1693109 (56196/63).
Decided by Board February 27, 1946.
Army "deserter" — Alien — Excludability — Departed to evade military service — Section 3 of the act of February 5, 1917, as amended.
A legally resident alien, who departed from the United States in 1942, about 6 days after his induction into the armed forces of the United States, to escape military service here, who resided abroad thereafter, and who is now listed by the United States Army as a deserter, subject to court martial on the ground of desertion should he return to this country — is inadmissible to the United States under the provisions of section 3 of the act of February 5, 1917, as amended by section 2 of the act of September 27, 1944, which excludes aliens from the United States who 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, notwithstanding such departure occurred prior to the amendatory legislation of September 27, 1944, which has been held to have retroactive effect.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1940 — No visa, reentry permit, or border-crossing identification card.
Act of 1917 — Physical defective.
Act of 1917, as amended — Departed from the United States to evade military service.
BEFORE THE BOARD
Discussion: The appellant, a single native and citizen of Mexico, has been excluded by a Board of Special Inquiry upon the grounds above-stated. The Commissioner has directed that the excluding decision of the Board be affirmed. The case is before us for review.
The appellant was admitted to the United States for permanent residence on May 5, 1924. In 1940, having continued to maintain his residence here, he registered under the Selective Training and Service Act of 1940. On August 13, 1942, he was classified 1 — A in the draft and thereafter was directed to report for induction into the armed forces of the United States. On November 19, 1942, he was inducted and was immediately furloughed for a period of 7 days. He was to report for duty at Fort McArthur, San Pedro, Calif., on November 26, 1942.
On November 25, 1942, the appellant went to Mexico so that he would not have to report for duty at Fort McArthur. He testified that he was motivated in so doing because of his ill health. Since his departure he has maintained his residence in Mexico and he is now listed by the Army as a deserter. If he should return to this country, he would be court-martialed on the ground of desertion.
The appellant now seeks admission for a period of 6 months in order to receive medical treatment and to visit his mother who lives in Los Angeles. Since he is not in possession of a visa or other consular document entitling him to remain here for 6 months, he is inadmissible on the documentary ground found by the Board of Special Inquiry. With respect to his inadmissibility as a physically defective alien, the appellant himself testified that his physical condition did interfere with his ability to work. In addition, the United States Public Health Service has certified him as afflicted with chronic pleurisy and arthritis, these defects being of such a nature as might affect his ability to earn a living. We believe that the ground of exclusion based on the appellant's physical defect is sustained.
The remaining ground of inadmissibility is based on that portion of section 3 of the act of February 5, 1917, which was added by section 2 of the act approved September 27, 1944, and which excludes from the United States 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 * * *". Notwithstanding that this alien's departure occurred prior to the effective date of the amendatory legislation, the provision does, as we have already held, have retroactive effect. Matter of J----, 56172/580 (November 2, 1945). Again, there is no question that from a factual point of view the alien did depart from the United States to escape military service. The only question here is whether, because of the fact that the appellant was in the Army at the time of his departure and is deemed to be an Army deserter, he is subject to the foregoing provision.
We held in Matter of C----, 56175/45 (February 23, 1945), that section 401 (j) of the Nationality Act which was added to that act by section 1 of the act approved September 27, 1944, did not apply to Army deserters. In support of our conclusion in that case, we said in part, "The use of the conjunctive in the phrase `training and service' in contradistinction to the employment of the disjunctive in the similar phrase in the companion provision, section 2 of the act approved September 27, 1944 which amended section 3 of the act of February 5, 1917, lends some support to the view that section 401 (j) was not aimed at army deserters." Thus, while there was no occasion in the C---- case to decide whether deserters were subject to the excluding provisions of the 1917 act as amended, we did there suggest the likelihood that they were. Obviously, Congress by employing the disjunctive in section 2 of the 1944 amendatory legislation must have intended to include within its scope a much broader class than that encompassed by section 1 where the conjunctive was used. Again, the evasion of "service" as distinguished from "training" or "training and service" can only occur after the person is in the armed forces. To say that military deserters were not meant to be subject to exclusion would in our opinion render the word "or" meaningless and in fact would result in reading the word "or" as "and." Congress could not have intended such a result.
Moreover, in reaching our conclusion in the C---- case, not only were we influenced by the difference in the language between sections 1 and 2 of the 1944 amendment, but also by the fact that to have construed section 401 (j) to apply to Army deserters would have meant that to some extent the provisions of this section and section 401 (g) would have overlapped. In this case, to construe the pertinent portion of section 3 of the act of February 5, 1917, as amended, to apply to army deserters would cause no overlapping with any other excluding provision of the immigration laws.
For these reasons, and in the absence of any legislative history clearly showing that section 2 of the 1944 Act was aimed only at so-called draft dodgers, we find the appellant inadmissible under section 3 of the act of February 5, 1917, as amended. The Commissioner's holding to the contrary in Matter of S----, 6019743 (October 5, 1945), and our approval of that holding in our order of October 8, 1945, are overruled.
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 seeks admission to the United States for a period of 6 months;
(3) That the appellant is not in possession of a visa;
(4) That the appellant has been certified by the United States Public Health Service as afflicted with chronic pleurisy and arthritis, such defects being of a nature which might affect his ability to earn a living;
(5) That the appellant's ill health has in the past interfered with his ability to work;
(6) That the appellant was inducted into the armed forces of the the United States on November 19, 1942;
(7) That on November 25, 1942, the appellant left the United States so that he would not have to serve in the armed forces.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 30 of the act of June 28, 1940, the appellant is inadmissible in that he is not in possession of a visa;
(2) That under section 3 of the act of February 5, 1917, the appellant is inadmissible in that he is physically defective, such defect being of a nature which might affect his ability to earn a living;
(3) That under section 3 of the act of February 5, 1917, as amended, the appellant is inadmissible as one who has departed from the jurisdiction of the United States during time of war for the purpose of evading service of the armed forces.Other Factors: There are no other factors.
Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed.