A-4844180
Decided by the Board December 31, 1953
Ineligible to citizenship — Claim of exemption by neutral alien (Mexican) from military service here — Section 3 (a) of the Selective Training and Service Act of 1940, as amended — Effect under section 212 (a) (22) of the Immigration and Nationality Act when not within the age group liable for military service.
(1) The filing of Form DSS 301 requesting exemption from military service as a neutral alien is not a bar to naturalization under the Selective Training and Service Act of 1940, as amended, unless at the time of filing the alien was (1) residing in the United States, (2) a citizen or subject of a neutral country and (3) within the age group statutorily liable for military service.
(2) A citizen of Mexico lawfully admitted to the United States for permanent residence who filed Form DSS 301 on May 19, 1942, on which date he was over 47 years of age is not inadmissible to the United States under section 212 (a) (22) of the Immigration and Nationality Act.
EXCLUDABLE:
Section 212 (a) (22), Immigration and Nationality Act — An alien who is ineligible to citizenship.
BEFORE THE BOARD
Discussion: This is an appeal from an order of the special inquiry officer excluding the applicant from admission to the United States as an alien ineligible to citizenship under section 212 (a) (22) of the Immigration and Nationality Act.
The applicant is a married male, born on July 9, 1894, in Mexico and now a citizen of that country, who has applied for admission at Nogales, Ariz., on September 28, 1943, to resume permanent residence in the United States with Form I-151, Alien Registration Receipt and Border Crossing Card. He was originally admitted to the United States in May 1917 and has resided here continuously since then. In 1920 he was married in this country and has two daughters who are native-born citizens of the United States. He was naturalized as a United States citizen on November 19, 1926, but in order to continue the privilege of operating a small business which he had established in Mexico, he renounced his United States citizenship and was naturalized in Mexico on October 11, 1938. Nevertheless, he did not relinquish his residence in the United States and on February 8, 1940, he was issued a resident alien's identification card which has been revalidated from time to time.
The record reflects that on April 27, 1942, the applicant registered as a resident alien with the local Selective Service Board at Nogales, Ariz. He testified that about a month later he met a Mexican consular official who told him about Selective Service Form 301 and instructed him that it was the obligation of all Mexican citizens residing in Nogales to sign that form. He thereupon went to his local board office and executed Form DSS 301 on May 19, 1942, on which date he was over 47 years of age. He has stated that when he executed that form he had no thought of being relieved from military service, because of his already existing exemptions on account of age and dependency, but that he was afraid to ignore the instructions of the representative of the Mexican Government since the sole source of his livelihood was in Mexico and he had previously had difficulties with the Mexican officials, resulting in his renunciation of United States citizenship in 1938. After he filed DSS Form 301 the Selective Service authorities never communicated with him or classified him.
The issue presented is whether the applicant's execution of Form DSS 301 made him ineligible to citizenship and therefore inadmissible to the United States at the present time.
Section 212 (a) (22) of the Immigration and Nationality Act renders inadmissible to the United States "aliens who are ineligible to citizenship, except aliens seeking to enter as nonimmigrants." Section 101 (a) (19), which defines the terms used in the Immigration and Nationality Act, provides:
The term "ineligible to citizenship," when used in reference to any individual, means, notwithstanding the provisions of any treaty relating to military service, an individual who is, or was at any time, permanently debarred from becoming a citizen of the United States under section 3 (a) of the Selective Training and Service Act of 1940 as amended, * * * or under any section of this act, or any other act, or under any law amendatory of, supplementary to, or in substitution for, any of such sections or acts.
The pertinent provisions of the Selective Training and Service Act of 1940, as amended, in effect when the alien registered and executed Form DSS 301 follows:
SEC. 2. Except as otherwise provided in this act, it shall be the duty of every male citizen of the United States, and of every other male person residing in the United States, who, on the day or days fixed for the first or subsequent registration, is between the ages of 18 and 65, to present himself for and submit to registration at such time or times and place or places, and in such manner and in such age group or groups, as shall be determined by rules and regulations issued hereunder.
By Presidential Proclamation 2541 issued on March 19, 1942 ( 50 U.S.C. App. 301-318; Supp. 1, 302-315) persons born between April 28, 1877, and February 16, 1897, were required to register on April 27, 1942.
Before amendment by the act of December 20, 1941 ( 55 Stat. 844) this section provided for registration of persons between the ages of 21 and 36.
SEC. 3 (a). Except as otherwise provided in this act, every male citizen of the United States, and every other male person residing in the United States, who is between the ages of 20 and 45, at the time fixed for his registration, or who attains the age of 20 after having been required to register pursuant to section 2 of this act, shall be liable for training and service in the land or naval forces of the United States: Provided, That any citizen or subject of a neutral country shall be relieved from liability for training and service under this act, if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States: * * *
As originally enacted this section referred to persons between the ages of 21 and 36 (act of September 16, 1940,54 Stat. 885). By act of December 20, 1941 ( 55 Stat. 844) the section was amended to read as set forth above.
The chief purpose of the registration provision contained in section 2 was to provide a general inventory of the manpower of the country. The purpose of section 3 (a), was to define the classes of persons subject to conscription for military training and service. The provisions for registration were separate and distinct from the conscription provisions. See United States v. Rappeport, 36 F.Supp. 915 (S.D.N.Y., 1941), affirmed, 120 F. (2d) 236 (C.C.A. 2, 1941). Liability for training and service was governed solely by section 3 (a) of the act. That section in effect compelled an alien to make an election. If the alien was embraced within the scope of the section and applied for relief from military training and service then he was debarred from becoming a citizen of the United States. If, however, he was not liable to such service, then any purported application for relief from military service made by him must be deemed a nullity. Thus, if an alien, at the time of filing Form DSS 301, was not in fact a citizen or subject of a neutral country, such form was considered of no effect at all. Similarly, where an alien not residing in the United States within the meaning of section 3 (a) filed Form DSS 301, such form was considered ineffective to render him ineligible to citizenship. McGrath v. Kristensen, 340 U.S. 162 (1950). In that case the Supreme Court stated (p. 172):
Moser v. United States, 341 U.S. 41 (1951).
Petition of Bartenbach, 82 F. Supp. 649 (W.D. Pa. 1949), affirmed, 178 F. (2d) 403 (C.A. 3, 1949); Matter of D----, A-3203582, B.I.A. 1953, Int. Dec. No. 463.
Local Board Release No. 112 issued by National Headquarters of the Selective Service System on March 16, 1942 provided:
"(5) (a) When an application by Alien for Relief From Military Service (Form 301) is filed with a local board prior to the time that the registrant is classified, the local board when classifying the registrant will first determine whether or not he is a citizen or subject of a neutral country. If the local board finds that he is a citizen or subject of a neutral country, it will classify him in class IV-C. If the local board finds that he is not a citizen or subject of a neutral country, it will disregard the fact that he has filed a Form 301 and classify him in the same manner as any other registrant.
"(5) (d) Unless a registrant is a citizen or subject of a neutral country, the filing of an application by Alien for Relief From Military Service (Form 301) has no effect whatever. A citizen or subject of either a cobelligerent country or any enemy country is given no right to be relieved from training and service, and if such a registrant files an Application by Alien for Relief From Military Service (Form 301), it has no effect. Similarly, a national of the United States has no right to be relieved from liability for training and service and his filing of an Aplication by Alien for Relief From Military Service (Form 301) has no effect.
If there was "no liability" for service, the disqualification for citizenship under the penalty clause could not arise because the applicant had not made the "application" referred to in the statute as "such application." "Such application" refers to an application to be relieved from "such liability." As there was no "liability" for service, his act in applying for relief from a nonexistent duty could not create a bar against naturalization. By the terms of the statute, that bar only comes into existence when an alien resident liable for service asks to be relieved. [Emphasis supplied.]
By the same reasoning, a person not within the age group specified in section 3 (a) of the Selective Training and Service Act of 1940, not being liable to military service, could suffer no disability by going through the motions of executing Form DSS 301. We conclude, therefore, that the filing of such a form is not a bar to naturalization under the Selective Training and Service Act of 1940 unless at the time of filing, the alien was (1) residing in the United States, (2) a citizen or subject of a neutral country, and (3) within the age group statutorily liable for military service.
In the instant case it is uncontroverted that the applicant was residing in the United States, and a citizen of a neutral country when he executed Form DSS 301. However, the record shows, and the Government does not dispute, that he was over 47 years of age on April 27, 1942, the date fixed for his registration. We therefore conclude that the filing of the Form DSS 301 was entirely ineffective to disqualify him from United States citizenship.
According to bulletins issued by the Department of State, Mexico became a cobelligerent on May 22, 1942.
In reaching this conclusion, we are not unaware of the decision in Petition of Perez, 81 F. Supp. 591 (E.D.N.Y., 1948). However, we consider that case distinguishable on its facts. That case involved a citizen of Spain, born on January 5, 1903, who filed an application for relief from military service of the United States on December 16, 1942, when he was over 38 years of age. On December 5, 1942, the Selective Service System received instructions not to induct registrants over 38, which was implemented by a regulation effective January 1, 1943, creating a new classification for registrants between 38 and 45. On September 10, 1943, he attempted to revoke his application for relief from military service but was unsuccessful. In refusing naturalization to the alien, the court rejected his argument that he was not liable for training and service because of his age saying (p. 592):
The fallacy in the argument is that the petitioner fails to recognize that the statute applies to all male citizens of the United States and all other male persons residing in the United States "between the ages of 18 and 45 at the time fixed for his registration." At the time that the petitioner registered he was between the age limits and therefore liable for military training and service in the land or naval forces of the United States. The statute was not amended by the director of the Selective Service System as a result of his telegram of December 5, 1942, that "no registrants who have reached their 38th birthday are to be sent for induction." If the necessities of the war determined, the director could have changed his instruction to local boards at any time thereafter while the Selective Service Act of 1940 remained in force with section 3 (a) as above quoted. [Emphasis supplied].
By act of November 13, 1942 ( 56 Stat. 1018), the minimum age for military service was lowered from 20 to 18.
In the present case the alien was beyond the age fixed by the statute for liability for service, when he executed the Form DSS 301. Unlike Perez, he had a statutory exemption, beyond the jurisdiction of the Selective Service authorities to change. His liability to military training and service could be changed only by an act of Congress, amending the Selective Training and Service Act. See Lehr v. United States, 139 F. (2d) 919 (C.C.A. 5, 1943) (rehearing denied 1944). We consider the rationale of the Perez case as not only not conflicting with our conclusion in this case, but actually supporting it.
Counsel has urged that since the applicant executed the Form DSS 301 under pressure exerted by a Mexican official, he did not have an "opportunity to make an intelligent election" and the execution of such form should therefore be ignored. In view of the conclusion heretofore reached, we do not deem it necessary to consider this point. We also find it unnecessary to pass upon counsel's request for the exercise of discretionary authority contained in section 212 (c) of the Immigration and Nationality Act, since we find the alien to be admissible to the United States.
The language quoted was used by the court in Moser v. United States ( supra) F.N. 4, at p. 40. See also Machado v. McGrath, 193 F. 2d) 706 (C.A., D.C., 1951).
We will therefore sustain the appeal and order the applicant's admission to the United States.
Order: It is ordered that the appeal be sustained and the alien be admitted to the United States as a lawfully returning resident.