A-4558054.
Decided by Central Office May 10, 1946. Decided by Board March 18, 1947. Ruling by Attorney General June 9, 1947.
Ineligible to citizenship — Neutral alien files exemption from United States military service — Section 3 (a) of the Selective Training and Service Act of 1940 — Effect where alien's country later becomes cobelligerent.
An alien, who filed exemption from United States military service in 1943 as a national of a neutral country, thereby barred himself from becoming naturalized under the provisions of section 3 (a) of the Selective Training and Service Act of 1940, notwithstanding his being "called" for such service after his neutral country became a cobelligerent.
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE CENTRAL OFFICE.
(May 10, 1946)
Discussion: On June 16, 1944, the Board of Immigration Appeals directed that action be deferred in this case to permit the respondent to adjust his draft status. On March 5, 1945, the Board of Immigration Appeals ordered proceedings reopened to ascertain whether the alien volunteered for induction into the armed forces of the United States, and, if not, whether he had attempted to reship foreign. The reopened hearing was conducted on July 10, 1945, and findings as to relief from deportation were served upon the alien on December 14, 1945.
Upon consideration of the entire record the findings of fact and conclusions of law as to deportability proposed by the Presiding Inspector and served on the alien by mail on May 6, 1944, are hereby adopted.
The respondent is a native and citizen of Finland, aged 29, who last entered the United States on January 28, 1940, at New York, as a crew member ex — S.S. Mathilda Thorden. He was admitted as a seaman for a period not to exceed 60 days. At the time of his entry the respondent intended to remain in the United States indefinitely. He was not in possession of an immigration visa. He has never been lawfully admitted to the United States for permanent residence. He is subject to deportation on the documentary charge but not on the charge that he remained in the United States for a longer time than permitted. He has declined to apply for suspension of deportation but has applied for voluntary departure and preexamination.
The respondent testified that he was married in May 1944 to a native-born citizen of the United States and has a native-born child, born in July 1945; that his wife and child are totally dependent upon him for support. He has been employed as a wire splicer for more than a year, earning between $60 and $70 per week. His assets in the United States are approximately of the value of $4,500. A check of the police records indicates that there is no record of the respondent.
The respondent had executed DSS Form 301 (Request for Relief from Military Service as a Neutral Alien) on February 22, 1943, in which he stated that he is unwilling to serve in the armed forces of the United States and that he did not intend to remain in the United States permanently. He had been classified as 4-C under the Selective Service and Training Act of 1940, by his local board. In October 1944 the respondent appeared before his local board to volunteer for induction into the armed forces of the United States to withdraw his DSS Form 301, supra. When informed that, should he apply for citizenship after service in the armed forces of the United States, the question of his admission to citizenship would be a matter for the courts to determine the respondent stated that he was not interested in volunteering under those circumstances. The respondent testified that he appeared on three or four occasions subsequent to October 1944 before his local board for induction. The record shows that the respondent was advised by letters dated July 13 and August 20, 1945, that since Finland became a cobelligerent with the Allied Nations, the DSS Form 301, supra, filed by him was of no further effect in regard to the necessity for the respondent to apply for voluntary induction before being able to withdraw DSS Form 301, supra, and that he would be processed by his local board for induction in the same manner as any other registrant. The respondent was ordered to report for induction on July 24, 1945, at which time he was placed in class 4 — F, following his rejection as the result of a physical examination.
The respondent testified that he has made no efforts to depart from the United States as a seaman. He does not wish to do so.
In view of the respondent's record with his selective service board and, since the respondent has made no effort to reship foreign, the privilege of preexamination will not be accorded to him. However, since he has a wife and child in this country, he will be granted voluntary departure. Order: It is ordered that the respondent's application for preexamination be denied.
It is further ordered, That an order of deportation not be entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within 6 months after notification of decision, on consent of surety, and conditioned upon arrangements being made with the local immigration office for verification of departure. Departure in accordance with the foregoing will be deemed sufficient to cancel the outstanding delivery bond.
In accordance with 8 C.F.R. 90.3 the case is referred to the Board of Immigration Appeals for consideration.
Discussion: Respondent is a 30-year-old native and citizen of Finland. He last entered the United States at the port of New York on January 28, 1940, as a seaman. He then intended to reside here permanently but was not in possession of an immigration visa as required by section 13 of the Immigration Act of 1924. He is subject to deportation on the documentary charge contained in the warrant of arrest.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That respondent is an alien, a native and citizen of Finland;
(2) That respondent last entered the United States at the port of New York on January 28, 1940;
(3) That respondent then intended to reside permanently in the United States;
(4) That respondent was not then in possession of an immigration visa.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924 respondent is subject to deportation on the ground that at the time of entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That under sections 14 and 15 of the Immigration Act of 1924, respondent is not subject to deportation on the ground that after admission as a seaman he has remained in the United States for a longer time than permitted under said act or regulations made thereunder;
(3) That under section 20 of the act of February 5, 1917, respondent is deportable to Finland at steamship expense, if practicable; otherwise, at Government expense.Other Factors: Respondent has applied for voluntary departure and preexamination. In support of his application he points out that he is married to a native-born American citizen. As issue of this marriage he has a native-born minor child. At the time of the hearing he was gainfully employed as a wire splicer, earning $60 to $70 weekly. His assets in this country amount to about $4,500. His wife and child are totally dependent upon him for support. He has no criminal record.
On February 22, 1943, respondent, in accordance with section 3 (a) of the Selective Training and Service Act of 1940, as amended, claimed exemption from military service as a national of a neutral country. About one month after his marriage in May 1944 respondent appeared before this Board. He then indicated his willingness to serve in the armed forces in order that he might become an American citizen and remain here with his wife. We deferred action in the case to afford respondent an opportunity so to do. He thereafter contacted his local board and made inquiries about volunteering for military service. When he was advised that the question as to his eligibility for citizenship would be for the courts to decide, he apparently changed his mind about volunteering.
On April 5, 1945, Finland became a cobelligerent country. The local selective service boards were accordingly directed to delete Finland from the list of neutral countries and to process nationals of Finland for induction into the armed forces. Respondent's local selective service board canceled his IV — C classification, which was based on the fact that he had claimed exemption from military service, and directed him to report for induction. In July 1945 respondent was rejected by the armed forces, apparently because of a physical defect. On July 24, 1945, respondent's local board classified him IV — F.
See letter of November 22, 1946, from the Director of the Selective Service System to this Board. This letter is attached to the file and reads, so far as here pertinent, "For purposes of selective service administration, Finland became a cobelligerent country on April 5, 1945, the date on which amended Local Board Memorandum No. 112 was transmitted to field offices of the Selective Service System, such amendment deleting Finland from the list of neutral countries, in accordance with information received from the Department of State."
Under the first proviso to section 3 (a) of the Selective Training and Service Act of 1940, as amended, a neutral alien who claims exemption from military service is debarred from becoming a United States citizen. Section 28 (c) of the Immigration Act of 1924, as amended on October 29, 1945, defines the term "ineligible to citizenship" to include, among others, an individual who is debarred from becoming a citizen under section 3 (a) of the Selective Training and Service Act of 1940, as amended. Section 13 (c) of the Immigration Act of 1924, so far as here pertinent, excludes from the United States those who are ineligible to citizenship. The question raised here is whether respondent would now be inadmissible to the United States under section 13 (c) of the Immigration Act of 1924 because of his claim of exemption from military service, and hence, ineligible for preexamination.
When respondent filed his claim of exemption on February 22, 1943, he sought and obtained the benefits to which he was legally entitled under section 3 (a) of the Selective Training and Service Act of 1940, as amended, namely, exemption from military service. Having received the benefits of this statutory provision, he then became subject to the correlative penalties of the statute, ineligibility to citizenship. However, it must be remembered, respondent's status under the Selective Training and Service Act changed on April 5, 1945, when Finland became a cobelligerent. As of that date respondent was no longer legally entitled to claim exemption from military service as a national of a neutral country. And, parenthetically, we note that at that time this country was still engaged in active hostilities with Germany and Japan. That respondent could no longer claim the benefits of section 3 (a) of the Selective Training and Service Act of 1940, as amended, by reason of his nationality is conclusively evidenced by the fact that he was subsequently called for induction. Had respondent not been rejected because of his physical condition, and had he served in the military forces, we think that he would not now be barred from citizenship under the provisions of section 3 (a) of the Selective Training and Service Act of 1940, as amended. That result would follow from the decision in In re Gustavson (300 Fed. 251 (S.D. Cal., 1924)), where a similar provision in the First World War Draft act was involved. That provision (section 2 of the act of May 18, 1917, as amended by act of July 9, 1918) read:
That a citizen or subject of a country neutral in the present war who has declared his intention to become a citizen of the United States shall be relieved from liability to military service upon his making a declaration * * * withdrawing his intention to become a citizen of the United States, which shall operate and be held to cancel his declaration of intention to become an American citizen, and he shall forever be debarred from becoming a citizen of the United States.
In the Gustavson case the alien had withdrawn his declaration of intention and claimed exemption. Thereafter he served honorably in the United States Army. While his petition for naturalization was denied on the ground of his lack of attachment to the principles of the Constitution, the court said the following in regard to the effect of the alien's claim of exemption under the above quoted statute:
The intention of that act (the act of May 18, 1917, as amended on July 9, 1918) plainly was to fix a penalty where an alien declarant was relieved from military service; that is, if he withdrew his declaration of intention, so as to make effectual his claim for exemption from service, he should then "forever be debarred" from becoming a citizen of the United States.
In this case the Government did not relieve the declarant from service, and he actually did serve and receive an honorable discharge; hence no exemption right was accorded him, and he should not be held to have incurred the penalty fixed. The denial of his application should therefore only be because of his claim for exemption under the draft, and the record should not show that he incurred the penalty provided for under the act of July 9, 1918 * * *
The court's opinion in the Gustavson case does not indicate how the petitioner entered the Army. We do not know whether he volunteered, was mistakenly inducted, or whether the country of his nationality became a cobelligerent. But Gustavson did serve in the United States Army; respondent did not. Respondent's failure to serve was, however, not his fault; he was found unacceptable by the armed forces because of his physical condition. There was nothing he could do to enter the military services.
We do not think this factual difference to be of any importance. We think that the principle of the Gustavson case applies here. Respondent, as of April 5, 1945, was no longer legally entitled to claim exemption from military service. Like all citizens and all aliens, other than those of neutral countries, he became subject to military service. The benefits of section 3 (a) of the Selective Training and Service Act of 1940, as amended, could no longer be claimed by him. That being the case, we see no reason why he should be subjected to the penalties of that provision.
Cf. In re Siem, 284 Fed. 868 (D. Mont., 1922), aff'd, United States v. Siem, 299 Fed. 582 (C.C.A. 9, 1924). In that case a Norwegian, a declarant alien, registered in the draft. Prior to the amendment of the 1917 Draft Act on July 9, 1918, he claimed exemption on account of (1) dependents, (2) alienage, and (3) physical condition. He was classified I — A and called for induction. He was examined and rejected by the military forces as physically unfit. In connection with his claim of exemption on the ground of his alienage the court said:
"* * * the Government denied petitioner's claim of exemption, called him, in good faith he responded, and then it rejected him, because physically unfit. In these circumstances, to allow it to go back of that examination and resort to the denied claim to bar his admission, would be to sanction bad faith, and is not tolerable."
The Director of the Selective Service System is in accord with our position.
In his letter of November 22, 1946, the Director of the Selective Service System said, "* * * where the benefits derived by a neutral alien by the proper filing of DSS Form 301 no longer exists (exemption from training and service), it is our inclination that the penalties incurred by such action (debarment from obtaining United States citizenship) should likewise be removed. This opinion contemplates the situation where a neutral alien, who has filed a DSS Form 301, is later declared a cobelligerent alien, and thus subjected to training and service under the Selective Training and Service Act."
Respondent is eligible for preexamination. The Commissioner has, however, recommended that preexamination be denied because of "respondent's record with his selective service board," and the fact that he "made no effort to reship foreign." In the ordinary case we would not be disposed to permit an alien who had claimed exemption from military service to legalize his residence. But respondent does have a citizen wife and a native-born minor child both of whom are dependent upon him for support. To grant voluntary departure without preexamination, as the Commissioner proposes, would in effect cause an unfortunate family separation. It is only because of respondent's family ties that we think his application for voluntary departure and preexamination should be granted.
Order: It is directed that an order of deportation be not entered at this time but that the alien be required to depart from the United States without expense to the Government, to any country of his choice, within six months after notification of decision, on consent of surety. Departure in accordance with the foregoing will be deemed sufficient to cancel the outstanding delivery bond.
It is further directed, That preexamination be authorized.
As a question of difficulty is involved, the Board certifies its decision and order to the Attorney General for review.
The question involved is whether the above-named alien, a native and citizen of Finland, is ineligible for citizenship because he claimed exemption from United States military service during the time Finland was neutral.
The applicable provision of the Selective Training and Service Act (50 U.S.C. App. 303) reads as follows:
That any citizen or subject of a neutral country shall be relieved from liability for training and service under this act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States.
Mr. J---- last entered the United States on January 28, 1940, as a seaman, with intent to reside here permanently but without an immigration visa. He is therefore subject to deportation.
On February 22, 1943, he claimed exemption from military service as a national of a neutral country. Later when Finland became a cobelligerent, he was called for military service but was rejected, apparently because of a physical defect.
Mr. J---- married a native-born citizen of the United States in May 1944 and has one child, born of this marriage. The Board of Immigration Appeals has approved his application for voluntary departure and preexamination, holding that he is eligible for citizenship and, consequently, for readmission to the United States.
By the above-quoted provision of the Selective Training and Service Act aliens within the United States and of military age were required to elect whether they wished to assume the benefits and burdens of American citizenship and, if so, to subject themselves at that time to liability for one of its burdens. Mr. J---- elected not to do so. His wish was respected and he was, in fact, accorded the exemption provided in such cases. The language of the statute seems plain and I think the Congress intended that he should be bound by his election.
It has been urged in behalf of Mr. J---- (and others similarly affected) that he is not barred because his claim for exemption did not receive complete and uninterrupted recognition due to the fact that he was called for military service after Finland became a cobelligerent. In re Gustavson, 300 Fed. 251 (South. Dist. Calif. 1924); and In re Siem, 284 Fed. 868 (Montana 1922), affirmed 299 Fed. 582 (C.C.A. 9, 1924), are cited. Both cases arose under the Selective Draft Act of 1917 which contained a provision comparable to that under consideration. In each case the alien's claim for exemption failed to be accorded recognition. Gustavson actually served in the Army; Siem was called for induction but rejected as physically unfit. It will be observed that these cases are readily distinguishable, in the first place, for the reason that the claim for exemption received no recognition at all.
Until and unless the question of eligibility for citizenship be otherwise decided by the courts, I feel that I must give effect to the language of the statute and to the intent which I think moved the Congress in enacting the law.
For the foregoing reasons the decision and order of the Board of Immigration Appeals are reversed.