A-7038509
Decided by Board August 16, 1951
"Draft dodger" — Ground of exclusion — Section 3 of the Immigration Act of 1917, as amended — Alien departing from the United States for the primary purpose of escaping United States Military Service — Evidence.
The interpretation, that section 401 (j) of the Nationality Act of 1940, as amended September 27, 1944, should not operate to expatriate a citizen unless the evidence clearly shows that the citizen remained outside the United States for the primary purpose of escaping United States Military Service, should be followed in the case of an alien said to have departed from the United States for that purpose and therefore excludable on seeking to return, under section 3 of the Immigration Act of 1917, as amended September 27, 1944.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917, as amended — Departed from the United States to escape Military Service.
BEFORE THE BOARD
Discussion: This is an appeal from an order entered by the Acting Assistant Commissioner July 3, 1951, affirming appellant's exclusion at the port of Detroit, Mich., on January 17, 1951, on the grounds stated above. The appellant's exceptions to the order are stated in a letter directed to this Board under date of July 17, 1951.
The appellant is a native and citizen of Canada, male, 21 years of age, who originally entered the United States at the age of 4 years with his mother at Niagara Falls, N.Y., in 1934. The entry was not a lawful admission for permanent residence. He resided in the United States from 1934 to November 1, 1950, when he returned to Canada to reside.
The board of special inquiry has found the applicant inadmissible to the United States under the provisions of section 3 of the Immigration Act of 1917, as amended, in that he departed from the United States to escape military service. The appellant repeatedly testified during the hearing that the purpose of his going to Canada on November 1, 1950, was because he desired to join the Canadian Merchant Marine. We have repeatedly held in cases arising under section 401 (j) of the Nationality Act of 1940 that this section should not operate to expatriate a citizen unless the evidence clearly shows that the citizen remained outside the United States for the primary purpose of escaping Military Service, ( Matter of G---- M----, A-6605457, May 15, 1947 ( 2 IN Dec. 861); Matter of D---- R----, A-6489137, May 22, 1947; Matter of K---- S----, A-6661544, July 1, 1947). We are of the opinion that a similar interpretation should be followed in the case of an alien departing from the United States.
The appellant testified that he had made inquiry about joining the American Merchant Marine but due to the fact that he was not an American citizen and had no experience, this service was closed to him. He further testified that his only hope was to join the Canadian Merchant Marine and to make that possible he would have to move to Canada. He further stated that since he was residing unlawfully in the United States and being a Canadian citizen his return to Canada was necessary in order to correct his status as otherwise he would be subject to deportation. He testified that he reached this decision "possibly a year and possibly a little more" prior to his departure in November 1951.
Evidence of record establishes that the appellant informed his local draft board concerning his departure and forwarded his address in Canada to them. He was ordered on March 5, 1951, to report for examination on March 15, 1951. There is also a showing that the appellant discussed his case with the Canadian consul who advised him that under the circumstances he would be placed in an inactive category (4 (c) classification) in accordance with Selective Service regulations. Since the evidence established that persons in the age group of the appellant were not reached for call to service until March 1951, 4 months after the date of his departure it does not follow that the facts of the case reasonably give rise to the inference that the appellant was motivated by a desire to escape military service when he departed. We think a preponderance of the evidence shows that the appellant departed for Canada for the primary purpose of establishing his eligibility to join the Canadian Merchant Marine and to correct his immigration status in order that he may return to the United States on Canadian vessels as a seaman. The ground of inadmissibility is not sustained by the evidence of record.
Order: It is directed that the appeal be and the same is hereby sustained.