56196/783
Decided by Board January 21, 1946. Ruling by Attorney General, April 4, 1946.
"Draft" evader — Alien — Departure from United States to avoid imminent liability for United States military service — Excludability — Section 3 of the act of February 5, 1917, as amended.
An alien, who departed from the United States a few days before his eighteenth birthday to avoid liability for military service is excludable under the provisions of section 3 of the act of February 5, 1917, as amended by the act of September 27, 1944, as a person who departed from the jurisdiction of the United States for the purpose of avoiding military service in war time or during a period declared by the President to be a period of national emergency.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917, as amended — Departed to avoid military service.
BEFORE THE BOARD
(Majority Opinion)
Discussion: The appellant applied for admission as a visitor at Nogales, Ariz., on October 5, 1945. A Board of Special Inquiry excluded him on the ground stated above and he appeals.
The appellant is a native and citizen of Mexico, 19 years old. He desires to enter the United States in order to visit his parents for about 5 months and he presents a section 3 (2) visa.
The appellant resided in the United States from 1927 until April 1940 and from June 1940 until May 4, 1944. On the latter date, 5 days before his 18th birthday, he departed to Mexico. He testifies that he went to Mexico in order to go to school there and he did attend a school for 6 months, beginning in September 1944. He also states, "My mother told me that since I would soon be 18 years of age and that I already had three brothers in the army, that it would be a pretty good idea for me to return to Mexico and go to school down there." He also testifies:
Q. Was it your intention to evade service in the armed forces of the United States when you departed to Mexico in May 1944?
A. Yes, because if I had waited until my 18th birthday the chances are I would not have been allowed to depart and return to Guadalajara, Jalisco, Mexico.
Q. Did you have any desire to enter the armed forces of the United States?
A. No; I did not have any desire to serve the armed forces of the United States, but if they had taken me, I would have been willing to serve.
Q. Did you depart from the United States in May 1944, just a few days before you reached your 18th birthday, because you wanted to avoid registration for selective service?
A. Yes.
The Selective Training and Service Act of 1940, as amended, provided, at the time the appellant departed:
Until Decen ber 20, 1941, the age limits in section 2 were 21 to 36. The original age limits in section 3 (a) were 21 to 36; on December 20, 1941, they were changed to 20 to 45; on November 13, 1942, section 3 (a) was amended to read in its present form. See Public Law 360, 77th Cong., approved December 20, 1941, and Public Law 772, 77th Cong., approved November 13, 1942.
SEC. 2. Except as otherwise provided in this act, it shall be the duty of every male citizen of the United States, and of every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and sixty-five, to present himself for and submit for registration at such time or times and place or places, and in such manner and in such age group or groups, as shall be determined by rules and regulations prescribed hereunder.
SEC. 3. (a) 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 eighteen and forty-five at the time fixed for this registration, shall be liable for training and service in the land or naval forces of the United States: * * *.
At the time of appellant's departure from the United States he was not subject to the Selective Training and Service Act and we think it is clear from the evidence that he departed because he knew that if he remained he would become subject to that act. The Board of Special Inquiry excluded the appellant under section 2 of the act approved September 27, 1944, 58 Stat. 746. Section 1 of that act, which added section 401 (j) to the Nationality Act of 1940, provides for expatriation of an American citizen by:
(j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service.
Section 2 of the 1944 act, which amended section 3 of the Immigration Act of 1917, provides for exclusion of aliens:
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 the period declared by the President to be a period of national emergency.
This case turns on whether section 2 of the 1944 act is applicable to appellant. We considered section 1 in Matter of C----, 56175/45 (February 23, 1945). We held that that section applied only to draft dodgers and not to citizens who depart from the United States while serving in the armed forces. We stated: "Those who leave the United States to evade or avoid induction into the armed forces can be punished under the Selective Training and Service Act and it was only at those persons that the proposed bill was aimed."
In Matter of J----, 56172/580 (November 2, 1945), appellant expatriated himself and departed to Mexico for permanent residence on November 25, 1941. In 1944 a Board of Special Inquiry denied appellant the border-crossing privilege under section 2 of the 1944 act. On November 25, 1941, we pointed out, appellant was a nondeclarant alien and, therefore, specifically exempted by section 3 (a) of the Selective Training and Service Act, as it read at that time, from liability for training and service in the armed forces. We held: "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 arrived at this conclusion even though appellant just prior to his departure in November 1941, had been classified 1 — A and had passed his physical examination.
Thus we have held (1) the expatriating provision of the 1944 act applies only to draft dodgers and not to an army deserter; and (2) the excluding provision does not apply to a person who was not subject to the Selective Training and Service Act at the time of departure because he was a nondeclarant alien. We may observe that in the J---- case the appellant by his own act of expatriation placed himself in a class not subject to the Selective Training and Service Act. In the present case, appellant at the time of departure was not subject to the Selective Training and Service Act by the very terms of the law, and he did nothing to place himself in that status. If the 1944 act permits admission of J---- and requires exclusion of appellant, it will operate in a capricious and absurd manner.
We turn to the legislative history of the 1944 act. The committee reports on H.R. 4257, which became the 1944 act, show that the expatriating provision was aimed at citizens who were draft delinquents.
Formerly, the courts considered themselves free to examine the legislative history only if the language of the statute was ambiguous ( United States v. Great Northern Railway Co., 287 U.S. 144, 154 (1932); Wright v. Mountain Trust Bank, 300 U.S. 440, 463 (1937)). Recently, however, Justice Murphy stated in Harrison v. Northern Trust Co., 317 U.S. 476, 479 (1943), "* * * Words are inexact tools at best and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how clear the words may appear on "superficial examination.""'
S. Rept. 1075, 78th Cong., 2d sess.; H. Rept. 1229. 78th Cong., 2d sess. Both reports set forth a letter from the Attorney General to the chairman of the Senate Committee on Immigration, which enclosed a draft of a proposed bill. The draft was adopted without change by Congress. The Attorney General's letter states:
The files of this Department disclose that at the present time there are many citizens of the United States who have left this country for the purpose of escaping service in the armed forces. While such persons are liable to prosecution for violation of the Selective Service and Training Act of 1940, if and when they return to this country, it would seem proper that in addition they should lose their United States citizenship. Persons who are unwilling to perform their duty to their country and abandon it during its time of need are much less worthy of citizenship than are persons who become expatriated on any of the existing grounds.
This suggests that section 2 of the act, relating to aliens, should also be confined to draft delinquents, although the Committee Reports are silent on this point. But we need not go so far. The statements made by the chairmen of the House and Senate committees on the floor of Congress show that these committees had in mind citizens and aliens who were subject to the Selective Training and Service Act at the time they departed and not a person, who, like appellant, was under military age.
Such statements are persuasive in showing the intent of Congress. Wright v. Mountain Trust Bank, supra.
Chairman Dickstein of the House Committee on Immigration and Naturalization in explaining the bill on the floor of the House, said:
Mr. DICKSTEIN. * * * I would classify this piece of legislation as a bill to denaturalize and denationalize all draft dodgers who left this country knowing that there was a possibility * * * that they might have to serve in the armed forces, or in the naval forces, or the marines, and in an effort to get out of such service.
* * * * * * *
Mr. ROWE. Is it a part of the qualification of the bill that he leave for the sole purpose of evading the draft or the call of an emergency?
Mr. DICKSTEIN. That is right. In the last war we had a similar statute, but it was repealed. When war was declared by this Congress we found that there were hundreds, knowing they would be subject to the draft or subject to the service of their country, who left the country for the purpose of evading service.
* * * * * * * *
Mr. ROWE. I understand by that if they are within the qualifying age and an emergency exists, then it is determined that they have left the country for that purpose?
Mr. DICKSTEIN. * * * That is right.
* * * * * * *
Mr. DICKSTEIN. * * * The Department seems to have proof in several hundred cases. * * * There seems to be many more who have left * * * where there is a strong suspicion that the action was taken to evade service because they were within the age limits under our law.
* * * * * * *
Mr. DICKSTEIN. I appreciate that. In the last world war we had a number of people who were classified under the head of "Yellow draft dodger." They left the country with the idea of evading the call of their country. They simply slipped out of the country and then were not within the jurisdiction of the United States. They waited until the was was over, and then came back to claim the same status they had when they left. It seems to me that persons in that category should not be allowed to call themselves Americans or should not be allowed to be citizens of the United States of America.
When the bill again came before the House for concurrence with a technical amendment made by the Senate, Mr. Dickstein said:
* * * The purpose of the bill is to keep out of the country certain people who evaded war service and left this country after Pearl Harbor. * * * This bill will keep them out and they will not be given a chance to come back. They are of military age.
When the bill came before the Senate, Chairman Russell of the Committee on Immigration said:
* * * House bill 4257 * * * relates to the class of persons, whether citizens of the United States or aliens, who departed from the United States in order to avoid service in the armed forces of the United States under the Selective Service Act. * * * Several hundred persons departed from the United States through the city of El Paso, Tex., alone, in order to avoid service in either the Army or the Navy of the United States, and to avoid selection under the selective service law.
[This bill] further provides that any alien who is subject to military service under the terms of the Selective Service Act, and who left this country to avoid military service, shall thereafter be forever barred from admission to the United States. * * * An alien who remains in the country and refuses to serve in the armed forces in time of war is prosecuted under our laws, and if found guilty he is compelled to serve a term in the penitentiary. Under the terms of the Selective Service Act an American citizen who refuses to serve when he is called upon to do so is likewise subject to a prison term. Certainly those who, having enjoyed tthe advantages of living in the United States, were unwilling to serve their country or subject themselves to the Selective Service Act, should be penalized in some measure. [Italics supplied.]
The foregoing remarks by Mr. Dickstein and Senator Russell show that the committee chairmen had in mind the provisions of the Selective Training and Service Act, and that they regarded the bill as applicable only to those who had reached the age that made them subject to those provisions.
In transmitting the bill, in enrolled form, to the Bureau of the Budget on September 18, 1944, the Attorney General stated:
The files of this Department disclose that there are many citizens of the United States who have left this country for the purpose of escaping service in the armed forces. While such persons are liable to prosecution for violation of the Selective Training and Service Act of 1940, if and when they return to this country, it would seem proper that in addition they should lose their United States Citizenship.
Accordingly the bill under consideration would provide that a citizen of the United States who departs from or remains outside of the jurisdiction of the United States during a period declared by the President to be a period of national emergency, for the purpose of evading or avoiding training and service in the land or naval forces of the United States, shall become expatriated. The bill would also bar the reentry of any alien subject to the Selective Training and Service Act of 1940 who departed from the jurisdiction of the United States for the purpose of evading or avoiding training or service in the armed forces. [Italics supplied.]
We conclude that section 2 of the 1944 act does not apply to an alien who at the time of his departure from the United States has not reached the age specified in the Selective Training and Service Act, and therefore was not subject to its provisions.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native and citizen of Mexico;
(2) That the appellant desires admission as a visitor for pleasure for a period of 5 months;
(3) That on May 4, 1944, appellant, who was at that time a resident of the United States, departed to Mexico because he knew that in 5 days he would reach the age of 18 and become subject to the Selective Training and Service Act.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3 of the Imigration Act of 1917, as amended, the appellant is not inadmissible to the United States on the ground that he departed in time of war in order to evade or avoid military training or service.
Other Factors: The appellant's parents live in Los Angeles, Calif., where his father operates a grocery store. He has three brothers in the American Army.
Thomas G. Finucane, Chairman, (Joined by Leigh L. Nettleton, Member), dissenting:
I have signed the decision of the majority of the Board as required by section 90.3, title 8, Code of Federal Regulations. I am unable to agree with it.
The majority has found that appellant departed to Mexico because he knew that in 5 days he would reach the age of 18 and become subject to the Selective Training and Service Act. The opinion thus admits, it seems to me, that appellant departed "for the purpose of evading or avoiding" military service.
The 1944 act applies, according to the majority decision, only to those who are of military age at the time they leave. I can see no basis for this limitation. The statute makes no such exception. Its language is clear and unambiguous.
The majority relies for its interpretation on the statutory history, which it sets forth at length in its opinion. That history, it seems to me, does not support the narrowed construction advanced by the majority. The quoted excerpts show that the committee chairmen were making a general explanation of the bill. Their attention was not directed to the issue here presented, and their general remarks do not warrant the carving out of an exception from the plain language of the statute. Moreover, Mr. Dickstein refers to military age solely as proof that aliens have departed in order to escape military service. Here appellant admits that fact.
A word on Matter of J----. We decided favorably to J---- because at the time he departed there was no obligation of military service which he had to fear. In appellant's case that obligation was imminent, and to escape that obligation he went to Mexico. There is nothing absurd or capricious in this distinction. It would be, on the other hand, both absurd and capricious to distinguish between appellant's case and that of an alien who departed on his 18th birthday — and the majority decision implies that this distinction must be made.
I think that the plain language of the 1944 act requires exclusion of appellant. I would authorize his temporary admission under the discretion conferred by the ninth proviso to section 3 of the Immigration Act of 1917.
Mr. Nettleton joins me in this dissent.
Upon the opinion, findings of fact, and conclusions of law adopted by the majority of the Board, it is
Ordered that the appeal be sustained and that the appellant be admitted as a visitor for pleasure for a period of 5 months.
As a dissent has been recorded, in accordance with section 90.12, title 8, Code of Federal Regulations, the Board certifies the case to the Attorney General for review of its decision.
* * * * * * * Adequate precedent exists for the suggested legislation in that during the First Would War a statute was in force which provided for the expatriation of any person who went beyond the limits of the United States with intent to avoid any draft into the military or naval service ( 37 Stat. 356). This provision was repealed by section 504 of the Nationality Code of 1940 ( 54 Stat. 1172; U.S.C., title 8, sec. 904).
Before the Attorney General for review of an order sustaining appellant's admissibility to the United States as a visitor for pleasure.
The issue is whether an alien, who departed from the United States a few days before his 18th birthday to avoid liability for military service, is inadmissible to the United States under that part of section 3 of the Immigration Act of 1917, as amended by the act of September 27, 1944, which excludes from admission to the United States "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."
The majority decision holds that section 3 does not apply to appellant because at the time of his departure he was a few days short of military age.
At the time of departure, however, military service was imminent, and it is conceded that the purpose of appellant's departure was to avoid military service.
In using the word "avoid," as well as the word "evade," the act undoubtedly intended to cover not only those who escape from an obligation already imposed, but also those who escape from an obligation which would arise but for their avoiding act.
The act seeks to prevent an exodus from the United States for the purpose of avoiding military service, and does not make any distinction between persons of military age and those about to reach military age. It would seem to apply to all for whom military service is an imminent possibility.
Since military service was an imminent possibility for appellant, and since he departed from the United States to avoid such service, section 3 requires his exclusion.
The findings of fact, conclusions of law and order of the Board of Immigration Appeals sustaining the appeal are hereby reversed.