatter of Bailey, supra, and cases cited therein. 

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Interim Decision #2078 

ORDER: It is ordered that the appeal be and the same is 

hereby dismissed. 

BEFORE THE BOARD 

(March 19, 1971) 

Counsel moves the Board to reconsider its decision of September 4, 1970, excluding applicant from entry into the United 

States as an immigrant without a valid immigrant visa. Counsel 

contends that the applicant occupies the status of a commuter 

and as such he should be admitted to the United States as a returning resident alien. 

The facts have been set forth in detail in our previous decision 

and need not be reiterated at this time. We held that the applicant, who had been admitted to the United States as a permanent 

resident but who lived in Canada and commuted daily to the 

United States to work, lost his commuter status because of a 

break in his United States employment for more than six months. 

We have consistently held that a break in employment for six 

months or more, with several exceptions, none of which applies 

to this applicant, constitutes abandonment of permanent resident 

status.? 

We have carefully reviewed counsel's brief and we find that the 

issues raised, the arguments made and the cases cited are substantially the same as those previously presented on the original 

appeal. Our prior decision is dispositive of the issues raised the 

instant motion and nothing has been adduced which wi,uld warrant-our receding from that decision. 

Accordingly, the motion will be denied. 

ORDER: It is ordered that the motion be and the same is 

hereby denied. 

In Matter of Jaurrieta, A-12700329, unreported (BIA, 1970), we declined 

to enlarge the exceptions beyond those laid down in previous decisions, 

namely, illness, accident or pregnancy. 

687