A-9623678
Decided by Board April 17, 1951
"Neutral alien," claiming exemption from service in 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 is "residing" in the United States within meaning of Section 3 (a) ( supra), and pertinent regulations, so as to be liable for such service. (See 4 IN Dec. 5.)
A "neutral alien", who last entered the United States as a seaman on January 1, 1943, and who requested relief from military service here by filing Form D.S.S. 301 on February 6, 1943, was not "residing" in the United States on February 6, 1943 nor had he incurred "such liability" for military service here, within the meaning of Sec. 3 (a) of the Selective Training and Service Act of 1940, as amended (and pertinent regulations), because the three months' period of grace (following his entry after May 16, 1942 i.e. on January 1, 1943) had not expired on February 6, 1943, when he filed the above Form D.S.S. 301. (The Supreme Court decision in McGrath v. Kristensen, 340 U.S. 162, is discussed.)
CHARGE:
Warrant: Act of 1924 — Remained longer — Seaman.
BEFORE THE BOARD
Discussion: A motion filed on February 10, 1950, under section 90.11 (b), title 8, C.F.R., urged a reopening of the proceedings for the purpose of modifying our order of November 4, 1949, so as to grant the respondent the discretionary relief provided in section 19 (c) (2) of the Immigration Act of 1917, as amended, or, in the alternative, deferring execution of the order pending decision in the case of Kristensen v. McGrath, 179 F. (2d) 796 (C.A.D.C. December 19, 1949), a case then before the Supreme Court of the United States. This motion was considered by the Board on May 19, 1950. We deferred action in the case pending final decision in the Kristensen case ( supra). Counsel was granted oral argument on the motion on February 1, 1951. The case is now before us for consideration of counsel's motion of February 10, 1950, a decision in the Kristensen case having been handed down by the United States Supreme Court on December 11, 1950 ( 340 U.S. 162, 95 L. Ed. 165, 71 S. Ct. 224).
The respondent is a native and citizen of Finland, now approximately 43 years of age, male, married, of the white race, who has been found subject to deportation on the charge stated above. He has filed an application for suspension of deportation, alleging economic detriment to his native-born citizen wife and dependent citizen child. The record establishes that the respondent last entered the United States as a seaman on January 1, 1943. It also establishes that he executed Form DSS 301 on February 6, 1943, requesting relief from military service as an alien of a neutral country. It is here noted that Finland was a neutral country as of February 6, 1943, and so remained until she became a cobelligerent on April 5, 1945. The Assistant Commissioner denied the respondent's application for suspension of deportation on March 17, 1949, on the ground that he is ineligible for citizenship, having filed an application for relief from military service under section 3 (a) of the Selective Training and Service Act of 1940, as amended. He was granted the privilege of voluntary departure.
Discussion as to Respondent's Motion: Our previous refusals to grant discretionary relief under section 19 (c) (2) of the Immigration Act of 1917, as amended, were predicated upon a finding that the respondent executed Form DSS 301 on February 6, 1943, in which he requested relief from military service as an alien of a neutral country, to wit: Finland, thus making him ineligible for citizenship on a ground other than race, within sections 13 (c) and 28 (c) of the Immigration Act of 1924, as amended. ( Matter of J----, A-4558054 (BIA 1946, A.G. 1947) ( 2 IN Dec. 545)). Accordingly, the only issue now before us is whether the Supreme Court's ruling in the Kristensen case ( supra), sets aside our finding referred to above.
The Kristensen case concerns an alien, a citizen of Denmark, who entered the United States as a temporary visitor in August of 1939. He was prevented from returning to his native land within the 60 days allowed him at the time of his entry because of the outbreak of World War II. He secured 2 extensions of stay, each for 6 months. A warrant of deportation issued against him on May 15, 1941, but was stayed because hostilities made deportation impossible. As an alien subject to deportation, he filed DSS Form 301 on or about March 30, 1942, which resulted in his exemption from military service under the Selective Training and Service Act of 1940, as amended in 1941 (50 U.S.C.A., appendix sec. 301 et seq.). He married an American citizen in 1944 and in 1946 applied for suspension of deportation under section 19 (c) (2) of the Immigration Act of 1917, as amended. This Board denied the application solely because the exemption from military service barred his naturalization. Matter of K----, A-3781880 (June 27, 1947).
It is apparent from the foregoing that the facts of the case at bar parallel those of the Kristensen case. The question before the Supreme Court, insofar as eligibility for naturalization is concerned, was whether Kristensen was a "male person residing in the United States" within the meaning of section 3 (a) of the Selective Training and Service Act of 1940, at the time of his application for relief from military service on March 30, 1942. Since the substantive law did not define who was a "male person residing in the United States" liable for training and service after December 20, 1941, it was necessary for the Supreme Court to interpret the regulations promulgated pursuant to sections 310 (a) and (b) of the Selective Training and Service Act of 1940, as amended.
Sec. 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 U.S.C.A. 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."
32 C.F.R. 611.13. The regulations applicable here, effective February 7, 1942 ( 7 F.R. 855), are as follows:
"When a nondeclarant alien is not residing in the United States. (a) A male alien who is not in or hereafter enters the United States who has not declared his intention to become a citizen of the United States is not `a male person residing in the United States' within the meaning of sec. 2 or 3 of the Selective Training and Service Act of 1940, as amended:
"(1) (Not applicable.)
"(2) (Not applicable.)
"(3) (Not applicable.)
"(4) (Not applicable.)
"(5) (Not applicable.)
"(6) If he has entered or hereafter enters the United States in a manner prescribed by its laws and does not remain in the United States after May 16, 1942, or for more than 3 months following the date of his entry, whichever is the later.
"(b) When a male alien who has not declared his intention to become a citizen of the United States has entered or hereafter enters the United States in a manner prescribed by its laws and remains in the United States after May 16, 1942, or for more than 3 months following the date of his entry, whichever is the later, he is `a male person residing in the United States' within the meaning of secs. 2 and 3 of the Selective Training and Service Act of 1940, as amended, unless he has filed an Alien's Application for Determination of Residence (Form 302) in the manner provided in § 611.21 and such application is either (1) pending or (2) has resulted in a determination that he is not `a male person residing in the United States' within the meaning of secs. 2 or 3 of the Selective Training and Service Act of 1940, as amended, in either of which events he shall not be considered as `a male person residing in the United States' within the meaning of secs. 2 or 3 of the Selective Training and Service Act of 1940, as amended, during the period when such application is pending or during the period covered by the Alien's Certificate of Nonresidence (Form 303) issued to him as a result of the determination that he is not `a male person residing in the United States' within the meaning of secs. 2 or 3 of the Selective Training and Service Act of 1940, as amended ( 54 Stat. 885; 50 U.S.C., Sup. 301-318, inclusive; E.O. No. 8545, 5 F.R. 3779)."
The Supreme Court found that under the regulations set forth in footnote 2, Kristensen was not residing in the United States at the time of his application for relief (March 30, 1942), and therefore could not have had such liability for service. Since there was no liability for service, the disqualification for citizenship under the penalty clause of section 3 (a) could not arise because the applicant had not made the application referred to in the statute as such application. As there was no liability for service when he filed Form DSS 301, his act in applying for relief from a nonexistent duty did not create a bar against naturalization.
The only question remaining for us to determine is whether an amendment to section 611.13, title 32 C.F.R. (effective prior to the time the respondent herein filed Form DSS 301 on February 6, 1943), materially changed the definition of "residence" as that term is interpreted by the Supreme Court in the Kristensen case. This amendment, filed September 14, 1942 (7 F.R., pt. 9, p. 7222) deletes paragraph (b), but the substance of this paragraph is added to paragraph (a) by the addition of subparagraphs 7, 8, and 9 and a proviso that the nondeclarant alien have "in his personal possession an official document issued pursuant to authorization of or described by the Director of Selective Service which identifies him as a person not required to present himself for and submit to registration."
32 C.F.R. 611.13. Subparagraphs (7), (8), and (9) provide as follows:
"(7) He has, within the time prescribed and in the manner provided in § 611.21, filed with the local board with which he is registered, or if he is not registered, with the local board having jurisdiction over the area in which he is located, an Alien's Application for Determination of Residence (Form 302) together with an Alien's Personal History and Statement (Form 304) and such application is either pending or has resulted in the issuance by the local board of an Alien's Certificate of Nonresidence (Form 303) which has not expired; or
"(8) He is an individual designated by the Director of Selective Service as not required to present himself for and submit to registration; or
"(9) He is within a group of individuals described by the Director of Selective Service as not required to present themselves for and submit to registration."
(Amendments effective September 14, 1942, 7 F.R. pt. 9, p. 7222.)
32 C.F.R. 611.3 and 611.21, when read in conjunction with 32 C.F.R. 611.13, as amended ( supra), specifically excepts a nondeclarant alien who enters the United States lawfully 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 the respondent 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.
Accordingly, we find on the basis of the regulations in effect at the time of the respondent's entry on January 1, 1943, that when the respondent filed his application for relief from military service on February 6, 1943, he was not residing in the United States nor had he incurred such liability for military service within the meaning of section 3 (d) of the Selective Training and Service Act of 1940, as amended, because the 3 months' period of grace had not expired. By the terms of the statute, his action in applying for relief from a nonexistent duty did not create a bar against naturalization as that bar does not come into existence until an alien resident liable for training and service asks to be relieved, ( McGrath v. Kristensen ( supra)). That portion of respondent's motion to reconsider his application for discretionary relief under section 19 (c) (2) of the Immigration Act of 1917 is hereby granted.
Discussion as to Deportability: The respondent, a native and citizen of Finland, last entered the United States at the port of Mobile, Ala., on January 1, 1943, as a member of the crew of the S.S. San Gaspar. He was admitted as a seaman for a period not to exceed 30 days. He testified that at the time of his arrival he intended to reship as a seaman. He has remained continuously in the United States until the present time. He has never been admitted to the United States for permanent residence. The charge stated in the warrant of arrest is sustained.
Discussion as to Eligibility for Suspension of Deportation:
The respondent has filed formal application for the suspension of his deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended. He has resided continuously in the United States since his arrival on January 1, 1943. The respondent married a native-born citizen of the United States on August 14, 1943. He is the father of a minor dependent American citizen child, the issue of his marriage. His citizen wife and minor citizen child are entirely dependent upon him for support. Since his arrival, the respondent has been steadily employed by the same employer. At the time of his application he was earning $60 per week. He and his wife have cash in the amount of $4,000, furniture and clothing valued at $1,000, one bond in the sum of $50, and he owns his home valued at $5,000. His deportation would result in serious economic detriment to his American citizen wife and American citizen minor child.
The respondent has never been arrested for a crime. He has submitted numerous affidavits attesting to his good moral character, his loyalty to the United States, his industry, honesty, devotion to his citizen wife and child, and stating that he did not know the contents of the Selective Service Form 301 at the time he signed it in February 1943. The respondent is not subject to deportation under any of the categories mentioned in section 19 (d) of the Immigration Act of 1917. We find on the record before us that the respondent has been of good moral character for the preceding 5 years.
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 the alien has resided continuously in the United States since January 1, 1943, and his deportation would result in serious economic detriment to his wife and minor child, native-born citizens of the United States.
(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 Assistant Commissioner on March 17, 1949, be and the same is hereby withdrawn.
It is further ordered that if during the session of the Congress at which this case is reported, or prior to the close of the session of the Congress next following the session at which this case is reported, the Congress passes a concurrent resolution, stating in substance that it favors the suspension of such deportation, the proceedings be canceled upon the payment of the required fee and that the alien be charged to the quota for Finland.