A-3556165
Decided by the Board November 20, 1953
Suspension of deportation — Section 19 (c) of the Immigration Act of 1917, as amended — Not granted where alien failed to report for induction.
Despite the sympathetic features of long residence, dependent family ties, and economic detriment, suspension of deportation is not granted to an alien who departed from the United States for the purpose of avoiding his military obligations although he had long residence and deep roots in this country at the time he was called to perform military service.
CHARGES:
Warrant: Act of 1924 — No immigration visa. Act of 1917 — Entered by land. Act of 1918 — No passport. Act of 1929 — Arrested and deported-No permission to reapply.
Lodged: Act of 1917 — Departed to avoid military service.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order of the Acting Assistant Commissioner dated June 17, 1952, ordering the respondent deported on the charges stated in the warrant of arrest.
While the sole issue before us concerns the exercise of discretionary relief, a short summary as to deportability would appear to be appropriate. The record relates to a native and citizen of Mexico, 32 years old, male, who last entered the United States near the port of Ysleta by wading the river on February 15, 1952, intending to work and reside in the United States although not in possession of an immigration visa, or a passport, or other travel document. He was last arrested and deported from the United States on September 20, 1948, and has never received permission to reapply for admission after such arrest and deportation. One of the charges upon which he was deported in 1948 was that he had departed from 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 and that charge was lodged at the present deportation hearing. In connection with the lodged charge the respondent has admitted that he was called for induction to take place on October 5, 1942, but notwithstanding such call, he departed to Mexico during the latter part of September 1942 without obtaining permission or notifying his local draft board. He candidly admitted that he departed from the United States because he was afraid he would be killed in the war and for that reason took steps to keep out of the army. After his departure from the United States in September 1942 to avoid induction, he remained in Mexico until January 1947 after hostilities had ceased and it was again safe to return to the United States. On April 3, 1947, he was convicted in the United States District Court of El Paso, Tex., for failure to report to his local draft board for induction after having been notified to do so in violation of 50 U.S.C. 311 and was sentenced to imprisonment for a term of 13 months. The respondent has previously been denied permission to reapply for admission into the United States after arrest and deportation on October 28, 1949, and November 13, 1950, and was excluded from admission to the United States by a board of special inquiry at El Paso, Tex., on February 7, 1952, but entered the United States illegally during the pendency of such appeal.
The application for suspension of deportation is predicated upon the respondent's long residence in the United States from 1923 (except for the period he spent in Mexico from September 1942 to January 1947 to avoid induction) prior family ties of citizen wife and four citizen minor children; and the serious economic detriment which would result to them in the event he were deported. The factors of long residence and serious economic detriment are conceded. It is likewise conceded that he has established good moral character.
The grant of suspension of deportation is not a matter of right on the part of the alien but is a matter of grace to be dispensed in the sound discretion of the Attorney General. The record shows that the respondent at the time he was called for induction had resided in this country since early infancy and that his roots and ties were all in this country. He had left Mexico when 1 or 2 years of age. Despite the fact that he actually knew no country other than the United States, he failed to support and defend this country when called upon to do so in a period of crisis and peril, and frankly admitted that he was afraid to serve in the Armed Forces of this country because of the possibility that he might die.
The respondent now seeks the dispensation of grace in his favor although he shirked and evaded his military obligations during time of war. He has been convicted as a result of his willful failure to report for induction and has been sentenced to 13 months' imprisonment. It is to be noted that in connection with the proposed draft of the immigration and nationality laws which resulted in the enactment of the Immigration and Nationality Act of 1952, the congressional subcommittee recommended that the prohibition against going abroad with intent to avoid draft or service be extended to persons who have not enrolled for such service and that conviction by any court of competent jurisdiction, instead of only court martial, was a prerequisite to establishment of ineligibility to naturalization.
S. Rept. 1515, report of the Committee on the Judiciary pursuant to S. Res. 137, 81st Cong., 2d sess., pp. 730-731.
It is not believed that the case of a person who has long residence and deep roots in this country at the time he is called to perform military service, but who departs for the purpose of evading or avoiding his military obligations, is a proper case to refer to Congress with a recommendation of suspension of deportation. It is believed therefore that despite the sympathetic features of long residence, dependent family ties, and serious economic detriment the alien should be deported.
Order: It is ordered that the appeal be and the same is hereby dismissed.