Matter of Burciaga-Salcedo
| Decision Date | 31 May 1966 |
| Docket Number | A-12699434,Interim Decision Number 1601 |
| Citation | 11 I&N Dec. 665 |
| Parties | MATTER OF BURCIAGA-SALCEDO In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The special inquiry officer certified to the Board his order requiring applicant's exclusion 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 contiguous territory is known as a commuter (Matter of Bailey, Int. Dec. No. 1546). Some background for the commuter status will help determine the case 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 had been admitted as visitors on the basis of visitor's visas which were valid for a year and were good for successive applications for temporary admission. Passage of the 1924 Act raised a question as to whether a commuter was an immigrant rather than a visitor. The Act termed an alien an immigrant unless he proved he was a nonimmigrant. (An immigrant needed an immigrant visa — it was good for one entry only and could be issued only under restrictions not applicable to the issuance of nonimmigrant visas.) The nonimmigrant category pertinent to this discussion was that of the alien coming as a temporary visitor for "business". In this category 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 immigrant 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 1924 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 livelihood 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 permitted a limited continuance of the commuter status. It was to treat the commuter who obtained an immigrant visa as if he lived in the United States although he continued to live in the contiguous territory.
An alien lawfully admitted for permanent residence and domiciled in the United States could be issued a border crossing card which authorized him to make a temporary visit to foreign contiguous territory and to return to his home in the United States without presenting 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 permit him, if 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 were difficulties in treating a commuter as if he was a domiciled alien. The alien actually domiciled in the United States attempting to enter as a returning resident with a border crossing card after a temporary visit outside the United States lost his right to reenter unless he established that he at all times maintained the intention of returning to his domicile in the United States. The commuter did not have a domicile in the United States and in many cases had no intention of moving here, was he therefore to be unrestricted 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 on 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 card if he was absent more than six months, the commuter lost his right to reenter on a border crossing card if he was unemployed for more than six months.
To treat the commuter as if he was a domiciled alien was a necessary if awkward fiction which permitted the practice to continue, but it was at odds with the administrative desire to have commuters make their homes in the United States. Soon rules concerning inspection and entry arose which made the commuter realize that not only would it be more convenient to live in the United States than to commute, but that loss of the right to enter the United States as a commuter could occur without his fault and even despite his intention to retain the right. Thus, the conclusive presumption arose that a commuter unemployed in the United States for more than six months had abandoned his intention to enter as a commuter — he could be readmitted to the United States to work only if he had a new immigrant visa. This conclusive presumption, with one exception, applied even though the commuter had retained the intention to commute and even though he had entered in the meantime to search for employment. This treatment was in contrast to that given the domiciled alien temporarily absent from the United States for more than six months; he, if he had not abandoned the intention to return, could be readmitted as a returning resident upon a waiver of the documentary requirements.
An exception to the conclusive presumption was made in the case of the commuter outside the United States for more than six months because of illness, accident, or pregnancy. With this background in mind, we may consider the facts in the case before us and the precedent decisions.
In May 1961, the applicant, a 35-year-old female alien, a native and citizen of Mexico, was admitted to the United States for permanent residence; she took up residence in El Paso, Texas and became employed as a domestic. In October 1961 her employer left the area; the applicant moved across the border to Mexico but found another job in the United States and continued entering daily to work as a domestic. In December 1964, she stopped working to care for her two-year-old child who had become ill. In the early part of the following month the child seemed to recover and the applicant went back to work. A few days later the child became seriously ill. 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, feeling that the child could be left in the care of others, the applicant sought employment in the United States. On December 14, 1965 she started working with Mrs. Allen and thereafter came in daily to employment as a domestic. 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 commuter...
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