56172/580
Decided by Board November 2, 1945.
"Draft dodger" — Alien — Excludability — Departure to escape United States Military service — Section 3 of the Immigration Act of 1917, as amended — Retroactive effect.
The excluding provisions of section 2 of the act approved September 27, 1944, amending section 3 of the Immigration Act of 1917, apply to all aliens who come within its terms, irrespective of whether the operative facts occurred before or after September 27, 1944.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917, as amended — Departed to avoid United States military service.
BEFORE THE BOARD
Discussion: The appellant was born in San Francisco, Calif., on June 28, 1916, his parents being nationals of Mexico. He made his home in the United States until November 25, 1941, when he abandoned that domicile and took up permanent residence in Mexico. While living in the United States and while still an American citizen, the appellant registered under the Selective Training and Service Act of 1940 and thereafter received order number 1067. In June 1941 he received his Selective Service questionnaire and on August 20, 1941, he was classified 1A by his local draft board. About 3 months later, on November 13, 1941, he was directed to report for a local physical examination which he passed successfully.
In the meantime, however, the appellant had gone on a trip to Mexico for the purpose of renouncing his American nationality pursuant to the provisions of section 401 (f) of the Nationality Act of 1940. On October 30, 1941, he took the oath of renunciation before the American Consul at Nogales, Sonora, Mexico. His expatriation, apparently under State Department regulations, did not become effective until the Department of State in Washington approved the renunciation on November 17, 1941.
After being advised that Washington had approved his renunciation of American nationality, the appellant notified his local draft board of that fact and on November 26, 1941, in accordance with the then existing statutory provisions, he was reclassified 4C — a classification then reserved for nondeclarant aliens. The local draft board, it seems, was not advised by the appellant of the fact that on November 25, 1941, he had abandoned his residence in the United States and had established a Mexican domicile, for on January 14, 1942, after Pearl Harbor and the amendment of the Selective Training and Service Act subjecting nondeclarant aliens as well as declarant resident aliens to liability for military service, the appellant was again placed in class 1A. The appellant appealed from this reclassification from Mexico by letter dated January 19, 1942, pointing out in the letter the salient facts with respect to his change of nationality and residence. The local draft board kept the appellant's name on its rolls for some time and in fact at one time listed him as a delinquent. Finally, however, on June 10, 1942, after a hearing before the draft board at which the appellant was represented by counsel, his registration was cancelled on the ground that he had renounced his American citizenship and had left the United States.
Such action was apparently in accord with section 3 (a) of the Selective Training and Service Act of 1940 which then provided that only aliens who had declared their intentions to become American citizens were liable for training and service in the armed forces.
Section 3 (a) of the Selective Training and Service Act of 1940 was so amended on December 20, 1941, by section 2 of Public Law 360, 77th Cong.
The first sentence of section 3 (a) of the Selective Training and Service Act of 1940, as amended by the act of December 20, 1941, reads: "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 * * * shall be liable for training and service in the land or naval forces of the United States."
The appellant has been denied the local crossing privilege under that clause of section 3 of the act of February 5, 1917, as amended, which excludes "persons who have departed from the jurisdiction of the United States for the purpose of evading or avoiding training or service in the armed forces of the United States during time of war or during a period declared by the President to be a period of national emergency." While this clause was added to the 1917 act (by section 2 of the act approved September 27, 1944 ( 58 Stat. 746)) subsequent to the appellant's change of domicile from this country to Mexico, it does have retroactive effect and applies to all aliens who come within its terms irrespective of whether the operative facts occurred prior or after the effective date of the amendatory legislation. See Luria v. United States, 217 Fed. 261 (C.C.A. 2d, 1921), cert. den. 257 U.S. 635 (1921).
Notwithstanding the retroactive effect of this amendment to section 3 of the 1917 act, it is our opinion that the appellant, whether or not he actually intended to evade or avoid military service at the time of his departure on November 21, 1941, is not subject to its excluding provisions. When he left this country and established a home in Mexico he was no longer an American citizen. He was an alien, and what is more important — a nondeclarant alien. As such, he was specifically exempted by the then existing provisions of section 3 (a) of the Selective Training and Service Act from liability for training and service in the armed forces. Under those provisions he could have continued to reside in the United States without being subject to military service. Likewise, he could have departed to another country and established a residence there, as he did, without running afoul of the then existing provisions or policy of the Selective Training and Service Act or any other law. Accordingly, since at the time of his departure on November 25, 1941, the appellant was not subject to liability for military service, it is difficult to say as a matter of law that he departed for the purpose of evading or avoiding such service. We find that he is not inadmissible under section 3 of the act of February 5, 1917, as amended by section 2 of the act approved September 27, 1944.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in the United States in June 1916;
(2) That on November 17, 1941, the appellant's renunciation of American citizenship before the American Consul on October 30, 1941, was approved by the Department of State;
(3) That on November 25, 1941, while the appellant was still classified 1A in the draft, he left the United States and established a domicile in Mexico;
(4) That the appellant seeks admission as a local crosser.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the appellant lost his American citizenship under section 401 (f) of the Nationality Act of 1940 on November 17, 1941, and is now an alien;
(2) That under section 3 of the act of February 5, 1917, as amended, the appellant is not inadmissible to the United States as one who has departed from the jurisdiction of the United States in order to avoid training and service in the armed forces.Order: It is ordered that the alien be admitted as a local crosser for the duration of the validity of his documents, no visit to exceed 1 day.