A-1075311
Decided by the Board February 10, 1953
Neutral alien — Ineligible to citizenship; claim of exemption by Turkish national from military service here.
(1) A Turkish national, who files an exemption from United States military service under the provisions of section 3(a) of the Selective Training and Service Act of 1940, under circumstances indicating his application was voluntary, who was not misled as to his rights with respect to citizenship, and who was aware of the consequences of his action, is ineligible to citizenship and thereby ineligible for suspension of deportation under the provisions of section 19(c) of the Immigration Act of 1917, the facts in this case being distinguishable from Moser v. U.S., 341 U.S. 41 and Machado v. McGrath, 193 F. (2d) 706.
(2) That the alien might have been subject to exemption from the draft as a medical student does not nullify for immigration purposes, the effect of filing a DSS Form 301, based upon a claim to exemption from military service as a neutral alien.
CHARGE:
Warrant: Act of 1924 — Remained longer — Visitor.
BEFORE THE BOARD
This is an appeal from an order dated April 16, 1952, by the Assistant Commissioner ordering the respondent deported on the ground stated above and denying the discretionary relief requested on the ground that the respondent was a person ineligible to citizenship.
Section 3(a) of the Selective Training and Service Act of 1940 (50 U.S.C. App. 303(a)) made an alien liable to service in the Armed Forces if he were residing in the United States, except that an alien who was a subject of a neutral country could apply for relief from service but thereafter was barred from citizenship. The issue presented is whether the respondent who made such a claim for exemption from service by filing DSS Form 301, is ineligible for citizenship.
Respondent, a 32-year-old single male, is a native and citizen of Turkey, who last entered the United States on September 9, 1939, when he was admitted as a student. He received extensions of his stay until July 21, 1945, beyond which date he has remained in the United States unlawfully. From 1939 to 1945, he was a student. During the last 3 years of that period, he was a dental student; prior to that period he was a student at a junior college.
On December 16, 1940, he registered for the draft and shortly thereafter was classified IV-C. On December 31, 1942 he filed DSS Form 301 and was continued in the same classification. On June 27, 1944, his request for a certificate of nonresidence was denied. On July 11, 1944, he was classified as a medical student.
Counsel contends that respondent was a nonresident of the United States insofar as the Selective Service Act is concerned and that it was error of the Selective Service Board to find him a resident. This contention must be rejected. On February 7, 1942, the Director of Selective Service promulgated Regulations sections 1611, 1612, and section 1613, the purport of which was that every male alien then in the country, or entering it thereafter, should be deemed to be "residing" here if before May 16, 1942, or within 3 months after his entry, which ever was later, he did not file an application to have his "residence" determined. Respondent had therefore the period between February 7, and May 16, 1942, to file such an application. He did not do so and it must therefore be held that at the time he filed the DSS 301, he was a resident ( Machado v. McGrath, 193 F.(2d) 706 (C.A.D.C.), certiorari denied, 342 U.S. 948; Mannerfrid v. United States, 200 F.(2d) 730 (C.A. 2, 1952), certiorari denied, 345 U.S. 918; Benzian v. Godwin, 168 F.(2d) 952, (C.A. 2), certiorari denied, 335 U.S. 886). Furthermore, respondent subsequently filed a request for a certificate of nonresidence. On August 25, 1944, respondent was notified that the Director of Selective Service had considered the request and had determined that respondent was "a male person residing in the United States" within the meaning of sections 2 and 3 of the Selective Training and Service Act of 1940. We have no power to change this finding ( Petition of Perez, 81 F.Supp. 591 (D.C.E.D.N.Y., 1948); Jeffries v. United States, 169 F.(2d) 86, (C.A. 10)).
Counsel contends respondent should be relieved from the consequences of his act because it was occasioned by a nonexistent danger, since at the time, the respondent should have been considered as a medical student and therefore not subject to draft.
A careful review of the record fails to disclose that at the time respondent filed DSS 301, he was in danger of induction. At that time he was classified IV-C. It appears that respondent executed the form to avoid the inconvenience to which he was put in responding to the draft board call for interview or information.
Furthermore, whether or not respondent, at the time of induction was not subject to induction on the ground that he was entitled to exemption as a medical student, is immaterial. The act does not require that an applicant for relief must be on the point of induction before he can file a request for exemption. The fact that the alien at the time may have been entitled to deferment as a medical student, left him still subject to liability for training and service under regulations which could have been promulgated by the Director of Selective Service. By submitting DSS 301, he was relieved from all such liability. He became not a person deferred from service but one ineligible for service (see Petition of Perez, supra).
Counsel contends that respondent was induced to submit DSS 301 or misled when he submitted it. We believe it appropriate therefore to set forth the testimony of the respondent bearing on this matter.
The hearing of October 20, 1947, discloses the following:
Q. You mentioned that you did not understand the purpose or seriousness of signing this form. Will you explain?
A. When I was at the dental school in San Francisco as a sophomore I received a notice from the Selective Service Board for a classification. The Selective Service Board at Berkeley requested me to appear and I went there. There were two other Turkish boys, Turkish citizens, and the clerk, Mrs. D---- R---- and the boys were having some argument and then she said if you sign this paper you will be relieved. It sounded to me very reasonable to sign this paper because my program to study was so heavy and by signing that I would not be bothered again and so I signed, by suggestion of the clerk.
The hearing of April 12, 1948 reveals the following:
Q. When you signed this Form DSS 301, did you sign it for the purpose of avoiding military service or for some other reason?
A. Not for avoiding military service. The purpose in my mind was at that time my studies were so heavy I could not take time to go from San Francisco to Berkeley to arrange procedure and, so, I thought signing this form would not keep me absent from my studies.
Q. Did you yourself suggest the signing of the form or was this suggestion given to you by some person in the Induction Center, or wherever it was you signed it?
A. No. I did not know anything about the form until that time. The clerk, Mrs. D---- R---- took the form out. As a matter of fact, whether I could draw this or not I do not know. There were two other Turkish students at the Board. They were quarreling and I think Mrs. R---- was rather mad at the boys and she said, take this paper and sign this and you will not be bothered. I grabbed the paper.
* * * * * * *
Q. They signed the paper too at the suggestion of this Mrs. R----?
A. Yes. I think the argument went on prior to my coming to the Board; that they were citizens of a country which was neutral; that they should not be asked for service and so forth. I think they argued and had misunderstanding and the simplification was that they sign the paper.
From respondent's own testimony it is clear that he voluntarily requested the DSS 301 Form after overhearing a conversation addressed to others; that he was concerned with the necessity of being absent from his studies to comply with Selective Service requirements; and upon being furnished information that by submitting the DSS 301 he would be relieved from such annoyance, he submitted it. We cannot find that he was misled or induced under such circumstances. In arriving at our determination we have taken note of exhibit 3, a statement of the Local Selective Service Board, that the DSS Form 301 was filed at the request of the then chief clerk of the Board. We believe this statement must be viewed in light of the respondent's explanations as to what occurred at the time. The case of Moser v. United States, 341 U.S. 41, referred to by counsel as one where the alien was misled, is distinguishable from the instant case on that very ground. Moser was led to believe he would not lose his rights to citizenship. Moreover, the expressed waiver of citizenship had been deleted on the DSS 301. This was not so in the instant case.
Counsel contends that testimony set forth on page 10 of the hearing of October 20, 1947, reveals that in submitting the DSS 301, respondent did not realize what he was signing. The hearing officer concluded that in submitting the DSS 301, respondent understood its provisions and effect.
The following pertinent testimony in addition to that previously set forth appears on page 10 of the hearing of October 20, 1947:
Q. I call your attention to the following, which appears in the application, DSS Form 301: "I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States." Were you aware of that wording at the time you executed that application?
A. I did not ask for the application. The application was presented to me.
Q. That is not quite responsive to my question. Were you aware of the wording shown in the application at the time you signed?
A. Yes, I think I was aware of that.
Q. Did you understand the effect or the complete meaning of that wording?
A. I knew there was something about citizenship — something in connection with that. I did not, of course, realize the seriousness of the paper at that time.
Q. Did you understand at that time that the execution of that form debarred you forever from becoming a citizen of the United States?
A. No.
In support of his contention, counsel relies upon Machado v. McGrath ( supra). In the Machado case the court held that a person who was unable to read or write the English language with full comprehension so that he did not fully understand the nature of the DSS Form 301, who moreover was misled by the draft board clerk to believe he was claiming exemption as a nonresident alien rather than as a resident neutral alien to whom the citizenship bar applied did not have the opportunity to make an intelligent election between being subject to the draft on one hand and being exempted but losing the right to become a citizen on the other.
We have carefully examined the testimony of record and arrive at the conclusion that a reasonable interpretation of the testimony suggests that the respondent was either aware of the nature of the document he was signing and its consequences or that at the minimum, he was fully able to understand the nature of his act. Respondent had had two years of junior college in the United States and at the time of making his election, was a second year dental student. There is nothing in the record to indicate that he was incapable of intelligently understanding English. He was aware that the Turkish consul had advised students to sign certain forms so that they would not be involved in military service. He knew that the application he submitted bore the statement that the making of the application would debar him from becoming a citizen of the United States. He testified he knew that the paper concerned citizenship. At that time he did not intend remaining in the United States after completing his studies. He intended returning to Turkey. He was aware of the fact that if he did serve in the armed forces of a country other than Turkey he would lose his Turkish "diplomatic exemption." His primary concern was with the completion of his studies. It was a concern so deep that he was perturbed at the thought of having to take time from his studies to comply with the request of the draft board. Respondent does not allege that he was told by the draft board official that the paper would not bar him from becoming a citizen, he was merely told he would not be bothered if he signed the paper. We believe at the time he executed the document, he knew what he was doing; and that at the minimum, the opportunity to make that intelligent election was present.
In 1942, in claiming exemption from the processes of the Selective Service and Training Act, he did what appeared to him to be reasonable; he did not then have the foresight to see that subsequently he would find it desirable to remain in the United States. His decision was made deliberately to achieve certain benefits at a price which was merely the surrender of an inchoate privilege to which respondent then had no desire to give substance. The desire that now presses comes too late, for we have no authority to divorce the consequences from the act. The respondent is an alien ineligible to naturalization by reason af his filing the DSS 301.
His application for suspension of deportation is filed under section 19(c) of the Immigration Act of 1917, as amended, and should be determined under that Act (Public Law 414, Section 405). As an alien ineligible to citizenship for reasons other than racial, the respondent is legally ineligible for suspension of deportation under the express provisions of section 19(c) of the Immigration Act of 1917, his application for suspension of deportation must be denied ( Matter of C----, A-3235686, Atty.Gen. 1950, 4 IN Dec. 130).
Since respondent is a person ineligible to citizenship, he is inadmissible to the United States and is ineligible for the issuance of a visa (Public Law 414, sec. 212(a)(22)) except if he seeks to enter as a nonimmigrant. He is therefore ineligible for preexamination, one of the prerequisites of which is the ready issuance of an immigration visa.
Under section 244(a)(1) of Public Law 414 which became effective December 24, 1952, the respondent would not be legally ineligible for suspension of deportation by reason of the fact that he was in eligible to naturalization. We do not have an application for such relief before us, nor is it necessary that we determine whether he meets all requirements of that section. This is so, because we do not believe that suspension of deportation should be granted to the respondent as a matter of discretion. The respondent entered in 1939 and was permitted to stay as a student. After his status as a student terminated, he made no effort to depart but shortly thereafter without any attempt to enter the United States legally for permanent residence, established himself as a dentist. At the time of the hearing he was unmarried and there was no one in the United States dependent upon him for support. We do not believe, that even if legally eligible for the relief, he should be granted suspension of deportation.
Respondent's good moral character is established by the record. His claim for exemption from military service was permitted by law and he should not be criticized for making the claim. In 1944 he made an effort to withdraw his claim for exemption. His desire to remain in the United States at this time should not be the basis for a denial of discretionary relief. We will therefor grant him voluntary departure with the proviso that if he does not depart within the time permitted, he shall be deported from the United States.
Order: It is ordered that the outstanding order of deportation be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 30 days, and under such conditions as the officer in charge of the District deems appropriate.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.
It is further ordered that the application for suspension of deportation, voluntary departure and preexamination be denied.