A-8945453.
Decided by Board August 25, 1955.
Excludability — Section 212 (a) (22) of Immigration and Nationality Act — Ineligible to citizenship; section 101 (a) (19) of the act.
(1) A native-born United States citizen who lost citizenship under section 401 (g) of the Nationality Act of 1940 by reason of desertion from the Armed Forces during time of war for which he was convicted by general court-martial on March 6, 1946, and dishonorably discharged, and who has never been restored to active duty, is an alien permanently debarred from becoming a citizen and within the statutory definition of "ineligible to citizenship" contained in section 101 (a) (19) of the Immigration and Nationality Act. He is, therefore, excludable under section 212 (a) (22) of the act.
(2) The fact that such an alien may reacquire United States citizenship under section 349 (a) (8) of the act if he is restored to active duty in the Armed Forces does not affect his present inadmissibility since his eligibility for repatriation under that statute depends upon circumstances over which he has no control and not solely upon affirmative action by him.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (22) — Alien ineligible to citizenship.
BEFORE THE BOARD
Discussion: The appellant, male, married, 30 years of age, a native of the United States, appeals from an order of the special inquiry officer dated April 28, 1955, excluding him under section 212 (a) (22) of the Immigration and Nationality Act as an alien ineligible to citizenship. It is urged on appeal that the decision and order of the special inquiry officer have no basis in law in that appellant is eligible to United States citizenship and, therefore, not excludable under the aforestated provision of law.
The facts of the case are fully stated in the opinion of the special inquiry officer and are incorporated herein by reference. Briefly, they establish that appellant was born at La Habra, California, on August 20, 1924. He was inducted into the Army of the United States on April 28, 1945. He deserted at Camp Roberts, California, on or about May 12, 1945. He was convicted of desertion by a general court-martial on March 6, 1946. The sentence of the general court-martial was approved March 7, 1946. Exhibit 2, a copy of the general court-martial order establishes that the period of confinement at hard labor was set at three years and appellant's dishonorable discharge suspended until he was released from confinement. There is a showing that appellant served approximately 18 months of the three-year sentence and was dishonorably discharged at Ft. Leavenworth, Kansas, apparently in the fall of 1947. He has never been restored to active duty.
The appellant departed from the United States for a short visit to Mexico on January 22, 1955. He applied for admission at the port of San Ysidro, California, on the same date and was held for a special inquiry hearing. Pursuant to this hearing he was excluded.
The appellant maintains that he is not inadmissible under section 212 (a) (22) of the 1952 act because he is eligible for citizenship. He bases his eligibility to United States citizenship upon the provisions of section 349 (a) (8) of the Immigration and Nationality Act. It is appellant's position that the term "ineligible to citizenship" as used in section 212 (a) (22) of the Immigration and Nationality Act and as defined by section 101 (a) (19) of that act relates to "an individual who is, or was at any time, permanently debarred from becoming a citizen of the United States * * * under any section of (the) Act" and since there is a proviso in section 349 (a) (8) ( supra) providing for repatriation, appellant's citizenship is not irrevocably lost, but is expressly made restorable by fulfillment of one of the conditions therein stated. It is argued that under these circumstances appellant cannot be "an individual who is, or was at any time, permanently debarred from becoming a citizen of the United States" and therefore ineligible to citizenship, so as to make him excludable from the United States, since he is eligible to citizenship by reason of the proviso found in section 349 (a) (8) ( supra).
Section 349 (a) — From and after the effective date of this Act a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by — * * * (8) deserting the military, air, or naval forces of the United States in time of war, if and when he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military, air, or naval forces: Provided, That, notwithstanding loss of nationality or citizenship under the terms of this or previous laws by reason of desertion committed in time of war, restoration to active duty with such military, air, or naval forces in time of war or the reenlistment or induction of such a person in time of war with permission of competent military, air, or naval authority shall be deemed to have the immediate effect of restoring such nationality or citizenship heretofore or hereafter so lost.
Section 101 (a) — As used in this Act — * * * (19) 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 ( 54 Stat. 885; 55 Stat. 844), or under section 4 (a) of the Selective Service Act of 1948, as amended ( 62 Stat. 605; 65 Stat. 76), 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 appellant, under the provisions of section 401 (g) of the Nationality Act of 1940, lost his United States citizenship acquired at birth by reason of his dishonorable discharge from the Army of the United States after his conviction by a court-martial for desertion in time of war ( Matter of H----, VP-448327, 4 IN Dec. 540 (B.I.A., March 12, 1952)). Accordingly, appellant is an alien who seeks to enter the United States and is subject to the excluding provisions of the Immigration and Nationality Act of 1952. Section 212 (a) (22) of the Immigration and Nationality Act, among other things, excludes an alien "ineligible to citizenship" unless he is seeking to enter as a nonimmigrant. The appellant seeks to return to his residence in the United States. The term "ineligible to citizenship" as defined by section 101 (a) (19) of the 1952 act is confined in its reference to such aliens as draft evaders, avoiders of military service or deserters from the Armed Forces of the United States. The proviso relied upon by appellant is found in a chapter of the Immigration and Nationality Act (Chapter 3 of Title 3) relating to the loss of nationality by either a native-born or a naturalized citizen. Appellant's excludability, however, is based upon a prohibition to his naturalization by reason of his desertion from the Armed Forces of the United States. This provision is found in Chapter 2 of Title 3 (section 314), a chapter relating to naturalization.
That portion of section 314 ( supra) pertinent here reads "A person who, at any time during which the United States has been or shall be at war, deserted or shall desert the military, air, or naval forces of the United States, * * * shall, upon conviction thereof by a court martial or a court of competent jurisdiction, be permanently ineligible to become a citizen of the United States * * *." In other words, appellant, now an alien, is excludable because he is permanently ineligible for naturalization. The fact that there is a remote possibility of his expatriation becoming a nullity at sometime in the future does not affect his status quo as of the time he seeks to enter. The bar to appellant regaining his citizenship may not be overcome solely by affirmative action on his part. His eligibility for repatriation depends upon circumstances over which he has no control. Now he is of a class described by the statute as permanently debarred from naturalization.
It is true that section 101 (a) (19) employs the term "permanently debarred from becoming a citizen" while section 314 relates "permanently ineligible to become a citizen." We are of the opinion that the quoted terms are in pari materia and must be construed in like manner with reference to each other. We find no error in the decision of the special inquiry officer. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.