Interim Decision #2095
MATTER OF HOFFMAN-ARVAYO
In Exclusion Proceedings
A-14206689
Decided by Board September 7, 1971
(1) The term "commuter" encompasses the "seasonal commuter" who enters
to perform seasonal work for extended periods, but whose annual stay in
the United States is for less than 6 months. However, the "seasonal commuter" must not be confused with the resident alien physically present in
the United States for more than 6 months in the aggregate during the
past year, who is not within the commuter category.
(2) Where appellant, a native and citizen of Mexico, following admission for
permanent residence resided in the United States from 1964 until August
1969 when he returned his family to Mexico, and thereafter (from August
1969 up until he was detained for hearing on March 2, 1970) resided and
was continuously employed in Tucson, Arizona, during which period he
visited his family in Mexico on intermittent weekends, he did not acquire
commuter status by reason of such intermittent weekend visits with his
family. Hence, his absence to visit his family in Mexico on the weekend
immediately preceding his application for entry as a returning resident on
March 2, 1970, was an innocent, casual, and brief excursion within the
meaning of Rosenberg v. Pleuti, 347 U.S. 449 (1963), and his return therefrom does not constitute an entry upon which to predicate a ground of
exclusion.
EXCLUDABLE: Act of 1952—Section 212(a) (9) [8 U.S.C. 1182(a) (9)1—Admits having committed crime, or acts which
constitute the essential elements of crime, involving moral turpitude, to wit, bigamy.
ON BEHALF OF APPLICANT: NO ONE
The applicant, a native and citizen of Mexico, was admitted to
the United States for permanent residence on March 26, 1964. He
applied for admission as a returning resident alien at the port of
Douglas, Arizona on March 2, 1970. He was detained for an exclusion hearing since he appeared to be inadmissible under the
provisions of section 212 (a) (9) of the Immigration and Nationality Act as an alien who admits the commission of a crime involving moral turpitude or acts which constitute the essential ele-
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Interim Decision #2095
ments of such a crime, to wit, the crime of bigamy. After a
hearing, the special inquiry officer ordered the applicant admitted
to the United States. The special inquiry officer certified the case
to the Board of Immigration Appeals for final decision. The issue
before us is whether the applicant, an alien admitted for permanent residence who maintains living quarters in the United States
while gainfully employed for five days each week, acquired
"commuter" 1 status by reason of his intermittent weekend departures to visit his family in Mexico, thereby precluding a finding that his departures were not "meaningful" within the purview of Rosenberg v. Fleuti, 347 U.S. 449 (1963).
Briefly, the facts concerning this issue are as follows: The
applicant married Francisca Gonzalez Caballero at Lowell, Arizona on September 19, 1963. He testified that he believed that
Francisca was born in the United States (p. 13). He was admitted as a non-quota immigrant on March 26, 1964 pursuant to the
provisions of section 101(a) (27) (C) of the Immigration and Nationality Act. He resided with Francisca in Tucson, Arizona until
she left him in May or June of 1965 (pp. 13 and 14). The applicant testified that his marriage to Francisca Gonzalez Caballero
has not been terminated and that she now resides hi Douglas, Arizona with another man (pp. 14, 16, 18 and p. 2 of Ex. 4). He
supports the two children born of this marriage by paying $100
monthly under an order entered by a court in Douglas, Arizona.
The applicant married Rosa Marie Chavez-Garcia at Agua
Prieta, Mexico on March 21, 1966. She resided with the applicant in Los Angeles, California for approximately eight months
between December 1968 and August 1969 (p. 17). The applicant,
his wife Rosa Maria and their two children then returned to
Agua Prieta, Sonora, Mexico (p. 10). The applicant testified that
he resumed his employment with a painting contractor in the
United States "about a week" after the family returned to Mexico (p. 11). He has had continuous employment with this painting
contractor in Tucson, Arizona from August 1969 up until March
2, 1970 when he was detained for an exclusion hearing.
An alien admitted for permanent residence is classified as a "commuter"
when he actually lives in a contiguous foreign country but enters the United
States periodically to work. Such an alien by the very nature of his residence in a foreign contiguous territory makes an entry within the meaning
of the immigration laws each time he returns to his employment in the
United States, Gooch v. Clark, 433 F.2d 74 (9 Cir., 1970), cert. denied sub
mini. Gooch v. Mitchell,
402 U.S. 995; Cermeno-Cerna v. Farrell,
291 F.
Supp. 521, 529 (C.D. Cal., 1968) ; Matter of Estrada-Pena, 12 1. & N. Dec.
429, 430 (BIA, 1967).
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Interim Decision #2095
During this period, the applicant resided and worked in Tucson
for five days of the week and visited his family in Agua Prieta,
Sonora, Mexico on intermittent weekends. He testified that on a
majority of the weekends, he had to work or help his brother who
resides in Tucson, and would visit his family in Mexico biweekly.
He further testified that he was always admitted as a returning
resident alien on the occasion of his periodic returns from Agua
Prieta, Mexico to Tucson, Arizona until his application for admission on March 2, 1970.
The applicant's excludability under section 212 (a) (9) as a
criminal alien depends upon whether he was seeking to make an
entry on March 2, 1970 within the purview of section 101 (a) (13)
of the Immigration and Nationality Act when he returned from
Mexico after visiting his family over the weekend. The question of
whether the applicant was seeking to make an entry on this occasion depends in turn on whether, during the weekend prior to March
2, 1970, he made a "meaningful departure" to Mexico as contemplated by the Supreme Court's interpretation of the quoted term in
the case of Rosenberg v. Fleuti, supra. If the applicant had acquired the status of a commuter alien, then his departure to his
home in Mexico on the weekend preceding March 2, 1970 was a
"meaningful departure" and, therefore, his return to the United
States on March 2, 1970, when he applied for admission at Douglas, Arizona as a returning resident alien, would constitute an
entry, Gooch v. Clark, supra footnote 1; Cermeno-Cerra v. Far-
rell, supra footnote 1 at p. 529; Matter of Estrada-Pena, supra
footnote 1.
The special inquiry officer concludes that the applicant did not
acquire the status of a "commuter" during the period of August
1969—March 1970 when he resided and worked in Tucson Arizona from Monday to Saturday of each week, usually departing
to Mexico for biweekly visits with his family and occasionally departing for intervening weekends. The special inquiry officer in
reaching this conclusion refers to a comment by the court in the
case of Cermeno-Cerna, v. Farrell, supra, footnote 1 at p. 529,
which quotes counsel for the defendant Immigrant Service as
stating that the "amiable fiction" 2 of a commuter "is more re-
2 Present statutory law requires commuter aliens residing abroad who have
been admitted as immigrants for permanent residence to obtain reentry documents for every entry. The term "amiable fiction" refers to the fact that
despite the statutory requirement they are now permitted to reenter upon
presentation of their alien registration card (Form 1-151) based upon the
fiction that their presence in the United States while employed amounts to
permanent residence in the United States.
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cently being extended beyond border town employment to seasonal workers staying for longer periods of time." The special inquiry officer is of the opinion that this is a novel extension of the
commuter concept which should be considered by the Board of
Immigration Appeals. He certified the case for this purpose.
An immigrant alien who has been lawfully admitted for permanent residence may commence or continue to reside in foreign
contiguous territory and commute to his United States place of
employment. The authority for such an arrangement is derived
from an administrative interpretation of section 211 (b) of the
Immigration and Nationality Act which provides in substance
that returning resident immigrants may be readmitted without
documentation in the discretion of the Attorney General and
under such conditions as he may prescribe by regulations, Gooch
v. Clark, supra footnote 1. There are two types of commuters,
those who commute regularly, normally entering at least twice
weekly, and those who enter to perform seasonal work for extended periods, but whose annual stay in the United States is for
less than six months. The latter are referred to as "seasonal commuters" or "seasonal workers." The seasonal commuter must not
be confused with the resident alien who has been physically present in the United States for more than six months in the aggregate during the past year. Such resident alien is not considered to
be within the commuter category.
The applicant has been physically present in the United States
for more than six months in the aggregate during the one year
period immediately preceding his application for entry on March
2, 1970. He resided and was employed in the United States at Tucson, Arizona and Montebello, California from the time of his
original entry for permanent residence on March 26, 1964 until
he returned his family to Mexico in August of 1969. He returned
to the United States within one week of this departure and has
had continuous employment with a painting contractor in Tucson,
Arizona up until he was detained for a hearing on March 2,
1970. During this period, he maintained a residence in Tucson,
visiting his family intermittently on weekends (p. 2 of Ex. 5).
Furthermore, there is no showing that the applicant was ever issued a commuter status card (Form 178). We affirm the conclusion reached by the special inquiry officer that the applicant did
not acquire the status of a commuter prior to his departure from
the United States on the weekend he visited his family in Mexico
immediately preceding March 2, 1970.
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We have reviewed the evidence relied upon by the special inquiry officer and affirm his conclusion that the applicant's departure on the weekend in question to visit his family in Mexico was
an innocent, casual and brief excursion which was not disruptive
of his resident alien status within the principle stated by the Supreme Court in Rosenberg v. Fleuti, supra. The applicant's marriage with his second wife, although bigamous on his part, has
been a subsisting relationship since it was entered into on March
21, 1966. He has been supporting this wife, the child which is the
issue of this marriage and a child born to his wife prior to her
marriage to the applicant. The applicant's bigamous marriage did
not break up a valid subsisting marriage as his former wife had
left him to reside with another man.
The case is distinguishable from those cases 3 in which we have
held that the departure of a lawful permanent resident alien
amounts to a "meaningful departure" when the purpose of leaving the country was to accomplish some object which was itself
contrary to some policy reflected in our immigration laws. The
applicant testified that he was not aware that his second marriage, without prior divorce, amounted to bigamy under the laws
of Mexico (p. 3 of Ex. 4).
Since the applicant was not making an entry on March 2, 1970,
the issue of whether he is excludable as a criminal alien under
section 212(a) (9) of the Immigration and Nationality Act becomes moot. An appropriate order affirming the special inquiry
officer's order will be entered.
ORDER: It is directed that the order entered by the special inluiry officer on July 6, 1970 providing for the alien's admisson as
returning resident alien be and the same is hereby affirmed.
3 Matter of Corral-Fragoso, 11 I. & N. Dec. 478 (BIA, 1966) ; Matter of
,herbank,
10 I. & N. Dec. 522 (BIA, 1964).
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