A-7675485
Decided by the Board March 16, 1954
Commuters — System of admission not changed by Immigration and Nationality Act.
The practice of considering commuters as permanent residents has not been disturbed by the Immigration and Nationality Act of 1952, but rather it has been impliedly approved by the Congress since the legislative history of the act reveals a discussion without dissent.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (20) — No immigrant, visa no passport.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the special inquiry officer dated October 14, 1953, excluding the alien on the above-stated ground. Appellant, a 40-year-old native and citizen of Mexico, sought admission to the United States at Calexico, Calif., on October 13, 1953, for 1 day in order to proceed to his regular employment in this country. He was originally admitted for permanent residence at Calexico on June 18, 1942, and has since worked in this country and lived in Mexicali, B.C., Mexico.
The instant case clearly poses the question of whether the Immigration Act of 1952 ( 66 Stat. 163; 8 U.S.C. 1101) has restricted, changed or otherwise limited the long established system of commuter admissions. Many aliens living near the border in Canada and Mexico have long had the habit of commuting daily to employment in the United States. Only after immigration was restricted under the act of 1924 ( 43 Stat. 153; 8 U.S.C. 201) was the present scheme of initially admitting commuters as immigrants for permanent residence commenced by Immigration Service General Order 86 (April 1, 1927). Since that time, it has been continued administratively (Cf., 8 C.F.R. 110.6) with the system being recognized in the legislative history of the Immigration Act of 1952. These discussions reveal no congressional dissatisfaction with the commuter procedure.
Aliens coming for employment while residing in contiguous territories; classification. — Aliens entering the United States to engage in existing employment or to seek employment in this country and who desire to continue to reside in foreign contiguous territory will be considered as aliens of the immigrant class.
S. Rept. 1515, 81st Cong., 2d sess., p. 535; S. Rept. 1137, 82d Cong., 2d sess., p. 4; H. Rept. 1365, 82d Cong., 2d sess., p. 32.
Since section 101 (a) (15) (B) of the act of 1952 has not changed the statutory provisions governing nonimmigrant temporary visitors, commuters may not be admitted under this section any more than they were eligible for admission under section 3 (2) of the act of 1924. Nor has section 101 (a) (15) (H) specifically changed the administrative practice for commuter admissions. However, although section 101 (a) (15) (H) has added a new satutory class of nonimmigrants, alien commuters as persons coming to the United States to engage in regular employment are not included in this group of aliens coming here temporarily or to perform temporary services.
The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens —
When used in this Act the term "immigrant" means any alien departing from any place outside the United States destined for the United States, except * * *
(2) An alien visiting the United States temporarily as a tourist or temporarily for business or pleasure.
In the past, commuters upon admission for permanent residence were issued resident alien's border crossing identification cards (8 C.F.R. 166), were permitted to continue to reside abroad, and were treated as returning resident aliens at each entry. The procedure for issuance of border crossing cards is substantially the same under 8 C.F.R. 211.11 as under 8 C.F.R. 166. In addition, regulations issued under authority of sections 103 and 211 (b) provide for waiver of documents for an alien returning after a temporary visit of six months or less in Canada or Mexico, if a valid resident alien's border crossing identification card is presented ( 8 C.F.R. 211.2 (c) (1)).
See appendix B.
Immigrant not required to present visas or passports. — Immigrants of the following-described classes applying for admission to the United States need not present visas or passports: * * *
(c) Aliens (including alien crewmen) of the following-described classes who have been lawfully admitted for permanent residence, who are otherwise admissible, and who are returning after a temporary absence:
(1) An alien who is returning to the United States after a temporary absence of not more than 6 months in Canada or Mexico only, and who presents a valid unexpired resident alien's border crossing identification card.
Under the 1952 act, the meaning of lawful admission for permanent residence in section 101 (a) (20) is interrelated to the definition of the border crossing identification cards in section 101 (a) (6) and the grounds for readmission of aliens after temporary visits abroad under section 211 (b). Actually the phraseology of section 101 (a) (20) is very similar to 8 C.F.R. 176.101 (n), under which the system of commuted admissions flourished. Even if the definition of "residence" in section 101 (a) (33) is considered in conjunction with the provisions of section 101 (a) (20), it does not in fact change the status of the commuter.
The term "lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the Immigration laws, such status not having changed.
The term "border crossing identification card" means a document of identity bearing that designation issued to an alien who is lawfully admitted for permanent residence, or to an alien who is a resident in foreign contiguous territory, by a consular officer or an immigration officer for the purpose of crossing over the borders between the United States and foreign contiguous territory in accordance with such conditions for its issuance and use as may be prescribed by regulations.
"Lawful permanent resident of the United States" means an alien who has been lawfully admitted into the continental United States, the Virgin Islands, Puerto Rico, or Hawaii of permanent residence therein, and who has since such admission maintained his domicile in the United States.
The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. * * *
The phrase admission for permanent residence continues to refer to a status by which the alien is granted the privilege of residing in the United States permanently as an immigrant upon lawful admission. Thus, a commuter who has been legally admitted as an immigrant is entitled to receive a border crossing identification card so long as he continues in that status. Similarly, a commuter is entitled to readmission under section 211 (b) as a returning resident while he maintains this status and complies with conditions controlling the use of border crossing cards. 8 C.F.R. 211.11, 211.2 (c) (1).
Notwithstanding the provisions of section 212 (a) (20) of this act, in such cases or in such classes of cases and under such conditions as may be by regulations prescribed, otherwise admissible aliens lawfully admitted for permanent residence who depart from the United States temporarily may be readmitted to the United States by the Attorney General in his discretion without being required to obtain a passport, immigration visa, reentry permit or other documentation.
It is therefore concluded that the practice of considering commuters as permanent residents has not been disturbed by the act of 1952, but rather it has impliedly received congressional approval, since the legislative history of the act reveals a discusion without dissent. Without clear statutory language requiring a mandatory change in the commuter scheme, the law cannot be construed as prohibiting this procedure.
Cf., Matter of D---- C----, A-6924895, 3 IN Dec. 519 (B.I.A. June 29, 1949); Matter of F----, A-6300563, 3 IN Dec. 526n ( Editor's note) (Atty. Gen. Jan. 3, 1947). The fiction of a commuter's permanent United States residence coinciding with his place of employment was recognized judicially in Petition of Correa, 79 F. Supp. 265 (W.D. Tex., 1948). In that case, however, the court pointed out that this residence could not supply the need for an actual residence in this country if such actual residence was specifically required by immigration and nationality laws. The issue in the Correa case was one of naturalization.
For these reasons, the ground of exclusion is not supported and the appeal is sustained.
Order: It is hereby ordered that the appeal be sustained and the alien admitted as a commuter.
APPENDIX A
Immigration regulations concerning border crossing identification cards as of June 27, 1944.
SEC. 166.1 Resident alien's border crossing identification card; qualifications to obtain. — A resident alien's border crossing identification card may be issued to any alien who, upon application therefor, submits satisfactory evidence that he (1) has been legally admitted to the United States for permanent residence and has not relinquished the status of a permanent resident, (2) has complied with the applicable provisions of the Alien Registration Act, 1940, and (3) has a legitimate purpose and reasonable need to make a temporary visit or visits to Canada or Mexico, with no single visit to exceed a period of 6 months: Provided, however, That no such card shall be issued nor shall any such card previously issued be renewed unless the applicant or holder thereof is a person who is permitted to depart from the United States under the terms of laws, regulations, Executive orders, or other governmental restrictions regulating the departure of aliens from the United States in effect at the time application for such card or renewal thereof is made. (Amended October 22, 1951, 16 Fed. Reg. 9633; May 30, 1952, 17 Fed Reg. 4921.)
SEC. 166.4 Resident alien's border crossing identification card; use. — The rightful holder of a valid resident alien's border crossing identification card issued under section 166.3 may present that document in lieu of an immigration visa or reentry permit when applying for admission at any land, water, or airport of entry in the continental United States or Alaska as a returning legal resident after an absence from the United States of not more than 6 months, provided that during such absence he shall not have visited any foreign territory other than Canada or Mexico. The presentation of a resident alien's border crossing identification card shall not otherwise relieve the applicant from establishing that he is not subject to exclusion from the United States. (Amended May 14, 1950, 15 Fed. Reg. 2076; May 30, 1952, 17 Fed. Reg. 4921.)
APPENDIX B
Pertinent provisions of title 8, Code of Federal Regulations concerning the resident alien's border crossing identification card.
211.11 Resident alien's border crossing identification card. — (a) Form.-For the purposes of sections 211 (b) and 212 (a) (20) of the Immigration and Nationality Act and this part, Form I-151 (Alien Registration Receipt Card) or any outstanding valid Form I-187 (Resident Alien's Border Crossing Identification Card) shall be accepted as a resident alien border crossing identification card when in possession of and presented by the rightful holder thereof during the period of its validity.
(b) Use. — The presentation of such card shall not relieve the holder from establishing his admissibility to the United States under the applicable provisions of the Immigration laws and regulations. A resident alien's border crossing identification card may be used by an alien who has been lawfully admitted to the United States for permanent residence for the purpose of (1) facilitating determination of his status as a returning legal resident when applying for admission at any land or water port of entry or international airport in the continental United States or Alaska after an absence from the United States of not more than 6 months, during which absence he visited no foreign country other than Canada, Mexico, or both, and (2) satisfying the documentary requirements of sections 211 (b) and 212 (a) (20) of the Immigration and Nationality Act and this part.
(c) Form I-151; who may apply. — Any alien lawfully admitted to the United States for permanent residence who is not in possession of a Form I-151 may apply for such form in accordance with the provisions of section 264.5 of this chapter.