A-4529493.
Decided by Board October 21, 1955.
Ineligible to citizenship — Exemption from training or service in Armed Forces on ground of alienage — Neutral country.
(1) A Mexican national who filed application for exemption from military service as a neutral alien on DSS Form 301 on May 28, 1942, was not ineligible to citizenship under section 3 (a) of the Selective Training and Service Act of 1940, as Mexico was no longer a neutral country on the date of the filing of his application.
(2) When such an alien, however, has been relieved from military service as a consequence of his application on DSS Form 301 he is held to be permanently debarred from citizenship under the provisions of section 315 of the Immigration and Nationality Act and also falls within the provisions of sections 101 (a) (19) and 212 (a) (22) of the act.
CHARGE:
Warrant: Act of 1952 — Excludable at time of entry — Ineligible to citizenship.
BEFORE THE BOARD
Discussion: This case is before us pursuant to the certification of the special inquiry officer who utilized the authority contained in section 212 (c) of the Immigration and Nationality Act and directed that the respondent be considered as having been lawfully admitted on the occasion of his last entry.
The respondent is a 42-year-old male, native and citizen of Mexico, who last entered the United States in February 1954 when he was admitted as a returning legal resident after a visit of a few hours in Mexico. He has resided in the United States continuously since his lawful entry for permanent residence in 1918. On May 28, 1942, he executed an application for relief from military service on DSS Form 301.
While we agree with the special inquiry officer's disposition of the case, we deem it appropriate to comment on certain matters which were not referred to in his decision. Mexico declared war on Germany, Italy, and Japan on May 22, 1942, and was no longer a neutral country on May 28, 1942, when the respondent executed the DSS Form 301. Under the statutory provisions which were in effect prior to the effective date of the Immigration and Nationality Act, it had been consistently held that the execution of a DSS Form 301 by a national of a country which was not then a neutral was a nullity and that such a person was not barred from becoming a citizen. Hence, the respondent is not ineligible to citizenship under section 3 (a) of the Selective Training and Service Act of 1940, as amended.
The term "ineligible to citizenship" is defined in section 101 (a) (19) of the Immigration and Nationality Act and it specifically includes, not only those barred under the Selective Training and Service Act, but also any individual who is or was "permanently debarred from becoming a citizen of the United States * * * under any section of this Act, * * *." Section 315 of the Immigration and Nationality Act is as follows:
Sec. 315. (a) Notwithstanding the provisions of section 405 (b), any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States.
(b) The records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien.
Exhibit 3 is a certificate from the Selective Service System which is to the effect that the respondent claimed exemption or relief from military service or training by reason of his application on DSS Form 301 on May 28, 1942, and by reason of his objection to military service on DSS Form 304 on the same day. The certificate also shows that the respondent was relieved from military service or training on that ground and that he was classified IV-C on June 1, 1942, in which classification he remained until November 26, 1943, when it was changed to I-A.
Insofar as the respondent's objection to service contained in DSS Form 304 is concerned, we held in Matter of F----, A-3356723, Int. Dec. No. 638 (1954), that this was not an "application" for exemption from service within the meaning of section 315 of the Immigration and Nationality Act. With respect to the DSS Form 301, we have indicated above that the respondent was not debarred from becoming a citizen under section 3 (a) of the Selective Training and Service Act of 1940, as amended. However, the DSS Form 301 did constitute an application for exemption from training or service in the Armed Forces on the ground that the respondent was an alien and he was relieved from training and service on the ground of alienage. We must, therefore, hold that he is permanently debarred from becoming a citizen of the United States by reason of the provisions of section 315 of the Immigration and Nationality Act. It follows that he is also within the purview of sections 101 (a) (19) and 212 (a) (22) of that act and he is deportable on the charge stated in the warrant of arrest. For the reasons stated by the special inquiry officer, we agree that this case merits the exercise of the discretionary authority in section 212 (c) of the Immigration and Nationality Act.
Order: It is ordered that the special inquiry officer's order of April 15, 1955, be approved and that the proceedings be terminated.