Interim Decision #1823 

MATTER OF GEHART) 

In Exclusion Proceedings 

A-14495411 

Decided by Board October 24,1967 

Appellant, an alien commuter, who because of unsuitable employment abandoned 

his job in this country after one week and due to the illness of his wife returned 

to Canada resuming his employment there, and who within 0 months after 

such departure reapplied for admission as a commuter destined to new employment more in keeping with his qualifications, is admissible as a returning resident alien commuter since he never intended to abandon his commuter status 

and at the time of his departure intended to return to the United States as soon 

as satisfactory employment was available. 

Exownssi.E: Act of 1952—Section 212(a) (20) [8 1182(a) (20)]—Immigrant not in possession of an immigrant visa or 

other valid entry document. 

Oiv Banns. OF SERVICE: Douglas P. Lillis, Appellate Trial Attorney 

The case comes forward pursuant to certification by the special 

inquiry officer of his order dated July 18, 1967 finding the applicant 

excludable on the ground stated in the caption. 

The record relates to a native of Yugoslavia, a naturalized citizen 

of Canada, 52 years old, married, male, who last arrived in the United 

States at Detroit, Michigan on July 12, 1967 and sought admission to 

this country to resume his status as a commuter. He had previously 

been admitted to the United States for permanent racidence at Detroit, 

Michigan on. April 17, 1967 and on the same date his status was adjusted to that of a commuter. Thereafter he was employed in the 

United States as an industrial blacksmith from April 17 to April 21, 

1967. He left that job because he -was not accustomed to the extreme 

heat from the furnaces and forges of •that position and returned to 

Canada. Another reason was because his wife was hospitalized for an 

operation for appendicitis. He resumed his former employment in Canada at the Windsor Tool and Die Company. He testified that his wife 

was hospitalized for a, period of about 10 days and that he did not wish 

to lose hisCanadian medical insurance. 

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Interim Decision #1828 

The applicant testified that he intended to return to the United 

States, provided he could obtain a job suitable to his qualifications 

and provided the work was at least as good as his job in Canada. The 

applicant testified that he had no intention of remaining in Canada 

permanently if he could find a job in the United States at least equal 

to his Canadian job or better (Ex. 4, p. 2; Tr. p. 24). He obtained 

employment with the Chrysler Corporation at Detroit, Michigan as 

a millwright on July 10, 1967 at a salary of $4.00 an hour compared 

to his salary of $2.80 an hour in Canada. It is noted that at the time 

he resumed his employment in the United States a period of approximately three months had elapsed since his previous United States 

Employment. Shortly after entering the United States in April 1967 

he had made a $1,000 down payment on a home in Detroit but abandoned the purchase of that home at a loss of pc* when his initial 

employment did not prove satisfactory. 

The commuter situation manifestly does not fit into any precise 

category found in the Immigration statutes. The status is not an 

official one but is recognized admistratively and is predicated upon 

good international relations maintained and cherished between 

friendly neighbors. The status of a commuter is an anomalous one. 

The commuter cannot claim 'naturalization benefits since the naturalization statute by definition equates residence with domicile rather 

than an assimilated status. 

The special inquiry officer concluded that the applicant had abandoned his status as a permanent resident accorded to him on April 17, 

1967 when he returned to Canada and that he therefore may not be 

found to be a bona-fide commuter. It is believed that the reliance of 

the special inquiry officer upon. United States ex rel AZther v. McCandless, 46 FM. 288 (3rd Cir. 1981), is misplaced. The court in that 

case was dealing with the question of whether an alien who leaves the 

United States with no definite intention, either of staying permanently 

or of returning, but merely planning to let future events determine 

his course, should still be regarded as a returning resident, and held 

against the alien in that case on the ground that there was no temporary 

visit abroad. 

However, the situation with regard to persons of the commuter 

class is distinguishable. As we have previously pointed out, the commuter, an alien lawfully admitted for permanent residence, but who 

resides abroad in a neighboring country, is in an unique situation. 

The salient points to b© considered in determining• abandonment of 

commuter status are intention and loss of employment for a period of 

more than six months. In the instant case there has been no loss of 

employment for more than six months and the sole question to be deter557 
Interim Decision #1923 

mined is whether the alien bad formed an intention to abandon his 

status. • 

In the instant case, the applicant abandoned his employment in the 

United States after one week because he was not accustomed to the 

heat of the job as an industrial blacksmith. The applicant's training 

and .qualilieations. were' those- of fr. toolmaker. Ile had taken the job 

as an industrial blacksmith because his qualifications for preference 

status certified under section 212(a) (14) of the Act also qualified 

him for such a job. The applicant returned to Canada also because 

of the emergency illness of his wife. He testified that when he left 

his employment in the United States and returned to Canada, it was 

not his intention to remain in Canada permanently if he could find 

suitable employment in the United States; that he resumed his employment in Canada but did not have an opportunity to seek employment in the United States until Sunday July 2, 1967 when he visited 

his son in Detroit and saw a help wanted advertisement in the newspaper; that when he returned to Canada about April 19, 1967 his 

intention was to stay in Canada if he could not find a job in. the 

United States at least equal to his Canadian job or better (Ex. 4, p. 

2; Tr. p. 24). • 

Upon a fair evaluation of this testimony, we cannot agree with the 

conclusion of the special inquiry officer. It appears dear that the 

applicant intended when he left the United States because of unsuitable employment and the illness of his wife,' to return to the United 

States as soon as qualified employment 'was 'available; that he never 

intended to abandon his count rater status; and never had the intention of remaining permanently-,in Canada after having once obtained 

satisfactory employment in the United States. The initial interruption 

of his eraploynienbin the United States was because he was physically 

unable to bear the heat of the job as an industrial blacksmith. The 

exclusion case appears to have originated in a letter from the first 

employer in the United States indicating pique because the applicant 

left his employment and expressing a desire to cancel his sponsorship 

and requesting that the applicant's visa also be cancelled (Ex. 6). 

However the Chrysler Corporation by whom he has been employed 

since July 10, 1967 indicates that he is presently employed by that 

company as a millwright, a job more in keeping with his qualifications. 

Uponi consideration of the entire record, we find that the applicant has resumed employment in the United States within a period 

of approxiinately.thitomonths' Of his last employment in the United 

States. The evidence does not sustain a finding that he at any time 

had any intention of • abandoning his commuter status: On the contrary, it appears that the applicant had a continuing intention to 

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Interim De,eisibn #1823 

retain his commuter status? The decision of the special inquiry officer 

will be reversed. 

ORDER: It is ordered that the applicant be found eligible for admission to the United. States as a commuter. 

IMatter of Bonannt, Int Dec. No. WI. 

559