5878178.
Decided by Board July 14, 1947.
Ineligible to citizenship — Neutral alien files exemption from United States military service as national of neutral country — Section 3 (a) of the Selective Training and Service Act of 1940. Inadmissible — Section 13 (c) and 28 (c) of the Immigration Act of 1924, as amended.
An alien who filed exemption from United States military service as a national of a neutral country is barred from naturalization under the provisions of section 3 (a) of the Selective Training and Service Act of 1940 and became inadmissible as an alien ineligible to citizenship under the provisions of section 13 and 28 (c) of the Immigration Act of 1924 upon the amendment of the latter section on October 29, 1945.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
Act of 1924, as amended — Ineligible to citizenship.
BEFORE THE BOARD
Discussion: Appellant is a 47-year-old native of Germany and citizen of Switzerland. He was admitted to the United States on June 3, 1941 under section 3 (6) of the Immigration Act of 1924 as a treaty trader. He still has that status. However, appellant desired to become a permanent resident of the United States, and accordingly he filed an application for preexamination. His application was granted but during the preexamination proceeding he was found inadmissible on the ground stated above. The Commissioner affirmed the finding of inadmissibility made by the Board of Special Inquiry.
Appellant registered under the Selective Training and Service Act of 1940. Apparently when his induction became imminent he contacted the Swiss Legation in Washington for advice as to his status under the Selective Training and Service Act. It appears that negotiations were conducted between the Swiss Legation and the Department of State. The Swiss Legation took the position that its nationals were exempt from military service under article 2 of the Treaty of Friendship, Commerce and Extradition, 1850, between the United States and Switzerland. The Legation was of the further opinion that its nationals would not be ineligible for American citizenship even if they claimed and were granted exemption from military service. The Department of State, however, apparently advised the Swiss Legation that the question of eligibility for naturalization would be a question for the courts to decide. We note that at that time neutral aliens who became ineligible to citizenship because of claiming exemption from military service were not inadmissible to the United States. Such aliens did not become inadmissible until section 28 (c) of the Immigration Act of 1924 was amended on October 29, 1945.
In accordance with the advice received from the Swiss Legation, appellant in May 1943 filed his claim of exemption from military service with his local draft board. In a covering letter to the draft board appellant explained that he was claiming exemption, not under section 3 (a) of the Selective Training and Service Act of 1940, but under article 2 of the treaty with Switzerland. Appellant was exempted from military service in accordance with his claim.
On January 26, 1945, appellant wrote the local board withdrawing his claim of exemption and waiving any rights or privileges that he had acquired by reason of his 4-C classification. The local draft board apparently acceded to his request and reclassified him 4-A.
Counsel for appellant now contends that he is not ineligible to citizenship nor inadmissible to the United States under section 13 (c) of the Immigration Act of 1924. He argues that appellant claimed and obtained exemption from military service under the treaty with Switzerland, and that alone. He requests that if we cannot make such a finding on this record, the hearing should be reopened to incorporate into the record the appropriate files of the Department of State and the Selective Service System which bear on his contention.
We do not think anything can be gained by reopening the case for further evidence in accordance with counsel's request. Whatever opinion may have been expressed by the Department of State or the Selective Service System on the question of appellant's eligibility for citizenship, such opinions would not be binding upon us. We think that nationals of Switzerland were and are now entitled to claim exemption from military service on the basis of the Swiss treaty. However, we further think that Congress, in amending the Selective Training and Service Act of 1940 in December 1941 by making all neutral aliens who claim exemption ineligible for citizenship, declared its intent to penalize all nationals of neutral countries having treaties with the United States similar to the Swiss treaty who claimed exemption from military service. Appellant in this case did claim exemption and his claim was recognized. We conclude that he thereby became ineligible to citizenship. The fact that subsequently he abandoned this claim and was reclassified is of no moment. ( Matter of J----, 4558054 (Atty. Gen.'s decision June 9, 1947)).
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That appellant is an alien, a native of Germany and a citizen of Switzerland;
(2) That appellant claimed exemption from military service in May 1943 and his claim of exemption was recognized;
(3) That in January 1945 appellant withdrew his claim of exemption and was reclassified accordingly.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That, under section 13 (c) of the Immigration Act of 1924 appellant would be inadmissible to the United States on the ground that he is a person ineligible to citizenship.Order: It is ordered, that the motion to reopen be denied.
It is further ordered, That the finding of inadmissibility by the Board of Special Inquiry be affirmed.