1611-9828.
Decided by Board December 7, 1954.
Expatriation — Section 401 (g) of Nationality Act of 1940, as amended.
An individual who deserted the Armed Forces of the United States in August 1950 and was thereafter convicted by a general court martial for desertion "in time of peace" (see Joint Resolution of Congress of July 25, 1947, terminating the state of war for certain purposes), was not expatriated under section 401 (g) of the Nationality Act of 1940, as amended, since that subsection specifies conviction for desertion in time of war.
EXCLUDABLE:
Section 212 (a) (22), Act of 1952 — Departed from and remained outside the United States during time of war or national emergency to evade military service.
BEFORE THE BOARD
Discussion: The case is before us on appeal from the excluding decision of the special inquiry officer of January 4, 1954. Counsel submitted a brief in which he contends the subject is entitled to entry into the United States for permanent residence as a citizen of the United States.
The appellant was born at Los Angeles, California, on February 17, 1930, of Mexican parents. When about a year old, he was taken to reside in Mexico. In 1937, he came to the United States, being admitted as a United States citizen at Laredo, Texas. While here, he served in the United States Marine Corps Reserve and was honorably discharged. He was called thereafter to active duty by the Marine Corps in June 1950, was duly enrolled, and was sent to Camp Pendleton, California, for training and service. He deserted about August 11, 1950, and departed to Mexico about 3 weeks later. In December 1950, he enrolled as a cadet in the Colegio Militar at Mexico City, Mexico. He left that institution in January 1951 and came to the border at Juarez, Mexico. He obtained a transit visa as an alien born in Mexico, presenting a Mexican form 5-C which he secured when enrolling at the Colegio Militar. He completed a transit through the United States to Tijuana, Mexico, entering at El Paso and leaving at San Ysidro. A few hours after arriving at Tijuana, he reentered the United States on January 18, 1951, and was admitted on his claim of being a native-born citizen and the presentation of a birth certificate.
While in the United States and sometime after January 1951, the subject was apprehended by the Naval Shore Patrol. He was tried by a general court martial about December 31, 1952, on the charge of desertion in time of peace. He was sentenced on January 2, 1953, to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for one year, and reduced in grade from private first class to private. About a week or so after release from confinement, he departed to Tijuana, Mexico, about October 10, 1953. He has remained in Mexico since then.
The grounds of exclusion found by the special inquiry officer are applicable to an alien. These grounds need not be discussed if it be found that the record does not establish expatriation and the subject's citizenship remains in question. In any case, the question of citizenship is our primary concern here.
The special inquiry officer concluded that the subject was an alien because the citizenship he acquired at birth by virtue of birth in the United States ( 14th Amendment, U.S. Constitution and R.S. 1992) had been forfeited under the expatriating provisions of section 401 (g) of the Nationality Act of 1940, as amended, by virture of his desertion in time of war and the conviction by court martial for desertion on or about August 11, 1950.
The pertinent portion of section 401 (g), supra, as amended by the Act of January 20, 1944, provides for expatriation of a citizen "Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by a court martial and as a result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces * * *." [Emphasis supplied.]
Counsel indicates the state of war was terminated before the desertion, insofar as section 401 (g), supra, is concerned, by virtue of section 3 of the Joint Resolution of Congress of July 25, 1947 (Chap. 327, 61 Stat. 451), but his quotation thereof omits an important part thereof. Section 3, supra, reads, "In the interpretation of the following statutory provisions, the date when this joint resolution becomes effective shall be deemed to be the date of the termination of any state of war heretofore declared by Congress * * *." A search of the several pages of the statutory provisions which follow this preliminary statement in section 3, supra, fails to reveal that the section 401 (g), supra, as amended, is specified therein. So far as we can ascertain, the last state of war was terminated on April 28, 1952, when Presidential Proclamation No. 2974 of April 28, 1952, declared the war between the United States and Japan then terminated.
But this does not settle the question before us, because there remains the fact that the subject was not convicted by court martial for desertion in time of war but was convicted for desertion in time of peace. We hold that the phrase in section 401 (g), supra, "provided he is convicted thereof" means convicted of the charge of desertion in time of war. The conviction, as shown in exhibit II, in this case was this charge: "Violation of Articles for the Government of the Navy, Article 8, Paragraph 21." This paragraph 21 deals with desertion in peace time. It is clear that the conviction here was on the charge of desertion in peace time. Accordingly, it is our view that expatriation under section 401 (g), supra, has not been established.
See 34 U.S.C. 1200, and Art. 8, Twenty-first paragraph thereof, R.S. 1624, Article 8, par. 21. Since the effective date of the Act of May 5, 1950, which is May 31, 1951, desertion is treated under section 85 of the Uniform Code of Military Justice, 50 U.S.C. 679, and its provisions replace the provisions in Art. 8, par. 21, supra, as to desertion in peace time and Art. 4, par. 6 of R.S. 1624, as to desertion in war time.
As a matter of interest, but separate and apart from the foregoing conclusion, it should be noted that the Joint Resolution of Congress of July 25, 1947, did specify among the statutes enumerated in section 3 (as to the interpretation of which war was to be deemed terminated as of July 25, 1947) the following: Revised Statutes 1624 Art. 4, par. 6 (34 U.S.C. 1200, Art. 4). See 61 Stat. 453. This is Art. 4, par. 6 of the Articles for the Government of the Navy, which relates to the offense of desertion in war time. Accordingly, it would appear that it was not possible for the subject to have been charged or convicted for desertion on August 11, 1950, as one who deserted in war time because of the provisions of the above Joint Resolution of July 25, 1947.
The special inquiry officer commented that had the subject not lost citizenship under section 401 (g), supra, he would have lost citizenship under section 349 (a) (10) of the Immigration and Nationality Act on the ground he departed to Mexico about October 10, 1953, for the purpose of escaping training and service in our armed forces during a period the President declared to be one of emergency. It is not clear from the record on what evidence such a conclusion could be based. In addition we find we are not sufficiently informed as to what may have occurred with respect to possible expatriation by virtue of what happened when the subject enrolled as a cadet in December 1950 in the Colegio Militar at Mexico City, Mexico.
Accordingly, the hearing will be reopened to have the question of the citizenship of the subject further developed.
Order: It is ordered that the hearing in this case be reopened for the purpose stated in the premises.