GERHARD

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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  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 deter-

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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.
 I   Matter of Bonannt, Int Dec. No. WI.




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