A-3591839.
Decided by Board October 10, 1951.
"Neutral alien" — when filing of claim to exemption from military service held not to render alien ineligible for naturalization — Section 3 (a) of the Selective Training and Service Act of 1940, as amended — Moser v. United States, 341 U.S. 41.
Under the ruling of the Supreme Court in Moser v. United States ( 341 U.S. 41, 71 S. Ct. 553, April 9, 1951), it must be held in the instant case (which presents the exact factual situation as the Moser case on this issue) that this Swiss national's ("neutral alien") filing of DSS Form 301, revised, claiming exemption from military service, did not render this alien ineligible to citizenship in the United States under the provisions of section 3 (a) of the Selective Training and Service Act of 1940, as amended, for he did not knowingly and intentionally waive his rights to citizenship under the circumstances.
CHARGE:
Warrant: Act of 1924 — Remained longer — visitor.
BEFORE THE BOARD
Discussion: The case comes forward on motion of the alien's representative requesting that we reconsider the outstanding deportation order in the case.
Discussion as to Deportability: The record relates to a native and citizen of Switzerland, 35 years old, male, who last entered the United States at the port of New York on April 20, 1939, ex-S.S. Queen Mary and was admitted as a temporary visitor for a period not to exceed 30 days after termination of employment at the New York World's Fair. The last extension of temporary stay expired March 1, 1942, but the alien has continued to reside in the United States. It is concluded he is subject to deportation under the Immigration Act of 1924, on the charge stated in the warrant of arrest.
Discussion as to Eligibility for Suspension of Deportation:
On June 1, 1943, the alien married a naturalized citizen of the United States. They have two minor children, native-born citizens of the United States. The wife and children are wholly dependent upon the alien for support. He is employed as a sausage maker at a salary of about $100 a week. Assets total approximately $10,700. It is clear that the alien's deportation would result in a serious economic detriment to his citizen wife and two minor children.
A check of the appropriate local and Federal records has failed to reveal any arrest or criminal record. Inquiry has disclosed that he has no connection with subversive groups. Witnesses have been produced to establish that he has been a person of good moral character for more than 5 years past, and that an independent character investigation is entirely favorable.
In connection with the registration under the Selective Training and Service Act of 1940, the alien made inquiry of the Legation of Switzerland and on July 7, 1943, received a letter from the Swiss Legation advising him that in accordance with the provisions of article II of the Treaty of Friendship, Commerce and Extradition concluded between the United States and Switzerland on November 25, 1850 ( 11 Stat. 587), the Legation had requested the Department of State on December 7, 1942, to exempt him from liability for personal military service with the United States Armed Forces. The Legation forwarded to him two copies of DSS Form 301, revised, for execution and filing with his local draft board to complete the exemption procedure. The Legation further advised that through filing of this DSS Form 301, revised, he would not waive his right to apply for American citizenship papers.
When the case was previously considered, it was held that the filing of the claim to exemption debarred the alien from becoming a citizen of the United States under the provisions of section 3 (a) of the Selective Training and Service Act of 1940, as amended ( 55 Stat. 845; 50 U.S.C., app. supp. III), and that he was ineligible to citizenship under the provisions of section 28 (c) of the Immigration Act of 1924, as amended October 29, 1945 (8 U.S.C. 224 (c)). However, we are compelled to reverse our previous holding in this case that the filing of such a claim to exemption rendered the alien ineligible to citizenship in view of the decision of the Supreme Court in the case of Moser v. U.S. 95 Law ed., Adv. Op. No. 10, 457 (S. Ct., Oct. Term, April 9, 1951).
In the cited case the Supreme Court had before it the exact factual situation present in the instant case. There too the alien filed a claim of exemption on DSS Form 301, revised, after receiving precisely the same letter (dated February 18, 1944), from the Swiss Legation, that the alien in the instant case had received. Dealing with this situation the court held as follows:
The Legation's emphasis in referring to "Form 301, revised" is not without significance. The pertinent regulations promulgated by the President provided that to claim exemption an alien should file with his local Board Form 301, which became known as DSS 301, "Application by the Alien for Relief from Military Service." Above the signature on this form there appeared the statement, in obvious reference to the proviso of § 3 (a): "I understand that the making of this application to be relieved of such liability will debar me from becoming a citizen of the United States". "But shortly after § 3 (a) of the act was amended to the content with which we here deal, the Swiss Legation had protested to the Department of State that it was inconsistent with the treaty rights of Swiss citizens. And the Department had hastened to assure the Legation that the Government had no intention of abrogating treaty rights or privileges of Swiss nationals. The State Department, in conjunction with Selective Service Headquarters and the Swiss Legation, had then negotiated agreement upon a revised Form 301 which omitted the waiver quoted above and stated simply: "I hereby apply for relief from liability for training and service in the land or naval forces of the United States." A footnote of the revised form quoted pertinent parts of § 3 (a).
It was under these circumstances that petitioner signed a revised Form 301 on February 26, 1944, and was classified IV-C by his local Board.
* * * * * * *
But as we have already indicated, before petitioner signed the application for exemption, he had asserted a right to exemption without debarrment from citizenship. In response to the claims of petitioner and others, and in apparent acquiescence, our Department of State had arranged for a revised procedure in claiming exemption. The express waiver of citizenship had been deleted. Petitioner had sought information and guidance from the highest authority to which he could turn, and was advised to sign revised Form 301. He was led to believe that he would not thereby lose his rights to citizenship. If he had known otherwise he would not have claimed exemption. In justifiable reliance on this advice he signed the papers sent to him by the Legation.
* * * * * * *
Petitioner did not knowingly and intentionally waive his rights to citizenship. In fact, because of the misleading circumstances of this case, he never had an opportunity to make an intelligent election between the diametrically opposed courses required as a matter of strict law. Considering all the circumstances of the case, we think that to bar petitioner, nothing less than an intelligent waiver is required by elementary fairness, ( Johnson v. United States, 318 U.S. 189, 197, 87 L. Ed. 704, 711, 63 S. Ct. 549). To hold otherwise would be to entrap petitioner.
The holding in Moser v. U.S. ( supra), we deem to be conclusive and decisive of the question presented in the instant case, and it must, therefore, be held that the alien is not ineligible to citizenship in the United States and that, therefore, he is eligible to make application for suspension of deportation. It may be noted that during the proceedings the alien testified that had he not been advised by the Legation of Switzerland to claim exemption, he would have offered his service to the United States, and stated that he was ready and willing to serve in the Armed Forces of this country. In view of the alien's residence of approximately 12 years in the United States, his family ties of wholly dependent citizen wife and two minor children, and good moral character, we conclude that on the record, he is eligible for suspension of deportation. Suspension of Deportation — Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the alien is not ineligible for naturalization in the United States.
(2) That the alien has been of good moral character for the preceding 5 years.
(3) That deportation of the alien would result in serious economic detriment to his wife and two minor children, the wife a naturalized citizen and the children native born citizens.
(4) That after full inquiry no facts have been developed which would indicate that the alien is deportable under any of the provisions of law specified in section 19 (d) of the Immigration Act of 1917, as amended.Suspension of Deportation — Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.Order: It is ordered that deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
It is further ordered that the order entered by the Board on January 6, 1949, be and the same is hereby withdrawn.