A-4887780
Decided by Central Office April 2, 1951 Decided by Board September 28, 1951
Citizenship revoked by court — Section 704 of the Nationality Act of 1940, as amended — Deportability of alien on basis of a proceeding instituted before naturalization.
A warrant of arrest was issued in 1941 against an alien seaman for having remained longer than permitted after his entry as seaman in 1940, and he was ordered deported in 1941. He was naturalized in 1945 while in the Armed Forces of the United States, but his citizenship was revoked in 1948 under section 704 ( supra). Proceedings under the above warrant were reopened in 1949. The alien cannot be deported on a proceeding instituted before he was naturalized, for whatever his deportability situation was before he became a citizen, after he is granted citizenship the prior grounds of deportation no longer exist; and the fact that he again has become deportable does not revive the old warrant.
CHARGE:
Warrant: Act of 1924 — Remained longer.
BEFORE THE CENTRAL OFFICE
(April 2, 1951)
Discussion: The respondent is a native of Italy, who presently claims to be stateless and who last entered the United States at San Diego, Calif., on May 20, 1940, as a seaman. He has expressed a preference to be deported to Mexico.
The record discloses that the warrant of arrest was issued on March 31, 1941; that the original deportation hearing was conducted on May 20, 1941, and the warrant of deportation issued on September 5, 1941. On July 8, 1949, the Board of Immigration Appeals entered an order directing the withdrawal of the order and warrant of deportation and the reopening of the case to permit the record to be brought up to date. Pursuant thereto hearings were held on October 1 and November 4, 1949. Counsel for respondent now contends that since the deportation hearings were not held in conformity with the provisions of the Administrative Procedure Act, due process of law was not accorded respondent and a hearing de novo should be ordered. However, it has been recently held that where the warrant of arrest was served before the enactment of the Administrative Procedure Act of 1946, the mere fact that the proceedings were reopened and conducted after the enactment of such act does not entitle the alien to a hearing de novo. Harisiades v. Shaughnessey, 90 F. Supp. 431 (S.D.N.Y. April 4, 1950); Matter of P---- A-6093609 (June 27, 1950), Interim Decision 192, 3, I. N. Dec. 818. Consequently, the record establishes that due process was accorded respondent and a hearing de novo is not required.
The record further discloses that respondent last entered the United States at San Diego, Calif., on May 20, 1940, as a member of the crew of the Italian ship S.S. Leme. Respondent has testified that after arrival in San Diego the vessel proceeded to San Francisco, Calif. and Portland, Oreg. He further stated that he was permitted to leave the ship at any time, if he so desired. In March 1941 the vessel was seized by the United States Government and on March 31, 1941, the warrant of arrest was issued. Counsel for the respondent now contends that respondent's entry into the United States was involuntary and therefore no entry within the contemplation of the immigration laws was made by respondent. In support of this contention, counsel cites the case of U.S. ex rel. Bradley v. Watkins, 163 F. (2d) 328 (C.C.A. 2, July 23, 1947), and related cases which held that an alien seized by the United States elsewhere and brought to this country against his will for internment for security reasons as an alien enemy cannot be deported as an immigrant, at least not before he has been afforded an opportunity to depart voluntarily. Counsel also cites the case of Carmichael v. Delaney, 170 F. (2d) 239 (C.A. 9, October 18, 1948), wherein it was held that a resident of the United States who enlisted in the United States Maritime Service during World War II and participated with American Task Forces upon the high seas did not make a new "entry" into the United States within the immigration laws when returning to the United States. However, the facts in the cited cases are not similar to those in respondent's case. The respondent of his own will entered into his employment as a seaman aboard the Italian ship and voluntarily entered the United States on May 20, 1940, as a seaman aboard such ship. From such date until the date of the seizure of the vessel in March 1941, he could have left the ship while it was in the United States ports. Because the vessel on which the respondent arrived in the United States continued to remain in this country does not necessarily mean that respondent was compelled to stay in this country. There was no element of force or coercion in the entry of respondent in the United States on May 20, 1940, and his remaining in the United States until March 31, 1941. It was therefore, properly held that an entry into the United States was made within the meaning of the immigration laws. See Matter of M---- S----, A-5121836 (formerly 56074/276).
After the issuance of the warrant of deportation on September 5, 1941, respondent was taken into the custody of this Service. He remained in detention at Fort Missoula under an order of internment as an enemy alien, was paroled on December 11, 1943, and enemy alien proceedings vacated on April 21, 1944. On November 13, 1944, he was inducted into the United States Army and while a member of such armed forces, was naturalized as a United States citizen on January 17, 1945, by the District Court of Geary County at Junction City, Kans., pursuant to the provisions of section 701 of the Nationality Act of 1940 ( 8 U.S.C.A. 1101, as amended). However, on June 20, 1945, he was charged in a court martial proceeding of willfully maiming himself in the left foot on May 17, 1945, by shooting himself with a rifle and thereby unfitting himself for the full performance of military service. He was found guilty on July 3, 1945, sentenced to 5 years hard labor which sentence was terminated by his dishonorable discharge on April 10, 1948. On October 19, 1948, his United States citizenship was revoked by order of the United States District Court at San Francisco, Calif., pursuant to the provisions of section 704 of the Nationality Act of 1940, as amended.
The naturalization of respondent and the subsequent cancellation of his citizenship raises a question as to whether he is deportable on the charge stated in the present warrant of arrest. If, because of the cancellation, he is deemed never to have been a citizen of the United States, he must be regarded as always having been an alien and the charge stated in the outstanding warrant of arrest is sustainable. It is, therefore, necessary to examine the provisions of the statute under which the naturalization and subsequent cancellation took place.
Respondent was naturalized as a United States citizen on January 17, 1945, pursuant to the provisions of section 701, title III of the Nationality Act of 1940, as amended, which was in effect at that time. His citizenship was revoked on October 19, 1948, pursuant to the provisions of section 704 ( supra), which in pertinent detail read as follows:
The provisions of this title shall not apply to (1) any person who during the present war is dishonorably discharged from the military or naval forces * * * provided that citizenship granted pursuant to this title may be revoked as to any person subsequently dishonorably discharged from the military or naval forces in accordance with section 338 of this act and such ground for revocation shall be in addition to any other provided by law.
Prior to the enactment of section 704 ( supra), the only provision relating to cancellation of citizenship contained in the Nationality Act of 1940 was that of section 338, the provisions of which referred to cancellation because of fraud or illegality in obtaining naturalization. It has been held that where citizenship was revoked because of fraud or illegality, citizenship was lost ab initio and the order revoking citizenship was tantamount to a finding that the person involved was never a citizen of the United States. ( Johannessen v. U.S., 225 U.S. 227 (1912); U.S. v. Iuria, 231 U.S. 9 (1913); Rosenberg v. U.S., 60 F. (2d) 475 (C.C.A. 3, 1932); Battaglino v. Marshall, 172 F. (2d) 979 (C.A. 2, 1949). In cases of this type, the fraud or illegality occurs at the time of naturalization; however, where a member of the armed forces was naturalized pursuant to the provisions of section 701 ( supra), there was no defect in the proceedings at the time of the naturalization. Cancellation of citizenship for fraud or illegality takes place because of a defect in the original proceedings whereas cancellation pursuant to section 704 ( supra), may occur because of a subsequent condition; namely, dishonorable discharge. The problem presented, therefore, is whether cancellation of respondent's citizenship under section 704 ( supra), deprived him of citizenship ab initio.
It is apparent that by enacting section 701 of the Nationality Act of 1940, as amended, Congress sought to award benefits to those aliens who served honorably in the armed forces of the United States. These benefits represented a reward in recognition of honorable service to this country. It is clear that Congress desired only to grant the benefits to those who served honorably. The reports of the congressional committees which considered this legislation declared that the benefits of the statute would be available to persons who were "honorably serving in the armed forces of the United States" (H. Repts. 1765, February 9, 1942, and 1896, March 19, 1942, 77th Cong., 2d sess.). The naturalization of respondent as a United States citizen was made subject to a condition subsequent; namely, that his citizenship might be revoked if he was dishonorably discharged from the military forces of the United States. He failed to obtain an honorable discharge and his citizenship was revoked. Consequently, he obtained no benefits under this act. He is, therefore, in the position of one who was never a United States citizen.
The decree of revocation having extinguished ab initio any benefits that may have occurred to respondent as a result of his naturalization, respondent is restored to his original status of alienage. He is, therefore, deportable under the Immigration Act of 1924.
Upon consideration of the entire record, the recommendation of the presiding officer as to deportability is hereby adopted.
Counsel for respondent requests that the entry of the final order in this case be deferred inasmuch as a petition had been filed by respondent with the Office of the Judge Advocate General for a new trial in respect to the court martial of respondent. Information, however, has been received from such office to the effect that after consideration of such petition, it is concluded that there was no justification for granting him relief and on April 7, 1950, action was taken by the Judge Advocate General of the Army denying the relief requested.
Respondent has applied for the privilege of suspension of deportation or in lieu thereof, for voluntary departure. He is a 29-year-old single male, who has been in the United States since May 20, 1940, and who was in the United States on July 1, 1948. From September 5, 1941, to December 11, 1943, he was in the custody of this Service, first under deportation proceedings and then as an enemy alien. He was on parole as an enemy alien from September 11, 1943, to April 21, 1944. From about June 20, 1945, to April 10, 1948, he was in confinement as a result of his conviction in the court-martial proceedings. Since his release from confinement he has been steadily employed and has earned about $4,500 from the period of about April 1948 to November 30, 1949. He has $1,000 in a savings account and four United States war bonds in the sum of $25 each. He has testified that he has never been arrested. Report from the Federal Bureau of Investigation reflects that he has no prior criminal record on file with that Bureau. He was questioned about an arrest for sabotage, which charge was dismissed, and he has denied participating in any such activities. Respondent has submitted affidavits attesting to his character and residence in the United States and letters from former employers. Respondent's present employer appeared at this office and testified in respondent's behalf. His residence in the United States for a period of 7 years and on July 1, 1948, has been established. Report of investigation by this Service reflects that he has not been other than a person of good moral character subsequent to his discharge from the Army.
The only relative in the United States that respondent has is an uncle with whom respondent does not correspond. He has a mother in Italy whom he supports, and who is entirely dependent upon him for support. On July 3, 1945, he was found guilty in court-martial proceedings of willfully maiming himself in the left foot on May 17, 1945, and thereby unfitting himself for full performance of military service. He was given a dishonorable discharge and sentenced to 5 years at hard labor, serving about 3 years of such sentence. He has alleged in his application for a certificate of identification executed June 2, 1943, that he had been a member within the past 5 years of the Fascist Youth Organization in Italy. This organization was an integral part of the Fascist movement in Italy. In view of his lack of ties in the United States, his conduct while a member of the armed forces and his membership in a totalitarian party, discretionary relief is not warranted in his case.
Respondent may also be deportable under the act of 1918, as amended by the Internal Security Act of 1950, because of his membership in a totalitarian party. Were such charge sustained, his case would come within the provisions of section 19(d) of the Immigration Act of 1917 precluding him from obtaining any discretionary relief. In view of the contemplated action in this case, no useful purpose would be served in reopening the proceedings to inquire into the applicability of the charge referred to.
In the light of the foregoing, it is concluded that the application of respondent for suspension of deportation or in lieu thereof for voluntary departure should be denied.
Order: It is ordered that the application of the alien for suspension of deportation or voluntary departure in lieu thereof be denied.
It is further ordered that the alien be deported from the United States pursuant to law on the charge stated in the warrant of arrest.
Discussion: Respondent is a native and citizen of Italy, who last entered the United States at San Diego, Calif., on May 20, 1940, as a seaman. Counsel pleads the procedural provisions of the Administrative Procedure Act, claiming that the proceedings in this matter have not been held in accordance with that statute. On September 27, 1950, Congress enacted Public Law 843, 81st Congress., second session., 64 Stat. 1048, which provides that proceedings relating to exclusion or expulsion of aliens are to be held without regard to the Administrative Procedure Act. Therefore, if new hearings were held they would not necessarily be in accordance with the Administrative Procedure Act. Other arguments of counsel relating to precedure, constitutional questions, and the applicability of the Administrative Procedure Act to these hearing, have been adequately answered by the court in United States ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137 (C.A. 2, 1951).
On September 5, 1941, respondent, with the rest of the crew of the Italian vessel on which he arrived, was interned as an enemy alien at Fort Missoula, Mont. He was paroled on December 11, 1943. Enemy alien proceedings were vacated on April 21, 1944. On November 13, 1944, he was inducted into the United States Army, and on January 17, 1945, he was naturalized a United States citizen. However, on June 20, 1945, he was charged in a court-martial proceeding of willfully maiming himself in the left foot on May 17, 1945, by shooting himself with a rifle and thereby unfitting himself for the full performance of military service. He was found guilty on July 3, 1945, and sentenced to 5 years hard labor. This sentence was terminated by his dishonorable discharge on April 10, 1948. On October 19, 1948, his United States citizenship was revoked by order of the United States District Court at San Francisco, Calif., pursuant to the provisions of section 704 of the Nationality Act of 1940, as amended.
The Commissioner found that because of the cancellation of his citizenship, respondent must be regarded as having been at all times an alien, and therefore concluded that he is deportable under the Immigration Act of 1924. The Commissioner found that the naturalization of respondent under section 701 of the Nationality Act of 1940, as amended, was subject to "a condition subsequent," because his citizenship might be revoked if he were dishonorably discharged from the military forces of the United States. We disagree with the conclusion of the Commissioner that respondent was granted citizenship subject to "a condition subsequent." Citizenship of the United States is not so granted by United States courts. Section 701 of the Nationality Act of 1940, as amended, provides, in part:
Notwithstanding the provisions of section 303 and 326 of this act, any person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war * * * may be naturalized upon compliance with all the requirements of the naturalization laws. * * *
Section 704 ( supra), provides; in part:
* * * citizenship granted pursuant to this title may be revoked as to any person subsequently dishonorably discharged from the military or naval forces in accordance with section 338 of this act; and such ground for revocation shall be in addition to any other provided by law.
Subsequent conditions can arise which create a ground for withdrawing the citizenship previously granted. This is our interpretation of the meaning of the statute. Whatever the situation was before the alien became a citizen with regard to his deportability, after he is granted citizenship the prior grounds for deportation no longer exist. The fact that he again has become deportable does not revive the old warrant. We do not believe that respondent can be deported on a proceeding instituted before he was naturalized.
It is our conclusion that the present proceeding must be canceled without prejudice to the institution of any new proceeding the Immigration and Naturalization Service may feel is warranted.
Order: It is ordered that the present proceeding be canceled without prejudice to the institution of a new proceeding by the Immigration and Naturalization Service.