A-3235686
Decided by Board September 26, 1950 Decided by Acting Attorney General December 20, 1950 Decided by Board February 1, 1951
"Neutral alien," claiming exemption from service in United States armed forces — Ineligibility for United States citizenship — Section 3 (a) of the Selective Training and Service Act of 1940, as amended — Effect of volunteering for induction thereafter.
A "neutral alien," who last entered the United States as a stowaway on October 24, 1938, with intent to reside here permanently, and who claimed exemption from service in United States armed forces as a "neutral alien" by filing DSS Form 301 on May 6, 1942, rendered himself ineligible to citizenship thereafter under the provisions of section 3 (a) of the Selective Training and Service Act of 1940, as amended, it being clear that he had full knowledge of the attendant consequences for filing such a claim. (See Moser v. U.S. of A., 341 U.S. 41, 71 S. Ct. 553.) He was bound by his elective act and his subsequent withdrawal of such claim and application for voluntary induction did not remove the basis for his ineligibility to citizenship. ( McGrath v. Kristensen, 340 U.S. 162, held not applicable.)
CHARGE:
Warrant: Act of 1924 — No visa.
BEFORE THE BOARD
(September 26, 1950)
Discussion: This is a motion to reconsider an order directing the respondent's deportation to Portugal on the warrant charge stated above. Oral argument on the motion was granted July 25, 1950. Relief is sought under the provisions of section 19 (c) of the Immigration Act of 1917, as amended by Public Law 863 of the 80th Congress.
Respondent, a native and citizen of Portugal, 42 years of age, arrived in the United States on October 29, 1938, as a stowaway. Respondent filed a DSS Form 301 on May 6, 1942, and secured exemption from military service under the Selective Training and Service Act of 1940 as a national of a neutral country. During April of 1944 respondent sought to withdraw this claim for exemption and to volunteer for military service. Upon receiving a physical examination for induction, he was rejected. He married a native of Puerto Rico, a citizen of the United States, in 1945. The record establishes that the respondent's wife is unemployed and solely dependent upon him for support.
No issue is raised as to the respondent's deportability. The only question before us is whether the respondent can legally adjust his immigration status. Counsel in requesting reconsideration contends that when respondent volunteered for induction he was thereafter no longer ineligible for citizenship notwithstanding that he subsequently was rejected for military service by the armed forces. We find no merit to counsel's contention.
It has been held that an attempt to withdraw DSS Form 301 filed under section 3 (a) of the Selective Training and Service Act of 1940, as amended, short of actual service in the armed forces, leaves the neutral alien ineligible to naturalization. Matter of O----, A-1141799 (April 29, 1946); Matter of B---- N----, A-3180834 (September 13, 1949). An alien ineligible for citizenship cannot be granted suspension of deportation under the provisions of section 19 (c) of the Immigration Act of 1917, as amended. Matter of G----, A-3591839 (July 12, 1946).
Respondent elected in May of 1942 not to serve in the armed forces of the United States. His wish was respected by the Selective Service officials. He was accorded the exemption provided by section 3 (a) of the Selective Training and Service Act. Although he applied for voluntary induction in April of 1944, we must hold that he is bound by his election in May 1942 and that he is barred from the relief he seeks. Matter of J----, A-4558054, 2 IN Dec. 545 (A.G. June 9, 1947); Matter of W----, A-5113737, 2 IN Dec. 899 (October 14, 1947).
The respondent was 35 years of age when he executed the application for relief from military service as a neutral alien. He has resided in this country intermittently for a total of 11 years. He should have had sufficient intelligence and knowledge to know or inform himself of his various responsibilities and obligations under the law. Under the circumstances, we find no merit in the arguments advanced by counsel. Cf. In re Martinez, 73 F. Supp. 101 (D.C.W.D. Pa., July 23, 1947). The motion will be denied.
Order: It is ordered that the motion be and the same is hereby denied.
CERTIFICATION TO ATTORNEY GENERAL
(November 13, 1950)
In accordance with the provisions of section 90.12 (a) of title 8, Code of Federal Regulations, the decision and order of the Board dated September 26, 1950, are hereby certified to the Attorney General for review.
The question involved is whether the above-named alien, a native and citizen of Portugal, a neutral country, can legally adjust his immigration status after having claimed exemption from United States military service during World War II.
The applicable provision of the Selective Training and Service Act (50 U.S.C. App. 303 (a)) reads as follows:
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: * * *.
The applicable provision of the Immigration Act of May 26, 1924, as amended October 29, 1945 (8 U.S.C. 224 (c)), reads as follows:
The term "ineligible to citizenship," when used in reference to any individual, includes an individual who is debarred from becoming a citizen of the United States under sections 703 and 706 of this title, or section 303 (a) of appendix to Title 50, or under any law amendatory of, supplementary to, or in substitution for, any such sections.
The Immigration Act of February 5, 1917, as amended and supplemented (8 U.S.C. 155 (c) (2)), provides that the Attorney General may suspend deportation of certain aliens if they are "not racially inadmissible or ineligible to naturalization in the United States * * *." [Italics supplied.]
Mr. C---- last entered the United States on October 24, 1938, as a stowaway with intent to reside here permanently but without an immigration visa. He is, therefore, subject to deportation.
On October 16, 1940, Mr. C---- registered for Selective Service. On May 6, 1942, he claimed exemption from military service as a national of a neutral country. On March 12, 1943, a warrant for his arrest in deportation proceedings was issued under the Immigration Act of 1924 — No visa. On January 17, 1944, Mr. C---- was granted a hearing on the warrant in deportation proceedings. The findings of the presiding inspector, at this hearing, recommending deportation, at Government expense, were served on Mr. C----'s representative on April 21, 1944. Mr. C---- filed a withdrawal of his claim for exemption from military service, April 30, 1944, and applied for voluntary induction. He was examined and found physically disqualified on June 5, 1944.
Mr. C----, on May 11, 1945, married a native-born citizen of the United States. No children have been born to this marriage.
The Board of Immigration Appeals has heard oral argument, at Mr. C----'s request, on three occasions and, in order, has affirmed the deportation, dismissed an appeal of the denial to reopen, and denied a motion to reconsider the deportation order.
The alien, through counsel, on November 11, 1950, filed a petition with the Attorney General requesting the relief denied him by the Immigration and Naturalization Service and by the Board of Immigration Appeals. The petitioner contends that he had an elderly mother in Portugal who was financially dependent upon him and that he knew of no way she could get help if he were inducted into the Army. While this may be an appealing factor it is not determinative of the rights and equities in the matter. Many American boys, as well as some from other lands, who responded to the call to colors did so with considerable financial sacrifice and much concern for the welfare of their dependents at home. Nevertheless, they served the country when needed despite personal and domestic hardships.
The petitioner further contends that he lacked advice of any kind which would enlighten him as to the consequences of his executing and filing DSS Form 301. This contention is not borne out by the record which reflects that the petitioner at his original hearing on the warrant in deportation proceedings testified as follows:
Q. Did you know that by filing that request for relief from military service, you could never become a citizen of the United States?
A. Yes.
Q. Who told you that by filing that form you could never become a citizen of the United States?
A. The clerk at the local board.
At his reopened hearing, May 5, 1945, ordered to discover, among other things, whether Mr. C---- fully understood the consequences of his request for exemption from military service, he testified as follows:
Q. Did you file that form with the intention or hope of evading military service?
A. I did not intend to evade military service. I was misled.
Q. You did know, however, that you would be forever ineligible to United States citizenship by filing DSS Form 301. Did you not?
A. Yes. I was told so at the local board.
By the above-quoted provision of the Selective Training and Service Act, aliens who elected to claim the benefits thereunder were required to assume the burdens and responsibilities thereof. Mr. C---- elected to claim the benefits; namely, exemption from military service. His wish was respected and he was, in fact, accorded the exemption provided in such cases. By his own testimony on two separate occasions it is abundantly clear that in claiming exemption from military service C---- did so with full knowledge of the attendant consequences of his act; namely, that he would thereafter be debarred from becoming a citizen of the United States. The language of the statute seems plain and I think that Congress intended that an alien who elected to claim exemption from United States military service with full knowledge of the consequences of his act should be bound by his election. To hold otherwise would require reading into the act provisions which do not exist.
On the basis of the above facts, the applicable provision of the Selective Training and Service Act ( supra), and the applicable provision of the Immigration Act of May 26, 1924, as amended ( supra), it is my conclusion that the alien is not eligible to United States citizenship. Being ineligible to citizenship the alien is thereby ineligible for suspension of deportation under section 19 (c) of the Immigration Act of February 5, 1917 (8 U.S.C. 155 (c) (2)). Therefore, the question before me; namely, can the above-named alien legally adjust his immigration status, must be answered in the negative. The petition of the alien is hereby denied and the order and decision of the Board of Immigration Appeals, dated September 26, 1950, are hereby approved.
Discussion: This case is before us on motion requesting reconsideration of the order for the alien's deportation on the charge that he is in the United States in violation of the act of 1924 in that he was not in possession of a valid immigration visa at the time of entry. The alien, a native and citizen of Portugal, about 42 years of age, entered the United States on October 29, 1938, as a stowaway. On May 6, 1942, he signed a DSS Form 301 requesting exemption from military service under the Selective Training and Service Act of 1940 as a national of a neutral country. During April 1944 he sought to withdraw the claim for exemption and volunteered for military service; however, he was rejected for service following a physical examination.
The alien is married to a United States citizen. Discretionary relief looking toward adjustment of his immigration status in this country has been denied him as he is ineligible for naturalization because of seeking relief from military service in the armed forces.
Counsel seeks reconsideration of the case on the basis of the decision of the United States Supreme Court in J. Howard McGrath v. Peder Kristian Kristensen, decided December 11, 1950. Counsel in his motion fails to point out any similarity between the instant case and the Kristensen case. The Kristensen case was concerned with a neutral alien who had been admitted to the United States temporarily. The issue in that case was whether Kristensen was residing in the United States. In the instant case, the subject alien entered this country as a stowaway with the intent of remaining permanently in the United States. The issue in the Kristensen case is not present in the instant case. In addition, this case was exhaustively reviewed by the Acting Attorney General, and on December 20, 1950, he affirmed an order of this Board denying the request for further consideration. This decision was made after the decision of the Supreme Court in the Kristensen case.
In view of the foregoing factors, the request for stay of deportation, and for further consideration, and for oral argument will be denied.
Order: It is ordered that the motion requesting further consideration and oral argument be and the same is hereby denied.
It is further ordered, That a stay of deportation be denied.