A-3087364
Decided by Central Office February 6, 1950 Decided by Board April 6, 1951 Motion by Central Office May 7, 1951 Decided by Board August 2, 1951 Decided by Acting Attorney General September 11, 1951
"Neutral alien," claiming exemption from service in the United States Armed Forces — Ineligibility to United States citizenship — Section 3 (a) of the Selective Training and Service Act of 1940 (as amended) — Whether alien here in legal status of nonimmigrant is "residing" here within meaning of above act and regulations thereunder.
A neutral alien (Lebanon citizen), who came here as a visitor for business in 1939 and received extensions of stay covering the period of time he remained here (he departed September 22, 1945), filed DSS Form 301 (application for relief from military service here) on November 4, 1942. Under section 3 (a) of the Selective Training and Service Act of 1940 (as amended), and applicable regulations thereunder (see Executive Order 8545 of September 23, 1940) (F.R. 3786, September 25, 1940) he was found to be a "resident" within the meaning thereof, when he filed DSS Form 301 on November 4, 1942; consequently he was deemed to be ineligible to citizenship thereafter. (The Supreme Court decision of December 11, 1950, in McGrath v. Kristensen, 340 U.S. 162, was discussed.)
CHARGE:
Warrant: Act of 1924 — Remained longer — Visitor.
BEFORE THE CENTRAL OFFICE
(February 6, 1950)
Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Presiding Inspector and served upon the alien's attorney on November 15, 1949, are hereby adopted. The alien's attorney took exception as to the proposed conclusion of law as to discretionary relief and the proposed order of deportation.
The record relates to a 34-year-old married male, who last entered the United States on September 7, 1946, at the port of New York, N.Y., as a visitor for 6 months. He made application for extension of his temporary stay which was denied and he was informed that he should effect his departure from the United States on or before September 3, 1947. He first entered the United States on August 18, 1939, as a visitor and received extensions of his temporary stay until January 1, 1946. He departed from the United States on September 22, 1945.
The record discloses that the respondent was legally married to a native-born United States citizen on October 11, 1946. They have no children. According to the record the respondent has been in business for himself as an exporter. The respondent's wife has been employed as his secretary earning $45 a week since the latter part of May 1949 and prior thereto she was earning $55 a week.
The respondent's wife filed a petition for the issuance of an immigration visa in his behalf. The petition was denied for the reason that on November 4, 1942, the respondent filed an application for an exemption from military service as provided for under section 3 (a) of the Selective Training and Service Act of 1940, as a citizen of Lebanon, Syria, which was then regarded as a neutral country. The filing of this application for exemption from military service made the respondent ineligible for United States citizenship. He was, therefore, inadmissible to this country for permanent residence under section 13 (c) of the Immigration Act of 1924. Section 19 (c) (2) of the Immigration Act of 1917, as amended, which authorizes the Attorney General to suspend deportation, provides in part that such suspension may take place if the
deportable alien is not racially inadmissible or ineligible to naturalization in the United States * * *.
Since, by the express provisions of section 3 (a) of the Selective Training and Service Act, one who has filed DSS Form 301 is ineligible to citizenship and naturalization, it follows that suspension of deportation will not be permitted. Accordingly, his application for suspension of deportation will be denied.
Recommendation: It is recommended that application for suspension of deportation be denied.
It is further recommended, That the alien be deported to Lebanon, at Government expense, on the charge stated in the warrant of arrest.
Discussion: On February 6, 1950, the Assistant Commissioner entered an order directing the subject alien's deportation on the above-stated charge and denied his application for suspension of deportation. The case came before us on appeal, and on April 7, 1950, we ordered action deferred pending determination by the Supreme Court on a petition for certiorari in the case of Kristensen v. McGrath, 179 F. (2d) 796 (December 19, 1949). The case is now before us for further action. Decision was entered by the Supreme Court in the Kristensen case ( supra), on December 11, 1950, 340 U.S. 162.
The respondent is 36 years of age, a native and citizen of Lebanon, married, male. He first arrived in this country on August 18, 1939, and was admitted for 60 days as a visitor. He was granted several extensions of stay, the last of which expired January 1, 1946. He voluntarily departed from the United States on September 22, 1945. The respondent last entered the United States on September 7, 1946, as a passenger on the S.S. Athos II and was admitted as a temporary visitor for 6 months. He was denied extensions of temporary stay. A warrant was issued for his arrest in the present proceedings on June 24, 1948, and hearings were held on July 19, 1949.
The respondent was married on October 11, 1946, to R---- G---- D----, a citizen of the United States. The record satisfactorily establishes the good moral character of respondent. He has no criminal record; and character investigations conducted in 1949 are favorable to him. When the case was last before us, respondent's wife was employed by him at a weekly salary of $45. No finding was made by the examining officer as to whether the deportation of the respondent would result in serious economic detriment to his wife.
On November 4, 1942, when respondent was in the United States as a temporary visitor, he filed an application for exemption from military service under section 3 (a) of the Selective Training and Service Act of 1940, as a citizen of Lebanon, Syria, which, at that time, was regarded as a neutral country. The Service on February 6, 1950, denied the respondent's application for suspension of deportation for the reason that by filing DSS Form 301 the respondent was ineligible to United States citizenship and naturalization, and consequently suspension of his deportation could not be granted. This Board, on February 20, 1947, affirmed a decision of the Commissioner denying a petition of respondent's wife for issuance of an immigration visa in his behalf for the reason that respondent had applied for exemption from military service, and was therefore inadmissible for permanent residence.
Upon consideration in light of a decision of the Supreme Court of December 11, 1950, in McGrath v. Kristensen, it is our conclusion that respondent is not now within a category of those ineligible for citizenship. From the time of his entry in 1939 until his departure in 1945 respondent was in the status of a bona fide visitor and he left the country in accordance with the terms of his temporary admission. As the Supreme Court has read the Selective Training and Service Act of 1940, the respondent was not a "resident" of the United States when he applied for relief from military service. The respondent was in the country on a valid, legal status, recognized by the Government as such. Since he was not "residing" in the country, he was not liable for military service; and his application for relief from such service was of no effect.
Since it is concluded that respondent is not ineligible for citizenship, the next question for consideration is whether he should be granted discretionary relief. Application has been made for suspension of deportation or, in the alternative, for voluntary departure and preexamination. On the record now before us, we feel the facts justify granting the latter form of relief. The respondent's wife is at liberty to file a petition for an immigration visa in behalf of her husband. However, the action in granting voluntary departure and preexamination is without prejudice to further consideration upon motion by counsel for suspension of deportation.
Order: It is ordered that the outstanding order and warrant of deportation be withdrawn.
It is further ordered, That an order of deportation be not entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice within 6 months after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further ordered, That preexamination be and the same is hereby authorized.
Discussion: The respondent is 36 years of age, a native and citizen of Lebanon. He first entered the United States on August 18, 1939, was admitted as a visitor for 60 days, and then was granted several extensions of stay, the last of which expired January 1, 1946, but before such expiration date he voluntarily departed from the United States on September 22, 1945.
On November 4, 1942, he filed an application for exemption from military service under section 3 (a) of the Selective Training and Service Act of 1940 as a citizen of Lebanon, Syria, which at that time was regarded as a neutral country.
The Board of Immigration Appeals on April 6, 1951, stated the following:
Upon consideration in light of a decision of the Supreme Court of December 11, 1950, in McGrath v. Kristensen, it is our conclusion that respondent is not now within a category of those ineligible for citizenship. From the time of his entry in 1939 until his departure in 1945 respondent was in the status of a bona fide visitor and he left the country in accordance with the terms of his temporary admission. As the Supreme Court has read the Selective Training and Service Act of 1940, the respondent was not a "resident" of the United States when he applied for relief from military service. The respondent was in the country on a valid, legal status, recognized by the government as such. Since he was not "residing" in the country, he was not liable for military service; and his application for relief from such service was of no effect.
This Service takes issue with the conclusion reached by the Board of Immigration Appeals in the above-quoted paragraph.
It is to be noted that the respondent in this case filed as a neutral alien on November 4, 1942. The Supreme Court in the Kristensen case ( supra), was considering a person who had applied for similar relief on March 30, 1942. In the Kristensen case, under the regulations which obtained on March 30, 1942, the Supreme Court found that Kristensen did not come within the phrase "male person residing in the United States" and reached the conclusion in that case that Kristensen was not liable for military service in the United States when he applied for relief from such service as a neutral alien on March 30, 1942.
However, the regulations pertinent to the discussion in the present case wherein the neutral alien had applied for relief from military service on November 4, 1942, required a different determination in the present case as distinguished from the Kristensen case for under 32 C.F.R. 611.13 effective February 7, 1942 ( 7 F.R. 855), the respondent in this case had until May 17, 1942, an opportunity to decide whether he wished to leave the United States or seek exemption from United States military service. Since he did not leave the country by May 16, 1942, but rather stayed on until 1945, and actually claimed exemption from military service as a neutral alien on November 4, 1942, it must be concluded that on November 4, 1942, he was liable for military service as a male person residing in the United States within the meaning of the pertinent regulations. Accordingly, it is concluded that this nondeclarent alien, by executing his application for relief from military service on November 4, 1942, rendered himself ineligible for citizenship thereby. In view of this conclusion this Service holds that the alien is not entitled to suspension of deportation.
It has been noted in the decision of the Board of Immigration Appeals of April 17, 1951, in the Matter of K----, A-9623678, that the respective provisions of the pertinent regulations under 32 C.F.R. 611.3, 611.21, and 611.13, with their pertinent respective amendments were discussed in connection with a filing of an application for relief from military service on February 6, 1943, by a Finnish neutral. The Board in that case held that the alien had until April 1, 1943, before he became liable for military service here and that his action in applying for relief from a nonexistent duty on February 6, 1942, did not create a bar to naturalization. In the K---- case, the alien arrived in the United States on January 1, 1943, and applying the pertinent regulations with regard to residence, the Board found that he had until April 1, 1943, before he became liable for military service. In the present case, if the pertinent regulations were applied as in the K---- case ( supra), it would follow that the respondent's status was that of a male person residing in the United States and as previously stated he was liable for military service when he applied for relief from such service as a neutral alien on November 4, 1942.
In view of the foregoing it is urged that the Board of Immigration Appeals reconsider its conclusion reached in the present case on April 6, 1951.
Motion is hereby made, That the Board of Immigration Appeals reconsider and withdraw its order of April 6, 1951, and that it enter an order dismissing the alien's appeal from the order of this Service dated February 6, 1950.
It is further moved, That in the event the Board of Immigration Appeals does not grant the foregoing motion, it refer the case to the Attorney General for review pursuant to the provisions of 8 C.F.R. 90.5 (c).
Discussion: This is a motion filed pursuant to 8 C.F.R. 90.11 (b) wherein the Commissioner urges reconsideration and withdrawal of an order entered by this Board on April 6, 1951, granting the respondent herein the privileges of voluntary departure and preexamination and withdrawing the outstanding order and warrant of deportation. The Commissioner in the alternative urges the referral of this Board's decision to the Attorney General for review pursuant to 8 C.F.R. 90.12 (c) in the event the motion is denied.
The facts of the case are fully stated in our opinion of April 6, 1951. Briefly they relate to a native and citizen of Lebanon, male, married, 36 years of age who originally arrived in this country on August 18, 1939, and was admitted for a period of 60 days as a visitor for business. He was granted several extensions of stay the last of which expired January 1, 1946. He voluntarily departed from the United States on September 22, 1945. The respondent last entered the United States on September 7, 1946, and was admitted as a temporary visitor for 6 months. Thereafter he was denied extensions of temporary stay. The respondent married a citizen of the United States on October 11, 1946. A warrant was issued for his arrest in the present proceedings on June 24, 1948, and hearings were held on July 19, 1949.
The Commissioner takes issue with the conclusions reached by this Board in our opinion of April 6, 1951, wherein we relied upon the decision of the Supreme Court in McGrath v. Kristensen ( 95 L. Ed. 165, 71 S. Ct. 224, December 11, 1950) to find that the respondent did not come within the category of those ineligible to citizenship as that term is used in sections 13 (c) and 28 (c) of the Immigration Act of 1924, as amended, notwithstanding the fact that on November 4, 1942, he filed an application for relief from military service (DSS Form 301) under section 3 (a) of the Selective Training and Service Act of 1940, as amended. We reasoned as follows:
From the time of his entry in 1939 until his departure in 1945 respondent was in the status of a visitor for business and he left the country in accordance with the terms of his temporary admission. As the Supreme Court has read the Selective Training and Service Act of 1940, the respondent was not a "resident" of the United States when he applied for relief from military service. The respondent was in the country on a valid, legal status, recognized by the Government as such. Since he was not "residing" in the country, he was not liable for military service; and his application for relief from such service "was of no effect."
The Commissioner of Immigration and Naturalization in support of his motion urged through counsel that the Kristensen case ( supra), is distinguishable from the case at bar and that it supports the position taken by the Immigration Service. Counsel during oral argument before this Board reasoned that the Selective Training and Service Act of 1940, as amended, and the Executive order issued pursuant thereto did not define who was a "male person residing in the United States" liable for training and service after December 20, 1941; that the definition of "resident" as contemplated in the statute was left to administrative determination and that under the regulations issued administratively the respondent was "a male person residing in the United States" at the time he filed his application for relief from military service on November 4, 1942.
Section 3 (a) of the Selective Training and Service Act of 1940, 54 Stat. 885, ch. 720, as amended (December 20, 1941) 55 Stat. 844, 845, ch. 602, 50 USCA Appx. § 303 (a), FCA title 50, Appx. § 303 (a) provides in part:
"Except as otherwise provided in this Act, every male citizen of the United States, and every other male person residing in the United States * * * 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."
Executive Order 8545, September 23, 1940, 5 F.R. 3786 of September 25, 1940.
32 C.F.R., Cum. Sup., 611.12, 611.13, 611.21, 611.26, and 611.28. For the text of these regulations see 7 F.R. 855, 2084, and 7222.
We concede that insofar as the Selective Training and Service regulations are concerned, counsel's argument in behalf of the Immigration Service is technically correct when applied to the facts of the case before us. However, we interpret the Kristensen case ( supra), as having a much broader concept outside of the regulations in question. This broader concept in our opinion is found in the language used by Justice Reed in the Kristensen case ( supra), when he said that the Selective Training and Service regulations effective February 7, 1942 ( 7 F.R. 855), "either made an alien in Kristensen's situation a nonresident of the United States for the purpose of the Selective Training and Service Act between February 7 and May 17, 1942 or they were nondeterminative of status in that period." In the absence of a determinative regulation the meaning of the word "residing" in section 3 (a) requires examination. The meaning of that word, of course, depends upon the meaning of the word "residence." The Court after citing several references which construed the term "residence" concluded by saying "when we consider that section 3 (a) was obviously intended to require military service from all who sought the advantages of our life and the protection of our flag, we cannot conclude, without regulations so defining residence that a sojourn within our borders made necessary by the conditions of the times was residence within the meaning of the statute."
The factual situation which led to the Supreme Court's conclusion aforementioned, is material to an understanding of the issue before us. Kristensen, a Danish citizen, entered the United States as a temporary visitor for 60 days on August 17, 1939, to attend the New York World Fair. Two successive extensions of stay, each for 6 months, were applied for and granted by the Immigration and Naturalization Service but prior to his filing an application for military relief (DSS Form 301) economic necessity compelled him to become employed thereby violating his visitor's status. A warrant of deportation issued in 1941 was outstanding at the time Kristensen filed the DSS Form on March 30, 1942. There was an affirmative showing that the outbreak of World War II prevented Kristensen's return to Denmark and it was for this reason that the deportation process was stayed for the duration of the hostilities.
Thus the Supreme Court was confronted with the case of an alien who had been administratively adjudicated as unlawfully residing in the United States by the very agency of the Government primarily charged by the Immigration Act of 1924 with the responsibility of determining whether after admission as a temporary visitor he had remained in the United States for a longer time than permitted under the said Act or regulations made thereunder. Accordingly two basic factors were presented. First Kristensen was unlawfully "residing" in the United States under the immigration laws at the time he filed his application for relief from military service. Second, under section 3 (a) of the Selective Training and Service Act of 1940 Kristensen was liable for military service if "residing" in the United States within the meaning of the act. The Selective Training and Service Act, however, did not define who was a "male person residing in the United States" liable for training and service after its amendment December 20, 1941. It was necessary for the Supreme Court to turn to the administrative regulations authorized under the act. They found in the alternative that under applicable regulations an alien in Kristensen's situation was either a nonresident of the United States between February 7, 1942, and May 7, 1942, for the purpose of the Selective Training and Service Act or that the applicable regulations were nondeterminative of his status during the period. The latter alternative made it necessary for the Supreme Court to interpret the term "residing" as used in section 3 (a) of the Selective Training and Service Act, as amended. It is clear from a reading of the penultimate paragraph of Justice Reed's opinion that the overall purpose of the Selective Training and Services Act together with the fact that exigencies of war made Kristensen's extended sojourn necessary were duly considered in reaching their conclusion.
The case at bar, however, presents only the first basic factor referred to above. The respondent originally entered the United States on August 18, 1939, one day after Kristensen. Unlike Kristensen he was granted successive extensions of staying by the Immigration and Naturalization Service which extended to January 1, 1946. He voluntarily departed from the United States on September 22, 1945, while still in the lawful status of a visitor for business. At the time the respondent filed an application for relief from military service on November 4, 1942, the records of the agency of the Government primarily charged under the Immigration Act of 1924 with the responsibility of determining his immigration status showed that he was to be considered as a "temporary visitor" until March 1, 1943. In fact the respondent, under date of August 30, 1942, wrote the then Deputy Commissioner thanking the Department of Justice "for the extension of (his) temporary stay to March 1, 1943, and for the permission to continue (his) employment." He referred to the fact that he had been placed by the "United States Farm Employment Service," that he was "giving a hand to the farmer's harvest as I heard they were short on help when I registered" and that he "notified the local (draft) board the first day of my arrival here." Thus it is clear from the record that both the respondent and the agency of the Government primarily charged by law with the responsibility construed his status to be that of a nonresident alien at the time he filed the pertinent application. Under the circumstances it would be extremely arbitrary and capricious to construe the congressional use of the term "residing" found in section 3 (a) of the Selective Training and Service Act of 1940 to include all "temporary visitors," regardless of the surrounding circumstances, or their own attitude and that of the responsible Executive Agency toward their presence here.
It is our considered opinion in light of the foregoing that we would be doing complete violence to section 3 (a) of the Selective Service statute if we construed the phrase "residing in the United States" as applicable to the respondent. Our position is amply supported by Mr. Justice Jackson's concurring opinion in the Kristensen case ( supra). He repudiated a prior opinion of his (39 Op. A.G. 504) interpreting the very same clause of the Selective Training and Service Act with which we are here concerned. Justice Jackson stated that his opinion as Attorney General did not consider our diplomatic history which consistently asserted the rights of our citizens to be free from "seizure for Military duty by reason of temporary and lawful presence in foreign lands." He mentioned the fact that "if an alien is not a mere sojourner but acquires residence here in any permanent sense, he submits himself to our law and assumes the obligations of a resident toward this country." He reached the same conclusion as we do; namely, that "the language of the Selective Training and Service Act can be interpreted consistently with this history of our international contentions." Under similar circumstances Judge Hall in Ex Parte Ghosh, 58 F. Supp. 851, 854 (D.C.S.D., Cal., November 16, 1944), so forcibly said, "after all, it is one government and I do not think it is within the contemplation of our system that a man should be fish before one department and fowl before another * * * it would require, I think, what John Marshall called refined and metaphysical reasoning (to subject an alien student visitor to Military Service on behalf of the United States)." These views we consider basic in adjudicating this case.
There is one point in the argument of counsel for the Immigration Service not included in those referred to above and which we think should be answered. Counsel for the Service maintains that the distinction he has raised with respect to Kristensen case ( supra), was recognized by this Board in Matter of K----, A-9623678, April 17, 1951. The alien in Matter of K---- ( supra), last entered the United States on January 1, 1943, and was admitted as a seaman for a period of 29 days or the length of time his vessel was in port whichever period was the shorter. He remained after his vessel departed. When he filed an application for relief from military service as an alien of a neutral country, Finland, on February 6, 1943, he was residing here in an unlawful status.
Thus we were confronted with the same basic factors as the Kristensen case presented; namely, an unlawfully resident alien who was liable for Military Service if "residing" in the United States within the meaning of the Selective Training and Service Act. The extent of our findings in that case parallel those of the Supreme Court in the Kristensen case, namely, that the applicable regulations under the Selective Training and Service Act "specifically excepts a nondeclarant alien who enters the United States lawfully (K---- entered lawfully as a seaman) from registering or filing an application for determination of residence (Form 302) until 3 months after the date of his entry if he entered subsequent to May 16, 1942." Since K---- lawfully entered on January 1, 1943, and was a nondeclarant alien, there was no obligation on his part under the Selective Service regulations to register or file for a determination of residence until April 1, 1943. We found on the basis of the Selective Service regulations in effect at the time of K----'s entry that when he filed his application for relief on February 6, 1943, he was not "residing in the United States" within the meaning of the Selective Service Act because the 3-month period of grace had not expired.
The respondent herein, however, maintained the lawful status of a temporary visitor and it was so recognized by the responsible agency of the Government for the entire period of his sojourn August 18, 1939, through September 22, 1945. Accordingly counsel's argument in behalf of the Service on this point is without merit.
Order: The motion is hereby denied. Our opinion of April 6, 1951, is hereby affirmed.
The decision and order of the majority of the Board of Immigration Appeals dated August 2, 1951, are hereby disapproved.
The decision by the Supreme Court in the Kristensen case ( 340 U.S. 162, 1950), in my opinion leads to the conclusion that the respondent is ineligible for citizenship. If that be so, his ineligibility disqualifies him for preexamination inasmuch as he is inadmissible to the United States (8 U.S.C. 213 (c)) and cannot obtain issuance of an immigration visa (8 U.S.C. 202 (f)).
The comment by Mr. Justice Jackson in his concurring opinion in the Kristensen case that "We should (not) construe our legislation to penalize or prejudice such aliens (here for temporary residence) for asserting a right * * *," seems not to have been transgressed. Examination of the Selective Service regulations discloses that the right of a temporary resident has been fully protected by provision promulgated February 7, 1942, for an application of determination of status (32 C.F.R. 611.21). The respondent made no such application. On the contrary, he sought exemption from liability to service by asserting his claim that he was a neutral alien. Such application under 50 U.S.C. 303 operated to bar him from becoming a citizen of the United States.
Under 32 C.F.R. 611.13, an alien who was not a member of a class specifically exempted, to which the respondent makes no claim, and who was in the United States after May 16, 1942, or for more than 3 months after the date of his entry, whichever is the later, is declared to be residing in the United States within the meaning of the Selective Training and Service Act of 1940. Prima facie, therefore, he was liable to serve, and on November 4, 1942, he asserted his status as a neutral alien as basis of his application for relief from such liability. The fact that for the purpose of the immigration laws he was accorded the status of a temporary visitor is, in my opinion, beside the point.
I believe that so much of our order of April 6, 1951, which grants the respondent the privilege of preexamination should be withdrawn.
In accordance with the provisions of Title 8, Code of Federal Regulations, section 90.12 (c) this case is certified to the Attorney General for review of this Board's decision.